Antonin Scalia: exemplary juror for PH

Cristina Montes and I on originalism and Justice Scalia's relevance for the Philippines.

Article can be read here.

Bloomberg interview on the Philippine budget

Here's my interview with Bloomberg regarding the Philippine budget, how the military is sorely underfunded, and how the government is encouraging a self-entitlement culture.

Interview can be viewed here.


God’s plants: SC and Bt ‘talong’ case

Cristina Montes' and me writing on the Supreme Court's contradictory legal positions:

"It's curious that the Court ignored the precautionary principle in the RH Law case when contraceptives’ threaten human life or health, as well as the environment."

Article can be read here.

Money can’t buy you happy

my Trade Tripper column in the 5-6 February 2016 issue of BusinessWorld:

In last week’s Republican primary debate, Marco Rubio made this interesting comment: “Why are we some of the most generous people in the world? Why do Americans contribute millions of dollars to charity? It is not because of the tax write off. It is because in this nation we are influenced by Judeo-Christian values that teach us to care for the less fortunate, to reach out to the needy, to love our neighbor.”

This very fundamental and should be obvious aspect of Senator Rubio’s statement, that the US was influenced by “Judeo-Christian” values, will be taken up in another article. Primarily because the Philippine constitutional system is quite similar to, and in fact was learned from, the US.

This column will take a break this week from constitutional or international trade issues, and take up instead more important matters: human happiness. And the effect wealth has on it. And no surprises: more money doesn’t make one truly happy.

The Philippines certainly has the lowest suicide rate in ASEAN but the number is unfortunately increasing.

In “Suicide in the Philippines: time trend analysis (1974-2005) and literature review” (Maria Theresa Redaniel, May Antonnette Lebanan-Dalida, and David Gunnella; 2011), the “incidence of suicide in males increased from 0.23 to 3.59 per 100,000 between 1984 and 2005. Similarly, rates rose from 0.12 to 1.09 per 100,000 in females.”

This must be read within the reality that the Filipino (according to the World Health Organization) is apparently the most depressed in Southeast Asia, with a reported 4.5 million Filipinos suffering from depression.

Contextually, this is interesting considering the improving economic situation (if you believe this government). And with social media, everybody can now be a celebrity in their own world, a wise political pundit, or an expert on gourmet restaurants.

And yet the sadness is there and one likely reason science tells us is self-indulgence.

Elizabeth Dunn and Michael Norton (“Don’t Indulge. Be Happy”, July 2012, New York Times) point out that: “We usually think of having more money as allowing us to buy more and more of the stuff we like for ourselves, from bigger houses to fancier cars to better wine to more finely pixilated televisions. But these typical spending tendencies -- buying more, and buying for ourselves -- are ineffective at turning money into happiness. A decade of research has demonstrated that if you insist on spending money on yourself, you should shift from buying stuff (TVs and cars) to experiences (trips and special evenings out). Our own recent research shows that in addition to buying more experiences, you’re better served in many cases by simply buying less -- and buying for others.”

Admittedly, those who say poverty is not exactly the situation that can bring out happiness are right.

But as Dunn and Norton clarifies: “People with a comfortable living standard are happier than people living in poverty. The catch is that additional income doesn’t buy us any additional happiness on a typical day once we reach that comfortable standard.”

Just accept that the new glamorous job you have, the new shiny gadget, that impressive looking car, that smart looking crowd in that sophisticated cocktail party, will just depress you, leave you feeling empty, in the long run. Because eventually, after the novelty wears off, it will all be ordinary, leaving you with yourself to contend with.

Some people’s reaction to this is to escape from the sadness by plunging into new activities, which in reality merely creates a manic circle that cannot stave off the inevitable.

“The effects of changes in people’s circumstances wear off as they get used to them -- a phenomenon economists call ‘hedonic adaptation,’” so says The Economist (reporting on the effect of wealth on people’s happiness; “Keeping up with the Karumes”; October 2015). Essentially, “We are never satisfied, since we quickly become accustomed to our own achievements.”

Admittedly, that lack of satisfaction could also spur more economic activity and the generation of further wealth. But that is beside the point because what’s the use of all that wealth if sadness becomes your constant overbearing companion?

We should encourage a society that devalues self-indulgence and immediate gratification. We must teach other the importance of thinking for the long term, of charity to others, and the strength and will to do one’s duty.

And with a Philippine demographic where 70% of the population is below 30 years of age, we really have to exert effort to ensure that the youth grow up with proper values and forego materialism, particularly the “if it feels good, do it” mentality of the 1960’s.

One good suggestion was made by Quartz’s Jenny Anderson (“Parents: let your kids fail. You’ll be doing them a favor”; October 2015) and that is to push children to stick “with tasks, even when they got frustrated,” as doing so will make them learn “focus, study, organize, and otherwise run their own lives.”

Heraclitus puts it best: character is destiny.

The day after the WTO’s tomorrow

my Trade Tripper column for the 29-30 January 2016 issue of BusinessWorld:

It’s fair to say that international trade, as well as its main institutional engine -- the World Trade Organization (WTO), is at a crossroad. Not necessarily as dramatic as existence or oblivion but quite significant all the same. The ensuing outcome ultimately would be felt more by the developing countries, particularly whether the benefits of trade could help them sooner or much much later.

Certainly, many in the developed world would be happy to see Doha dead and buried.

But some, albeit qualifiedly, still see the value of Doha’s ambition. EU commissioner for trade Cecilia Malmström, writing for Politico (“Doha may be dead. Long live free trade”, 21 January 2016):

“First, since the Doha Round was launched in 2001, the world has changed economically, politically, and as the theme of this year’s Davos conference makes clear, technologically. Second, many of the issues at the heart of the Doha talks, which aim at improved trade rules focused on development and growth, remain essential. Third, the structures of the DDA [Doha Development Agenda] have not allowed us to reach a comprehensive agreement on most of these issues. We have had all the time in the world but have not managed to do it. Fourth, the WTO is still vital. Its comparative advantage is the most favored nation principle, which means each member should treat all others the same. This allows the WTO to set rules that apply everywhere. And these rules [are] upheld by a strong dispute settlement system.”

Setting Ms. Malmström’s conditions aside, I still say developing countries, like the Philippines, would do well to keep pushing for Doha. It would allow smaller countries valuable time to gather the ability to integrate better, with less pain as possible, into the multilateral trading system. It would also be an exercise in trust that the WTO membership is not engaged in a zero-sum game.

And particularly for the Philippines, this much is true: we need to develop an overarching national vision on international trade. The same, by the way, goes for defense. Our country’s development should not be made to depend on external motivation, spurred by international agreements rather than self-initiated legislation, as our more experienced policy makers advocate. No. We must develop our own strategy, for the long haul, drawing from our unique culture, situation, and history, formulated and then implemented in our own, our Filipino way. Regardless of any grad school gibberish, foreign relations will always be an extension of a country’s domestic policy, of its beliefs and values as a people.

Thus, while this column will not profess enthusiasm for special and differential treatment (both for developing countries and least developed countries), nevertheless, the Philippines should insist that development be the underlying theme of the WTO, at least for the remainder of this decade: capacity building, transparency, and market access (including, of course, the elimination of domestic farm subsidies).

It is there where developed countries should exert their focus on, rather than antagonizing poorer countries with constant demands for stricter and binding rules on trade facilitation, competition policy, investment, intellectual property, e-commerce, and digital trade. These should wait. There should be enough policy space to instead encourage countries to unilaterally do what’s best for their specific circumstances, while solidifying any further development gain that could be achieved under Doha.

Only after Doha has been achieved should the WTO move on from it. And only then will it be proper to agree to a practical (rather than theoretical) acceptance of the fact that international trade is different now than a decade ago.

Aside from goods (and even services) no longer following the one country-selling/one country-buying model, more tellingly (as Jon Huntsman, “The Future of Global Trade”; Wall Street Journal April 2015, relates):

“Trade flows will reflect the realities of global power as well as demographics. The Pacific will no longer be the dominant trade hub. Instead, the focus will shift to the Indian Ocean region, which upward of eight billion people -- mainly in China, India, and Africa -- will call home. The US may not be in a position to influence trade the way it did. For the past 200 years, Britain, after the Industrial Revolution, and the US after the two world wars, fought for an open trading system to promote growth. None of the emerging countries have thus far shown that same commitment, even though they -- particularly China -- are increasingly setting the pace in world trade.”

In the meantime, studies should be made -- with a view to minimizing the trade distorting effects -- of domestic regulations that remain to operate beyond the pale of international trade agreements: burdensome language issues, inconsistent rules between one local government unit to another, and local corruption.

Finally, and this with the Philippines specifically in mind, the WTO should learn to assist countries get rid of smuggling. This has politically (illogical, I know) resulted in local citizenry’s distrust of international trade, as well as rendering inutile trade remedies such as anti-dumping or safeguards.

The People have spoken: Read the Constitution

my Trade Tripper column in the 22-23 January 2016 issue of BusinessWorld:

Perhaps the error starts way back in law school. There, the unsuspecting law student becomes brainwashed with the notion of the “living constitution,” the idea that the words of the fundamental law can “evolve,” it not being “static,” and is supposed to “keep up with the times.” And this had always been partnered with the idea that the venerable Supreme Court is the final defender of the Constitution. If only such were true. And thankfully, they’re not.

But because of this myth (yes, it’s a myth) of the living constitution (actually a legal theory propagated by liberal law professors in the US), we accepted the quite undemocratic idea that the Constitution (or any law) for that matter is “what the Supreme Court says it to be.”

Which brings us -- amidst all the pressing problems facing the country -- to today’s divisive distractions: Who qualifies to run for president (despite the fact that the qualifications are expressed in declarative sentences)? Can the country have another autonomous region (when the Constitution expressly enumerated them already)? Who can get married? Can fetuses be aborted? And on and on.

The answers to the foregoing, which are commonsensically clear, are being muddled to advance a political agenda. And you can bet that the one with the confused argument will say that the Constitution should be read “flexibly” and “in keeping with the demands of justice,” of which “justice” is defined to be what would agree with their position.

Doubtless, jurists can wax poetic in saying the Constitution should “grow,” for it is a “living organism,” it must be “broad” and “flexible,” a “dynamic document,” as the drafters could not possibly anticipate the future.

All that sounds plausible. After all, if the Constitution is not “living” then it has to be dead. But on closer analysis, the idea is misleading.

To say a constitution’s words can just evolve presents huge difficulties: Who is to say it evolved? What would be the proofs required? To what extent it evolved? When did it evolve?

Note that whether it be the framers of the 1935, 1973, or 1987 Constitutions, they all took months of hard work carefully choosing the words (and their arrangement) of the Constitution. Why bother if the Constitution would just evolve anyway? They could have just written “ketchup” and say the word will evolve. And why bother drafting a new constitution? Just get the old one and say it evolved.

If indeed the Constitution becomes outmoded or needs to be kept up with the times, then that’s what the Constitution’s amendatory provisions are for. Some will complain that to change the Constitution is too difficult. And yet, it’s so difficult that the Americans amended theirs 27 times.

The inherent problem with the “living constitution” theory is that it is an excuse (usually made by leftist progressives) to deviously circumvent the will of the People, pushing their ideological agenda through the academe and the courts what they can’t successfully do through democratic elections.

In the end, after all, what is the Constitution except the written will of the People? It is the People that wrote the Constitution. They are the authors. Not government officials or academics, no matter how powerful or learned.

And since the People authored the Constitution, they are the only ones with the power to change it. Certainly, it can’t be altered by unelected officials. That’s grossly undemocratic. But even elected ones can’t as well. Congress’ authority is to make laws that comply with the Constitution. The president’s job is to apply the constitutionally compliant law.

Leading us back to the Supreme Court, whose mandate is simply to look at a law’s cons-titutionality. And most of the Constitution’s provisions are pretty clear-cut. Granted, there are the “majestic generalities,” as Holmes would put it. Also the unfortunate “grave abuse of discretion” clause, which allows an unelected judiciary to substitute its preferences over that of the people’s elected legislature.

Nevertheless, the Supreme Court’s function remains merely to uphold the Constitution, in accordance with the People’s intent, beliefs, and values at the time they authored it. Not the justice’s personal views or wisdom. And surely such intent, beliefs, and values, with all the media, official records and technology available, can be gleamed from a document (the 1987 Constitution) made less than 30 years ago.

As to being “the defender of the Constitution”? Nowhere in the Constitution is that title given to the Supreme Court.

Like any man-made institution, any supreme court will be fallible. Roe vs Wade, Dred Scott, and our very own Martial Law cases attest to that. No. The final and true defender of the Constitution is its author: the People.

Finally, shallow politicians make much of the argument: “let the people be heard.” Well, the People created a system where it is heard: through the Constitution and every time there is an election.

Outside of that is just the noise of the mob.