Senator Marcos' substitute BBL

my Trade Tripper column in the 14-15 August 2015 weekend issue of BusinessWorld:

Well, at least we know that one senator is working rather than being merely engrossed with political persecution or positioning for the presidency.

Senator Ferdinand “Bongbong” R. Marcos, Jr. released his “substitute” Bangsamoro Bill (Senate Bill No. 2894 and entitled, quite significantly I may add, the “Basic Law for the Bangsamoro Autonomous Region”) and it does seem like a better alternative to the disastrous (and highly unconstitutional) Bangsamoro Basic Law (BBL) that the House of Representatives still seem intent in passing.

Purportedly embodying the results of 12 public hearings, including those with “the Moro National Liberation Front, Sultanate of Sulu, indigenous people, religious groups,” as well as 115 amendments (equivalent to 80% of the original legislation), Senator Marcos’ product clocks in at 100 pages. But it is the contents thereof that are so far impressive.

With the caveat that more time is needed to study the minutiae of Marcos’ proposal, nevertheless, from the opening pages alone it does make one important change and that is the expression of the Constitution’s clear supremacy over the Bangsamoro.

The “original” BBL bizarrely made itself subject not only to the Constitution but also to “international law”, “system of life prescribed by [Muslim] faith”, and “harmony with our customary laws, cultures, traditions”.

Marcos’ version corrects this strange theocratic language, pointing out that “the Bangsamoro Autonomous Region” is a “political subdivision created by the Bangsamoro Basic Law which is an Autonomous Region as provided in Sec. 15, Article X of the 1987 Philippine Constitution,” and that the “Bangsamoro Autonomous Region forms an inalienable part of the Philippines.”

As for traditional Islamic institutions (presumably such pertaining to the “system of life prescribed by [Muslim] faith” mentioned in the original BBL), this has been properly relegated to that of a consultative function, with the “right to submit position papers, memoranda and proposals to Congress and to the Executive.”

And it goes on: the Bangsamoro Regional Government is expressly made to renounce “war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.” This should include acquiescing to the fact that “secession” is anathema under international law.

Finally, the Republic -- under Marcos’ version -- reserved for itself the power over foreign relations, including that of global trade, except for certain functions delegated to the Bangsamoro Regional Government but again with the proviso that such function be subservient to the Constitution. This is significant because the Comprehensive Agreement on the Bangsamoro and the original BBL surreptitiously attempted to create a new State by resorting to the subtle act of providing capacity to engage in foreign relations as one of the powers of the Bangsamoro.

One immediate beef I do have with the Marcos version is that the necessary plebiscite ratifying the draft law involves only voters from the affected “constituent territories” or, in other words, those in “the present geographical area of the Autonomous Region in Muslim Mindanao (ARMM); the cities of Cotabato and Isabela; and those qualified for inclusion in the plebiscite, by way of resolution or petition.” I’ve always felt that this matter should be subject to the will of the Filipino people as a whole.

Unfortunately for Mr. Marcos (and for the rest of the Philippines), it is uncertain whether the substitute bill will be acceptable to the Moro Islamic Liberation Front (MILF), which signed the Comprehensive Agreement on the Bangsamoro (CAB) with the Executive with the understanding (so the MILF says) that “it was negotiating with the totality of the Philippine government or ‘whole government’.” (see Dec. 29, 2014 letter of MILF chairman Al Haj Murad Ebrahim to the House ad hoc BBL committee).

And, thus why MILF lead spokesman Mohagher Q. Iqbal can audaciously declare (Cotabato, July 29, 2015) that “the MILF wants a BBL based on the version agreed bilaterally by the government and the MILF. We cannot accept a weak BBL.”

And this therefore’s the rub and something that this column has long been warning about: no matter how good Marcos’ work is, the Executive’s eccentrically agreeing to both the MILF’s categorization of the CAB as an international agreement and the MILF’s posturing as an entity possessed of international personality effectively negates whatever Congress or the Supreme Court may do.

Because it is in the nature of international agreements that they are not to be thwarted by local laws and institutions (including the Constitution) and the MILF can disregard SB 2894 by simply saying it does not comply with a binding international agreement that is the CAB (which they can now bandy around internationally as proof of the Philippine’s “perfidy”).

A solution would be is for the Congress to make a law terminating the CAB, which the president is duty bound to enforce (Article VII, Section 17).

Or the CAB can be classified as a treaty, resulting in its rejection by the Senate, and thus freeing up Marcos’ SB 2894 to have full sway.

Stop oppressing me with reason, logic, and facts!

my Trade Tripper column in this 07-08 August 2015 weekend issue of BusinessWorld:

This article essentially is a reiteration of something I wrote back in 2011, and was brought about by recent impressions gathered from social media, particularly now as the maneuverings for next year’s elections are gathering pace.

The puzzle: why many (definitely not all) of our people hate rational thought or any form of critical thinking. This hate is quite well disguised, what with the numerous publications and public discussions now available in the country.

I used the word “hate” (twice) deliberately. Say something with logical, reasoned, factual basis, with clarity and grammatical coherence, and one will get subjected to torrents of insults for doing so. What is allowable instead is “thinking” based on “feels” or one that can be captured by a hashtag.

The 2010 national elections had a very anti-intellectual bias. Academic credentials were either a) taken against the candidate or b) immediately disregarded due to some imaginary or unproven personal failing of the candidate.

This was quite interesting for so many reasons. In a world where information is created and travels in speeds previously unimaginable, to now consider learning as something unnecessary is incredible.

A sizable number of national leaders in other countries have world-class academic credentials. Obama, Cameron, Lee, and Merkel, just to name a few. Admittedly, not all are doing well in office but that is the point: considering the difficulties of the job then all the more reason to seek even better, more prepared, more learned individuals for public positions.

In our case, the twisted reasoning goes like this: since bar topnotcher Ferdinand E. Marcos or Georgetown-educated economist Gloria Macapagal-Arroyo were seen as unsatisfactory by a certain group of people, therefore we should seek leaders that have no academic distinction whatsoever. Which is downright stupid.

Accepting the argument that Mr. Marcos and Ms. Arroyo, with their experience and education, were unable to do the job well, then the proper (and sane) thinking would be to seek individuals with even better experience and training, plus other attributes necessary in a national leader: a clear vision of where he wants to take the country, competence (which includes the ability to select able people), and integrity (including having respect for our history and institutions). To say that no Filipino like that exists belittles the Filipino and is patently myopic.

But going beyond the elections, why the anti-intellectual bias?

Years ago I talked with a successful businessman who bragged about his refusing to read the classics (through time I’d discover his attitude to be shared by many Filipinos). Rousseau? Drucker? Aquinas? Who cares? For him, they’re irrelevant to his business. Instead, he expressed eagerness in getting advice from elder businessmen friends (“kasi practical daw siya” [because he considered himself as a practical person]).

Obviously, to learn from one’s elders is good.

But to disregard actual pieces of wisdom from the known giants of humanity is absurd, shortsighted, and idiotic. Undoubtedly, good advice is good advice, whether it be from the neighborhood barber or Pope Benedict XVI.

But to proudly disregard the insights of men who made themselves immortal through their stupendous achievements in favor of the opinions of people who just happened to possess wealth (which is but a mere pittance compared to the wealth of businessmen from our neighboring countries), out of companies that will no longer exist 30, 50 years from now, is deeply bizarre.

Perhaps the reason for the abhorrence against coherent disciplined thinking lies with our “intellectuals” themselves. A well-known professor would lecture constantly against oligarchs only to end up covering for their corruption. A columnist happily name-drops Rawls or Chomsky for no useful or coherent purpose. Then there’s this economist whose idea of public debate is to screech and scream against those who dissent from her views. Which is ridiculous.

Intellectuals are supposed to encourage others to think critically and objectively, to think calmly and methodically, to discuss politely, to like thinking (and learning), and to think for a purpose. Not paralyze people into inaction or scream loads of esoteric data in order to shut them up.

In the end, many of our people disregard rational thought (either from intellectuals or by politicians) because there had been those who assumed intellectual poses for purposes of ego tripping, treating serious discussions as theatrical performances for people’s entertainment. They serve no purpose other than as a diversion during coffee breaks or cocktails.

Intellectuals should exhort people to unify their actions with their thoughts, demand responsibility and accountability, all rooted in realistic and doable considerations. Above all, true intellectuals practice what they preach. Otherwise, they’re just encouraging the country to be basket cases like them.

Ultimately, there could be other, more profound reasons. After all, maturity and character demand introspection and openness to change. And thus Blaise Pascal’s words could be the key: “The embarrassment wherein he finds himself produces in him the most unjust and criminal passions imaginable, for he conceives a mortal hatred against that truth which blames him and convinces him of his faults.”

A doctor, a lawyer, and Death walk into a bar...

my Trade Tripper column in this 31 July-01 August 2015 weekend issue of BusinessWorld:

Got invited to Makati Medical Center’s bioethics forum last Tuesday.

I accepted quite eagerly as it provided an opportunity for me to dwell on topics that have been of interest to me for some time and that is not only the matter of euthanasia but also that of allowing death (with or without the patient’s consent).

The stated objectives of the forum were “to present a case of an AIDS (Acquired Immune Deficiency Syndrome) patient with a life-threatening complication; and to discuss the bioethical issues in the care of the AIDS patient who has refused further medical management.”

Needless to say, my obsession with natural law (and how it is woven into the fabric of our Constitutional system) served as the practical framework with which I approached the subject.

“Legal reasoning”, so says John Finnis, “is broadly speaking, practical reasoning. Practical reasoning moves from reasons for action to choices (and actions) guided by those reasons. A natural law theory is nothing other than a theory of good reasons for choice (and action).”

In this case, as was stated in the Protocols of the discussion handed to me, in the final stages of the patient’s life “additional sedative was given... in which the relatives were informed of possible side-effects.”

On the last day, the “patient became hypotensive but relatives deferred all further diagnostics, feeding, fluids and medications (except for the pain medications). The infectious disease service signed out of the case. He was then pronounced expired on the same day.”

The issues of “do not resuscitate” or “do not intubate” did not come into play here. Neither did “double effect”. Medication was ongoing and a determination was made to stop it, regardless of any discussion whether the treatment was ordinary or extraordinary.

The most apparent issue for me (as a working assumption) was the decision to defer “feeding, fluids” made by the relatives. Granted, the patient himself signaled a few days before he died that he apparently preferred “mercy killing.” But even that gives rise to further issues.

The protocols did ask whether an “HIV/AIDS patient with possible clinical depression was still competent to decide for himself.” But that is something for psychologists and medical doctors to determine. However, even granting that he was indeed competent, would such patient have the right in the first place to ask for “mercy killing”?

Because this was indeed a killing, albeit under the cover of “charity” or “good intentions”. But charity and good intentions for whom?

And to say that the relatives and doctors were merely following the wishes of the patient only leads us again to the question of whether the patient had the right to ask that he be killed.

Constitutionally, I would say no. And my grounds are based on the “common good” and “human dignity” clauses of the Constitution, as well as (perhaps) the “right to life” subject to due process and equal protection.

But the patient has his freedom, progressives ask. His individual autonomy. The offshoot of a liberal US Supreme Court that would invoke “emanations and penumbras” (as per Grisworld) or “the right to define the meaning of life, of one’s concept of existence, of meaning, of the universe, and of the mystery of human life” (from Casey). Both of these cases, incidentally, would find their “reasoning” in the recent lamentable Obergefell.

But individual autonomy has limits.

Nobody is allowed to sell himself into slavery or prostitution, or to sell body parts even for the most altruistic of reasons. And for all the talk of individual autonomy, the patient in this case still placed himself not within his exclusive powers but within the structure of the medical profession, as well as the framework of society itself (with all the concomitant norms, knowledge, and values).

In other words, for all his talk of individual autonomy, the patient still needed others, including society, to kill himself. And this desire to kill himself is pointedly regardless of society. And, frankly, regardless of the patient’s condition.

For one thing I realized is how utterly random the standards the medical profession put into place to give themselves the power to kill others: the definitions of extraordinary/ordinary treatment, of terminal conditions, of medical treatment from human necessity/hospitality.

And so while progressives struggle to deal with the quite indefensible position of autonomy, the nature and value of human dignity needs to be posited.

Our Constitution, drawing from the Enlightenment and the development of natural law and natural rights, speaks of protecting human life from the moment of conception. Outside that, Kant tells us of suicide’s unacceptability: for employing a choice that ultimately destroys the ability of choosing. Schopenhauer tells us that to harm oneself is ultimately harming all.

In the end, science has limits.

And try as they might to avoid it, people will always be faced with the need to make non-relativistic moral choices, knowing fully well that such choices have inevitable far-reaching consequences.

The Philippines' all or nothing bet on jurisdiction

my Trade Tripper column in this 24-25 July 2015 weekend issue of BusinessWorld:

Offhand, it can be said that we were brought to this situation by a series of serendipitous recent events. If it weren’t for a coastal vessel that got rammed through, if it weren’t for an International Court of Justice (ICJ) ruling defining and characterizing islands, if it weren’t for the personal peculiarities of two presidents, if it weren’t for China’s uncertain economic foundations, if it weren’t for ASEAN’s dysfunctional unity, and a whole lot more, we wouldn’t be in this conundrum we are in right now where a “victory” is a problem that necessitates careful planning.

Not that “victory” could be even easily defined. Ultimately, the Philippine case isn’t even about determining who owns the disputed territories but rather about definitions: what exactly is the nine-dash line, and what are the legal implications of certain islands that stand above the tides and whether the same could sustain habitation or not.

But for now, that is not even the main concern. It is jurisdiction. Because in international law, generally speaking (though I am unaware for the moment of exceptions, except perhaps for peace and security issues), no country can be made to submit to the jurisdiction of a tribunal without its consent. And the simple reason for this is that oft-mentioned but frequently misunderstood concept of “sovereignty.”

Both the Philippines and China, of course, are signatories to the 1984 United Nations Convention on the Law of the Sea (UNCLOS). And normally any dispute arising from the provisions of the UNCLOS would be referred to the International Tribunal for the Law of the Sea (ITLOS), which has jurisdiction over all disputes and all applications submitted to it in accordance with the convention. It also includes all matters specifically provided for in any other agreement that confers jurisdiction on the tribunal.

But as everybody knows, China has decided not to place itself under the jurisdiction of the UNCLOS dispute system when it made the following declaration upon joining the UNCLOS: “The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a)(b) and (c) of Article 298 of the Convention.”

China’s reference to Article 298 means that “it does not accept any one or more of the procedures provided for in Section 2 with respect to one or more of the following categories of disputes”: disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297; and disputes in respect of which the UN Security Council is exercising its authorized functions, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in the UNCLOS.

The Philippines, accordingly, is relying Section 2 of Part XV, Article 286 of the UNCLOS, which in substance provides for instances where States dispute the interpretation of a certain provision of the UNCLOS and they cannot come to an agreement on the matter. One State can then unilaterally submit the issue before a court or arbitral tribunal for determination. Now this has been posited as the “compulsory dispute settlement system” under the UNCLOS.

The phrase “compulsory dispute settlement procedures” is admittedly a misleading term that has confused a lot of people. Article 287 allows States four dispute settlement options. Two are arbitration procedures: under Annex VII, and “special” arbitration under Annex VIII. Two are adjudication procedures: before the ICJ, and before ITLOS.

This is generally thought to be understood as compulsory because it refers a dispute to arbitration as the mandatory mode of settling a dispute whenever the parties have not come to an agreement as to what mode they have selected (the choices are the ICJ, ITLOS or arbitration). This presupposes, however, that the parties already agreed to bring the matter to dispute settlement. Because despite the words “compulsory” or “mandatory,” the UNCLOS dispute procedure is still consensual in nature. As we know already, the Chinese have refused our invitation to bring the matter to dispute settlement under UNCLOS rules.

Anyway, the tribunal members having been selected, its first order of business was to designate the Permanent Court of Arbitration, and adopt its rules of procedure.

In the end, the fate of the Philippine claim is irrevocably now in the hands of a Ghanaian, a German, a Pole, a Frenchman, a Dutchman, and Americans.

And I really don’t think anybody in The Hague was remotely impressed by our 35-man (some reports say 60) delegation “show of force.”

The unbearable lightness of the competition law

was my Trade Tripper column in the 17-18 July 2015 weekend issue of BusinessWorld:

The passage of a competition law by Congress seemed to have set a celebratory mood in some people. After years of suffering insecurity that other countries have a competition law and we don’t, these people can now say we have one. The fact that the law’s assumption is that more competition can be forged only through greater regulation is an irony lost on many.

The thing is, friends of mine with more sense in their heads than others do appreciate having a competition law, but mainly for this reason: The need to break up monopolies. Or to be more specific, the monopolies of our local oligarchy. Which is all well and good if not for one thing: the present competition law passed by Congress practically ignores existing monopolies.

The new law simply does not directly address the monopolies of the ruling elite. It does seek to regulate possible new monopolies (hence, the power of the conceived Philippine Competition Commission or PCC to regulate and approve planned mergers and acquisitions). But existing monopolies are left alone. The most that can be held against them are possible penalties for “abuse of dominant position.” And even that has a lot of loopholes.

That is, aside from a faulty assumption: Predatory pricing works if the “predator” is willing (and able) to suffer deep financial losses and if the market itself is inundated with regulations that protect current players. Predatory pricing actually benefits consumers (which is the whole rationale, presumably, of the competition law).

Furthermore, considering the internationalized economy, in that businesses need to be efficient and strong not only against domestic but also foreign competition (i.e., companies that operate outside local shores), the competition law’s working paradigm is strangely confined to local market conditions.

So, effectively, the old monopolies are left to go on with their old smug ways while new, bigger, and potentially efficient competitors have to contend with satisfying the PCC. And this is where another problem lies.

I invite everyone to peruse BizNewsAsia’s Dec. 1, 2014 issue. There it reiterates a fact that every economist and policy maker knows: the Philippines has “24 million families and 100 million people.” And yet, political and economic power has been held only by a select few. With that, “since 1962, the country has deteriorated, from Asia’s richest to being the region’s economic laggard.”

I mention that because, indeed, another area we need to look at is the connection that competition policy has with corruption, and thus, relatedly, the need to constrain the ill effects of having both political and economic power held by a select number of families in the country, which is something that even this competition law seems to ignore.

Because, what is the point of having trade commissions, legal procedures, and set penalties if in the end the judged and the judge are from the same side of the fence? Competition laws work in the United States and Europe as the people who lead in business would not be the same people who comprise government, thus serving as a check upon each other. While undoubtedly relationships exist between the two groups in any country, that is a far cry from having the same families actually in control of both business and government.

In other words, what’s the use of appointing (for example) a competition law chairman or commissioner who most likely will belong to the same upper economic and social class of people -- from the same “elite” local schools, his (or his wife’s) social network, family, friends, neighborhood, and future political appointers or business clients -- that he will be regulating?

A recent Financial Times research publication, in fact, gives the following insights about the new competition law: “In light of these close ties between the country’s political and business elites, it is reasonable to question how effective the new antitrust legislation will be.” Thus, in the FT’s view, “there could be increased business risk arising from the creation of an entirely new layer of government regulation that may be susceptible to political influence” and that “there is also wide scope for subjective, rather than objective, implementation.”

Indeed. Note that the PCC’s powers do not extend to retroactive business deals. But the PCC does have the power to “forbear from applying the provisions” of the law (i.e., be relaxed or stricter, or just exempt anyone) according practically to its discretion. And if that were not enough, the measures of the PCC, being attached to the Office of the President, logically would go through the President first (even before any appeal can be made to the Court of Appeals), and remember that it is the President who appoints the PCC members.

So if people are asking if it’s possible that the new competition law is perhaps only capable of protecting the established local and foreign political and economic elite, while at the same time keeping upstart competitive local businesses out, well... yes.