30.5.15

Three articles on divorce

For easy reference, here are the links for the three articles on divorce previously published in my Trade Tripper column in BusinessWorld:

> Divorce means freedom? Not really. Nor is it free.
> Divorce is just a bad idea.
> Divorce and the progressive ambition to destroy the family

Now is not the time to rush a competition law

was my Trade Tripper column in the 22-23 May 2015 weekend issue of BusinessWorld:

Last Tuesday, the House of Representatives passed on third reading House Bill No. 5286 (or the substitute bill on the Philippine Competition Act). Speaking to reporters, House Speaker Feliciano Belmonte had been quoted as saying, “We hope this will become a law in this Congress, it will be for the benefit of Filipinos. It’s a [piece of] legislation that is very much needed.” This column vehemently disagrees: a Philippine competition law is not urgently needed. And even if passed, the law as currently constructed will hardly deliver the benefits its advocates insistently promise to our citizens.

The logic of the Philippine Competition Act seems to be is that to further regulate the market will set it free. Which is irony at its best. We know from trade policy history that regulation generally never benefits consumers, usually resulting in protectionism harmful to the economy. And we know that monopolies are created precisely because of regulations: that such regulations before had to do with tariff barriers and subsidies and now identified as monitoring and review really is of no difference.

Besides, the point of the Philippine Competition Act is to “prevent economic concentration, which will control the production, distribution, trade or industry that unduly stifle competition, distort, manipulate or constrict the discipline of free markets.” However, by any international standard, this is not the urgent problem of the Philippines.

We must consider that, competition-wise, we are not as ramshackle as others would have us believe. The Global Competitiveness Index gave us good marks for “intensity of local competition” (61), “effectiveness of anti-monopoly policy” (72), “prevalence of trade barriers” (51), and “prevalence of foreign ownership” (51).

Under the 2015 Economic Freedom Index, the Philippines has reasonably high marks, being categorized as “moderately free” but charting “an upward trajectory of economic freedom for the past five years.”

The Philippines ranks high (60 out of 186) in “investment freedom,” described as where there are “no constraints on the flow of investment capital.” In trade freedom” (the “composite measure of the absence of tariff and non-tariff barriers that affect imports and exports of goods and services”), the Philippines ranks a good 75.4.

Instead, the Economic Freedom Index points as problems areas such as “corruption” and an “inefficient judiciary.” And this column has pointed to areas such as low productivity, high unemployment, red tape and the bureaucratic difficulties in doing business, energy and transport costs, smuggling, traffic, and increasing teenage pregnancy and marriage annulment rates.

In short, the real fundamental economic problems that the Philippine economy faces will not be, can never be, addressed by the present Philippine Competition Act.

However, even limiting the discussion to the area that the Philippine Competition Act ostensibly seeks to resolve (i.e., monopolies and cartels) yields quite unconvincing conclusions.

The Philippine Competition Act works on this quite simplistic assumption: monopolies are bad and government is the solution. But note, not even our Constitution sees monopolies in such light: the “State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.”

But as Lisa Campbell, senior deputy commissioner of the Canadian Competition Bureau, remarked (during the Fifth Annual International Antitrust Forum last year): “The size of a business, even one that dominates a particular market, is not in and of itself, a cause for concern. Businesses may need to become large to achieve lower production costs or to compete against foreign and domestic competitors.”

Indeed, the size of our market should lead us to appreciate the idea of “natural monopolies,” whereby maximum efficiency is derived by way of economies of scale through one or two suppliers.

As such, Filipinos should be supportive of even larger Filipino conglomerates. Take San Miguel Corp. (or PLDT or PAL), for example, which, despite its size and reach, could not really be considered possessing monopoly power due to the nature and threat presented by global (or regional) competition.

In reality, a Philippine Competition Act is far from being a necessity, at least for the present. With the many laws that we have now, the best anti-monopolization measure we can rely on is for the government to strictly enforce the rule of law. That is clearly better than adding a further layer of bureaucracy and further strain on the governmental budget.

Instead, as I have long suggested, if we must have a competition law, then let it include provisions that addresses the possibility of foreign corporations sneaking up in acquiring Filipino companies or influence to the point that monopoly powers are exercised from beyond Philippine jurisdiction, constricting Filipino entrepreneurial efforts, and damaging local consumer interests. And let us explore more vigorously the idea of implementing the “effects” doctrine as a manner of acquiring jurisdiction over those who seek to damage Philippine economic interests from abroad.

All in all, there’s really no harm if we take more time to craft a really effective competition law.

18.5.15

Compilation of articles on the Bangsamoro issue

For easy reference, I am listing here some selected articles I wrote for BusinessWorld on the Bangsamoro issue.

However, to start, here is my Submission to the Ad Hoc Committee of the House of Representatives on the Bangsamoro issue.

The BusinessWorld articles (selected) are as follows:

- CAB and BBL: The two towers of secession
- The Bangsamoro's international law gambit
- Bangsamoro and the myth of historical baggage
- Of constitutional interpretation and Bangsamoro Basic Law
- Bangsamoro: a question of consistency and constitutionality
- Bangsamoro: an Islamic State

A TV interview I gave on the issue can be found here.

A compilation of articles I wrote on the MOA-AD can be found here.

17.5.15

Divorce and progressive ambition to destroy the family

my Trade Tripper column in the 15-16 May 2015 weekend issue of BusinessWorld:

The thing is: many (but definitely not all) of those advocating for divorce want the traditional family structure of biologically related father, mother, and child be rid of. And I’ve received comments related to my previous article Divorce is just a bad idea (08 May issue) where people implicitly declared they are not against the idea of traditional marriage being done away with.

Which isn’t surprising when one remembers that “no-fault” divorce actually originated from that long-held communist objective to destroy the traditional family. As related by Donald M. Bolas (“No Fault Divorce: Born in the Soviet Union?”, 1975), the Bolsheviks regarded the traditional family as a “bourgeois” institution. When they came into power in 1917, they systematically set out to destroy it.

Interestingly, one of their first moves was to remove the classification “illegitimate children.” Ostensibly to equalize the legal status of all children, the real aim was to diminish the value of being born in wedlock.

After that came the measures to coercively redefine marriage. For communist Russia, marriage became simply a “State action,” with divorce an administrative process. Note that the no-fault divorce created by the communist State was actually unique in that it is arguably the first kind of lawsuit where the complainant (the person petitioning for divorce) does not even have to provide reasons or prove his claim. There is just no defense available for the respondent in this type of case.

And since this kind of divorce is very easy to come by, it is no surprise then to hear accounts of people being married twenty times. This was actually encouraged by the communist government, even setting up a “free love” bureau where people could hook up with like-minded partners.

The practice, according to Mr. Bolas, reached the United States and infiltrated its legal system. The US today has no-fault divorce as a norm, where every first marriage practically has a 50-50 chance of being ended by it (subsequent marriages have even higher percentages of heading to divorce).

But the question is: why would communists and their presumptive heir, today’s Progressives, be so against the idea of traditional marriages?

The key lies with our social system called “subsidiarity”: the principle that essentially says individuals should have the freedom to choose and act responsibly for themselves in achieving the common good. If individual action is too difficult, then the family steps in, then the neighborhood, then the town. Only when really necessary does the national government come in the picture. In subsidiarity’s framework, religious and non-governmental institutions play a crucial role in the formation of peoples’ character.

Progressives would have none of that. Ideologically believing they know better than you in how to run your life but history having proved them unelectable, they instead patiently engaged in the indoctrination of the bureaucracy (as well as the academe and media). And having achieved control (at least intellectually) of a substantial part of those sectors of society, they now hungrily attempt what they’ve long sought against their rivals in influence: the removal of religion and the traditional family.

Measures supportive of contraceptives, divorce, and same-sex marriage, as well as labeling religious belief as bigoted or medieval, are all designed to eradicate religion and the family’s influence on people and instead have the people dependent exclusively on government; all for the purpose of achieving the Progressive ambition of dictating the peoples’ thought and beliefs.

Relatedly, it also becomes understandable why the mere suggestion that better marriage preparation and counseling are more effective remedies than divorce would be met with violent derision by divorce advocates. Because, the fact is: it’s true.

Because funnily enough, the best marriage preparers and counselors happen to be not secular facilities (all usually under government regulation) but rather religious institutions.

Because contrary to the Progressive lie that no difference exists between religious and non-religious couples (at least as divorce rates are concerned), Georgetown University’s Center for Applied Research in the Apostolate found in 2013 that, even in “divorce-is-completely-acceptable-US,” Catholics have way lower divorce rates: “Catholics stand out with only 28% of the ever-married having divorced at some point.”

Compare this with a divorce rate of 40% for those with no religious affiliation. As one commentator puts it: “The factor making the most difference is religious commitment and practice. Couples who... take their faith seriously enjoy significantly lower divorce rates than mere church members, the general public and unbelievers.”

What’s more, University of Denver sociologists found that: “Whether young or old, male or female, low-income or not, those who said that they were more religious reported higher average levels of commitment to their partners, higher levels of marital satisfaction, less thinking and talking about divorce and lower levels of negative interaction.”

So while this column took pains to defend traditional marriage without resorting to religious arguments, it would appear that religious beliefs should indeed have a say in the public square after all.

Divorce is just a bad idea

my Trade Tripper column in this 8-9 May 2015 issue of BusinessWorld:

After my article “Divorce means freedom? Not really. Nor is it free” (April 24 issue) came out, I’ve received quite a number of comments -- many nonsensical, a few quite interesting and raising relevant arguments. None, however, addressed the particular point I made about the nature of divorce drawing in greater (if not total) State control over ordinary families. The same could be said about the economic costs of divorce, both on the family and on the country in general.

Some of the comments came from foreigners (because they indicated themselves as such), saying that my Catholic views have no place in a public debate. Which is ridiculous for two reasons: First, because this is as meritorious as me saying foreigners have no right to comment on a Philippine issue; and, second, because my article never even referred to Catholic doctrine at all.

A few did say that they’ve gone through a divorce, and are quite happy now, financially secure, with children healthy and maturing well.

Well, good for them. But many studies would find they’re the exception rather than the rule. And one can’t simply make legislation overturning centuries of tradition and history for the exception.

In any event, the studies we do have indicate that only a small percentage of divorces in the United States involved conflicted or irreparably broken marriages. The greater number of divorces arose from such relatively mundane reasons as “falling out of love” or “burnout.” Better marriage preparation or counseling can resolve this.

As for really conflicted marriages, which I repeat is in the minority, they often involve drugs, alcoholism, physical abuse, or homosexuality and these are already covered by our laws on legal separation.

Incidentally, the one ground that local divorce advocates keep using to make their case is that of “domestic violence” (or physical abuse). In reality, this actually ranks quite low as a cause for divorce (at least in the US). In some surveys they don’t appear at all.

Which makes sense. Marriage is actually a good protection against physical abuse -- it’s the jumping from one relationship to another that increases the chance of coming across an individual prone to violence. And anecdotal evidence would show that instances of incestuous rape happen more often to children with separated parents, the rapist more likely to be the new “stepfather” or “step-relative” of the child.

Still, why not allow for the transition from legal separation (that doesn’t permit remarriage) to divorce (which does)? After all, shouldn’t people have a second shot at happiness in life? Related to this is the “fire escape/safety valve” argument in favor of divorce. These are pretty good arguments, frankly. But in the end, they have to be rejected.

There are several reasons: One fundamental, a number practical. One practical reason: Should society really allow the junkie, alcoholic or abuser to inflict his behavior on a new spouse?

Another is the effect that a law constructed for a minority (i.e., really conflicted marriages) may have on the majority (ordinary marriages with its normal ebb and flow). Studies show that divorce laws (particularly “no-fault divorce”) historically contribute in encouraging the breakup of marriages exponentially through time (with US studies indicating increases at 10% annually, with one giving a high rate of 88%).

But the fundamental reason is this: Marriage has a specific definition by its nature. A definition not constructed (but merely recognized) by the State. Nor is it a social construct. Rather, the definition comes from our logical understanding of human nature independent of our wills or passing emotions and borne out as true by history.

Robert George’s formulation is quite useful for the present discussion: “Marriage is a comprehensive union, made possible by the sexual complementarity of man and woman, ordered to the all-encompassing goods of procreation and family life.”

As such, marriage has the following essential elements: heterosexual, monogamous, exclusive, and permanent. To eliminate an element is to cause a redefinition of marriage, which inevitably will present profound implications on our society.

In fact, it is this matter of redefinition that one sees the connection that the national debate on divorce has with the debate on according legal recognition for same-sex marriage.

To redefine marriage allowing for its non-permanence (i.e., divorce), one removes a principle that effectively excludes polygamous marriages. With divorce, there’s no difference between a serial and simultaneous polygamist. And yet, one must remember that marriages are also for the psychological and material welfare of children.

And since redefinition is possible, there is then no reason not to redefine marriage to include homosexual couplings -- thus removing a fundamental principle (that of marriage being directed to the procreation of and care for children) that excludes all other types of personal relationships (“throuples,” bestial, incestuous, social, etc.) that people’s fervid imaginations can care to create.

In which case, there is really no point then in having marriage at all.

K-12 and the call for liberal education

my Trade Tripper column for the 1-2 May 2015 issue of BusinessWorld:

Perhaps the phrase that best captures today’s zeitgeist is “be yourself.” Which is usually meant to underline another boomer principle: “As long as it feels good, do it.” But ultimately, such exclamations are confused. And it begs the question: What is your “self”? What is meant by “self”? One can be clever and invoke various philosophers (or, more likely nowadays, that would be “new age” gurus or “free thinkers”) to describe what that “self” is. Which is all fine and good, but it usually forgets that the choice of self has real world consequences.

This was actually homed in on me a few weeks ago when a prominent legal mind told me, in quite aghast tones (if I may add), that “even in judges’ seminars and courses, the sessions that take up crucial and foundational issues” (i.e., that seek to determine the meaning, history and context of concepts like “justice,” “equality,” “fairness” and “common good”) are dismissed by the judicial participants as “irrelevant.” Instead, what is relevant for them are technical law-school level questions: “How do you deal with a petition for quo warranto?” “How do you enforce a foreign arbitral award?” But, as stated by my friend, “issues that actually address what it is that justice demands are considered as non-issues by the very people who administer justice. Pathetic.”

Josef Ratzinger once insightfully pointed out: “Man is more than just a biological entity; he is composed also of intellect, language, history, community.” Unfortunately, today’s dominant attitude is to disregard any effort leading to a proper understanding of the self and an objective standard for that self (i.e., the natural law). Under the guise of “pluralism” and “tolerance,” society today has ironically decided to turn its back not only on traditional values but also on reason itself, deeming such to be oppressive and -- with even greater irony -- baseless.

Today, more than ever, liberal education is of great importance. It remains to be seen whether the K to 12 shift would effectively remove any semblance of classical liberal education from our system. I say “classical” because liberal education today has mostly become a farce: becoming instead a platform for anti-religion, anti-American, anti-reason, or anti-whatever type of ideological bias.

Progressives or the Left have much to be blamed for this. As Thomas Sowell puts it: “Liberal professors have trashed the liberal arts, by converting so many liberal-arts courses into indoctrination centers for left-wing causes and fads, instead of courses where students learn how to weigh conflicting views of the world for themselves.”

And this depreciation of the importance of critical thinking has been further damaged by the Left’s ruthless and relentless push for political correctness. Robert George writes: “At campuses across the country, traditional ideals of freedom of expression and the right to dissent have been deeply compromised or even abandoned as college and university faculties and administrators have capitulated to demands for language and even thought policing. Academic freedom, once understood to be vitally necessary to the truth-seeking mission of institutions of higher learning, has been pushed to the back of the bus in an age of ‘trigger warnings, micro-aggressions, mandatory sensitivity training, and grievance politics.’”

And a further twist on the progressives’ twisting of reality: the charge that religions (particularly the Catholic Church and “Catholic” educational institutions that honestly teach proper doctrine) impose absolute homogeneity of thought. Which is rubbish.

If it’s true that the Catholic Church or universities that teach Catholic doctrine properly were indeed brainwashing the faithful or students, respectively, then clearly they’re not doing a very good job at it. Anecdotal evidence or proper surveys would very likely show a healthy variety of opinions among the faithful and of the said students on the different issues confronting the country today.

Compare that to the faculty and students of the more “progressively Catholic” or secular universities where the opinions are practically homogenous and an expression of a contrary opinion (like supporting traditional families or that gender differences are not social constructs) would be met by apoplectic reactions that look like epileptic seizures.

The latter is not liberal education. It is leftist indoctrination. True liberal education is best expressed by Princeton’s recently declared policy on academic freedom: “Education should not be intended to make people comfortable, it is meant to make them think. Universities should be expected to provide the conditions within which hard thought, and therefore strong disagreement, independent judgment, and the questioning of stubborn assumptions, can flourish in an environment of the greatest freedom.”

Finally, in a society where emotionally troubled schoolchildren are on the rise, children who are simply unable to handle stress or the ordinary demands of life, a true liberal education has a profoundly important thing to offer that those pushing for K to 12 (which emphasizes science, technology, economics and math; all leading towards better employability) may want to consider: self-mastery.

Divorce means freedom? Not really. Nor is it free.

my Trade Tripper column in the 24-25 April issue of BusinessWorld:

There is a near universal consensus that divorce is a good thing to be had in the Philippines. Many surveys claim that a majority of Filipinos are in favor of divorce laws. And the Philippines, after all, is one of only two countries in the world that still do not allow for divorce. But near unanimity does not make right. There was a time when everyone thought the world was flat.

The arguments for divorce are varied and multi-layered. But many, to be frank, are not serious. Some want divorce simply because the Catholic Church is against it. Others’ motivation is hatred for the so-called patriarchy. Which is silly. The Philippines ranks among the world’s best for a woman to live in, fourth in the world with most women managers (including the media), had two women presidents, a presiding Chief Justice (with associate justices), and numerous members of Congress.

Instead, this article seeks to put forth preliminary thoughts on one argument relatively worthy of consideration: the idea of divorce as embodying people’s “freedom to choose.”

On “freedom,” so the argument goes, people should have the right to decide how to go about their lives. By not having a divorce law, unhappy married couples are forced to be stuck together or have to go through the more difficult, more expensive “annulment” process. A divorce law, so it is said, makes it easier for people to get out of the married state faster and cheaper, and to get on with their lives as quickly as possible.

Only, that’s not how reality works.

There are two avenues for divorce currently being proposed: the “fault” divorce (e.g., those related to legal separation or psychological incapacity) and “no-fault” divorce (i.e., “irreconcilable differences”). Both require that they be proven in court, without collusion between the parties as certified by the State. These require expenses related to gathering evidence and legal representation, all quite similar to the annulment process.

But even assuming the proposed “no-fault” form of divorce does result in the quicker grant of divorce decrees, every divorce inevitably results in the need to give alimony or support, as well as (if there are children) the matter of visitation rights.

And this is where the “freedom” argument goes awry: whereas ordinary married couples are generally free any way they want to privately pool their resources, bring up their children, use their assets, and live and work where and how they please without State interference, every divorce decree essentially stems from a public conflict that draws the State in to interfere and control the family’s future: from tracking (and even prosecuting) errant parents, determining the children’s upbringing, regulating visitation, enforcing support, and monitoring the wealth size of the estranged couple.

Furthermore, the “freedom” argument presupposes that both couples agree to the divorce. Anecdotally, a majority of the annulment cases filed were opposed or not agreed to by the non-petitioning party.

Think about that in relation to the proposed no-fault “irreconcilable differences” divorce scenario: if marriage is indeed a contract (albeit “special,” but let’s forget that for now) which both parties freely decided to enter into “until death do they part,” what then is the justification to allow one party to unilaterally terminate that contract?

In other words, where is the freedom of choice for that other “no-fault” party who wants to go on and make the marriage work?

Now relate that in economic and development policy terms: can one logically create a stable, prosperous society (i.e., necessitating planning, assembling assets, collecting wealth, training youth) whose foundation is built on a multitude of contracts designed (and at the time of entry, agreed) to be permanent but in actuality can be unilaterally terminated anytime for any reason?

The final “freedom” argument boils down to this: the government must remain neutral and give couples the individual freedom to divorce.

This position is misguided.

The government never is neutral. And when it inescapably chooses a side, it will inevitably affect all Filipinos -- whether they be for divorce or not.

If it legislates for divorce, the government essentially chooses a side that overturns centuries of established Philippine marriage tradition. Furthermore, the government’s divorce stand (advertently or not) supports the probability of increasing divorce cases (by one account, as much as 88%), divorce cases that the government will need to enforce, monitor and regulate for years (even decades) -- the costs to be charged not to the divorced couple but through taxes paid by the greater majority of married Filipinos.

The foregoing treads alongside the context of numerous studies tying divorce rates with depreciated child learning and psychological health, lowered adult productivity, and significant damage to overall economic and social development.

Three other things to note: One, no religious arguments were made here. Two, there is a need for people to appreciate a better meaning of “freedom.” And three, despite people’s strong denial of it, marriage is more permanent than is realized.