is my Trade Tripper column in this weekend issue of BusinessWorld:
Out of curiosity or concern, the matter of ASEAN integration in 2015 is a common topic of discussion among many businessmen and the academe. Interestingly enough, one sees people getting all worked up or bracing themselves for it without actually understanding what the thing is about. The truth about ASEAN integration, however, is more mundane than most realize.
ASEAN, while intriguing and looks good on paper, particularly in the area of trade and policy, has in reality been quite disappointing. As Joshua Kurlantzick (ASEAN’s Future and Asian Integration, November 2012) puts it: "ASEAN lags far behind its full potential. Most Western leaders and even many of Southeast Asia’s own top officials do not consider the organization capable of handling any serious economic or security challenges, including the current dispute in the South China Sea. In previous times of severe economic downturn, ASEAN members have looked to lenders outside the group for assistance."
This leads Mr. Kurlantzick to conclude: "with its current limitations in working style, staffing, and mandate, as well as the enormous political and economic disparities among its members, ASEAN is unlikely to move beyond its current status." He then goes on to enumerate seven major challenges faced by ASEAN: evading dominance by regional powers, integrating a revived and powerful Indonesia, consensus decision making, integrating new members, balancing economic disparities, strengthening the Secretariat, and becoming the center of Asian institutions.
Mr. Kurlantzick does recommend a "common ASEAN vision for future East Asian trade and economic integration." But, those looking for an European Community pattern are mistaken. As pointed out by Coraline Goron (Building an ASEAN Community by 2015, July 2011): "The ASEAN Economic Blueprint presents two main objectives: to transform ASEAN into a single market and production base and make it a competitive economic region. One should be aware, however, that despite the bold language, the ideas put forward in this document remain significantly lower than the economic integration in the EU. Notably, no custom union and no single currency are envisaged."
The truth is many of the provisions of the ASEAN integration plans are already in place: from the lowered tariffs, to increased free trade agreement (FTA) activity, to the smoothening of customs procedures. The question really is not the dangers that ASEAN integration can bring (if there are any) but rather if the Philippines itself is ready to take advantage of the same or be left again in the dust.
Your Trade Tripper has continuously pointed to one study to determine the readiness of the Philippines and that is with regard to our utilization rate of the AFTA, a trade arrangement in place since 1992. In a 2010 working paper released by the ADBI ("FTAs and Philippine Business: Evidence from Transport, Food, and Electronics Firms"), it was found that only around 20% of the companies surveyed here in the Philippines have taken advantage of the AFTA preferential rates.
This low utilization rate has never been resolved. As discussed by the ADB working paper, a lot of Philippine firms are still baffled by the mechanics of FTAs. Other reasons have to do with "delays and administrative costs and the use of export incentives other than FTA preferences."
To put it in even blunter terms, what is the point of opened markets if we don’t have the capacity to satisfy those markets? And what is the point of opening up the country for investments if the environment does not make it attractive for investors?
Looking at 2012 export numbers, for example, we shipped a volume that is less than half of Vietnam’s, less than a fourth of Malaysia’s, and less than an eight’s of Hong Kong’s. For FDI’s, the Philippines is celebrating its 3.86 (in billions US$) showing for 2013, even though the same is spectacularly short of Malaysia’s (11.7), Indonesia’s (22), Thailand’s (13), and Singapore’s (56).
We are nearly last in terms of competitiveness and ease of doing business compared to other ASEAN countries; our power, transport, productivity, and infrastructure are nothing to brag about; and the rule of law and protection of property are a concern in most major studies. Then there is traffic, with JICA (also cited by my fellow columnist Benjamin Diokno) reporting that Metro Manila traffic in 2012 cost the country an amount equal to 7% of the GDP.
Finally, what benefit could the opening up of borders be when our borders have consistently been punched through with impunity by smuggling? BizNewsAsia (March 2014) reported that the country may have suffered a possible revenue loss (in 2002-2007) of P127.075 billion due to smuggling. Bobi Tiglao (writing for another paper) estimates smuggling in 2010-2012 to have reached $19.6 billion per year.
The point is that there’s nothing to be worried about when it comes to ASEAN integration. The real issue is our readiness to take advantage of it. Which is ironic considering that the idea to accelerate integration from 2020 to 2015 came about during the ASEAN 2007 meeting in Cebu.
16.3.14
9.3.14
The internet as human right
is my Trade Tripper column in this weekend issue of BusinessWorld:
Anybody working in an office, studying in school, or corresponding or reading from home -- in short: everybody -- would readily accept that the internet is hooked up to our lives. To a perceptibly uncomfortable degree. Lack of water? Late newspapers? Not a problem. But no or slow internet access? People are immediately up in arms. However, to what extent can citizens indeed demand internet access? And what is government’s responsibility in this regard?
These questions came up with OpenSignal’s (http://opensignal.com/) recent survey showing the respective countries’ broadband speed. Apparently, six million users volunteered data from all over the world, with the result that the Philippines came "in the slowest of our qualifying countries." The Philippines also came last with regard to time and speed on LTE (Long Term Evolution).
Note that the Philippine Constitution has certain provisions that could be said to relate to internet access. Thus, the Constitution provides that the State "shall give priority to education, science and technology"; that "no law shall be passed abridging the freedom of speech, of expression, or of the press"; and that "the right of the people to information on matters of public concern shall be recognized."
That access to the internet has indeed come to the level of a "right" was raised in a UN Report (by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, May 16, 2011): "While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur considers cutting off users from internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights."
The Report, therefore, called on "all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws."
There is a difference, though, between not blocking the internet and actually providing access to the internet. If the latter, then an argument could indeed be made that the slow broadband speeds and such other lack of access for Filipinos could be a violation of human rights.
This is Nilay Patel’s point (The Verge, "The Internet is Fucked," Feb. 25): "Over the course of the past 20 years, the idea of networking all the world’s computers has gone from a research science pipe dream to a necessary condition of economic and social development, from government and university labs to kitchen tables and city streets. We are all travelers now, desperate souls searching for a signal to connect us all."
In the end, Mr. Patel declares that the "the internet is a utility" and that "internet access isn’t a luxury or a choice if you live and participate in the modern economy, it’s a requirement."
Neil Eustaquio, a 4th year student of the Ateneo Law School, agrees: "The internet is a public good fundamental for the full realization of human rights."
I had the privilege of helping Mr. Eustaquio (who also holds a Master’s Degree in Management from the University of Asia and the Pacific) in his thesis "Right To Intenet As International Human Right." Quite frankly, I now find his conclusions (I previously took the conservative view, i.e., that the right to the internet is limited to merely not blocking access) astute and prescient.
As Mr. Eustaquio wrote: "The Right to Internet is a human right. This statement finds its basis in the premise that the Right to Internet: (1) emanates from the human right to freedom of opinion and expression, the human right to information, the human right to peaceful assembly, the human right to development, the human right to participate in cultural life, and the human right to education; (2) is necessary in today’s world to respect, protect, and fulfill the said human rights; and (3) has been implicitly and explicitly recognized as a human right in various international documents."
The right to the internet is not absolute. As Mr. Eustaquio pointed out: "Some valid limitations to the Right to Internet on the basis of international criminal law include limitations on speech that constitute: (a) direct and public incitement to genocide; (b) incitement to discrimination, hostility, and violence; (c) incitement to terrorism; (d) and child pornography. Other grounds for limitations include: (a) cybersecurity; (b) computer-related fraud and forgery; and (c) copyright and related rights."
Philosophers may probably have something to say about the logic of making a thing a "right" simply because it became a necessity. On my part, I’d like to paraphrase John Henry Newman: we have rights because we have duties.
Anybody working in an office, studying in school, or corresponding or reading from home -- in short: everybody -- would readily accept that the internet is hooked up to our lives. To a perceptibly uncomfortable degree. Lack of water? Late newspapers? Not a problem. But no or slow internet access? People are immediately up in arms. However, to what extent can citizens indeed demand internet access? And what is government’s responsibility in this regard?
These questions came up with OpenSignal’s (http://opensignal.com/) recent survey showing the respective countries’ broadband speed. Apparently, six million users volunteered data from all over the world, with the result that the Philippines came "in the slowest of our qualifying countries." The Philippines also came last with regard to time and speed on LTE (Long Term Evolution).
Note that the Philippine Constitution has certain provisions that could be said to relate to internet access. Thus, the Constitution provides that the State "shall give priority to education, science and technology"; that "no law shall be passed abridging the freedom of speech, of expression, or of the press"; and that "the right of the people to information on matters of public concern shall be recognized."
That access to the internet has indeed come to the level of a "right" was raised in a UN Report (by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, May 16, 2011): "While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur considers cutting off users from internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights."
The Report, therefore, called on "all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws."
There is a difference, though, between not blocking the internet and actually providing access to the internet. If the latter, then an argument could indeed be made that the slow broadband speeds and such other lack of access for Filipinos could be a violation of human rights.
This is Nilay Patel’s point (The Verge, "The Internet is Fucked," Feb. 25): "Over the course of the past 20 years, the idea of networking all the world’s computers has gone from a research science pipe dream to a necessary condition of economic and social development, from government and university labs to kitchen tables and city streets. We are all travelers now, desperate souls searching for a signal to connect us all."
In the end, Mr. Patel declares that the "the internet is a utility" and that "internet access isn’t a luxury or a choice if you live and participate in the modern economy, it’s a requirement."
Neil Eustaquio, a 4th year student of the Ateneo Law School, agrees: "The internet is a public good fundamental for the full realization of human rights."
I had the privilege of helping Mr. Eustaquio (who also holds a Master’s Degree in Management from the University of Asia and the Pacific) in his thesis "Right To Intenet As International Human Right." Quite frankly, I now find his conclusions (I previously took the conservative view, i.e., that the right to the internet is limited to merely not blocking access) astute and prescient.
As Mr. Eustaquio wrote: "The Right to Internet is a human right. This statement finds its basis in the premise that the Right to Internet: (1) emanates from the human right to freedom of opinion and expression, the human right to information, the human right to peaceful assembly, the human right to development, the human right to participate in cultural life, and the human right to education; (2) is necessary in today’s world to respect, protect, and fulfill the said human rights; and (3) has been implicitly and explicitly recognized as a human right in various international documents."
The right to the internet is not absolute. As Mr. Eustaquio pointed out: "Some valid limitations to the Right to Internet on the basis of international criminal law include limitations on speech that constitute: (a) direct and public incitement to genocide; (b) incitement to discrimination, hostility, and violence; (c) incitement to terrorism; (d) and child pornography. Other grounds for limitations include: (a) cybersecurity; (b) computer-related fraud and forgery; and (c) copyright and related rights."
Philosophers may probably have something to say about the logic of making a thing a "right" simply because it became a necessity. On my part, I’d like to paraphrase John Henry Newman: we have rights because we have duties.
2.3.14
Philippine values and trade
my Trade Tripper column in the recent weekend issue of BusinessWorld:
The formulation of a proper (and publicly knowable) trade policy remains a vital concern. It’s obviously a significant tool for economic development for the Philippines. However, properly considered, it also is a valuable instrument for advancing foreign policy. And that foreign policy, also properly considered, should include the values that the Philippines allegedly professes.
US Trade Representative Michael Froman seemingly expressed the same thoughts in his recent speech at the Center for American Progress. In "A Values-Driven Trade Policy," Mr. Froman stated that the US will "focus on trade policy’s role in furthering three of our core values: Standing up for workers, protecting the environment, and promoting widely shared innovation."
One way of doing that is through its present trade negotiations. Regarding workers’ rights for example, in the negotiations relating to the "TPP (Trans-Pacific Partnership) we are seeking to include disciplines requiring adherence to fundamental labor rights, including the right to organize and collectively bargain, and protections from child and forced labor and employment discrimination."
On the environment: "Our values also tell us that the future global economy should be more sustainable than it is today." "Here, too, trade has an important role to play and, through TPP and T-TIP (Transatlantic Trade and Investment Partnership), as well as the WTO (World Trade Organization), the United States has taken the lead in advancing this agenda.
"We are working to set the world’s highest standards in the environment chapters of our trade agreements."
And, most tellingly: "our position as the world’s oldest democracy and most innovative economy, calls for us to cultivate global norms rooted in promoting commerce, scientific progress and the freedom of expression -- norms reflected in our Constitution that encourage innovation and creation."
That, I believe, is the correct view to trade. Anyone who supports the idea of free and fair markets knows the inherently democratic spirit underlying market transactions: one essentially votes through ones wallet.
That is why for an enlightened citizenry, assuming the choices are there in terms of quality and price, one will refuse to buy products that involved labor violations, animal cruelty, exploitation of women, or endangers the environment.
And yet, by reasons of pure pragmatism or greed, what apparently is the right thing to do at the citizen level is ignored at the State level.
In which case, what does it say of us then to declare that our goal as a people is to "build a just and humane society, and establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace" when that same society and government turns away from those ideals in dealing with other countries for commercial and economic reasons (i.e., money)?
To cut it short: what does that say of us as a country when we forget the democratic rights we say we stand for simply because we want China’s money?
Yes. China is one of our three top export and import partners. And, yes, the volume of trade is huge (with the balance of trade usually in favor of the Philippines). And this does not count the direct investment we get or could get from China.
But in doing so we turn a blind eye to the fact that China remains (at least according to Amnesty International and Human Rights Watch) a continued violator of fundamental international human rights, particularly of speech and religion. It continues to disregard international norms relating to worker rights (Apple, for instance, had to fire one of its Chinese suppliers in January 2013 after finding it violated rules on child laborers). It has persistently continued to impose population planning policies that violate women’s rights.
Oh. And China insists in taking parts of our territory away from us.
Now, I’m not saying we stop trading with China. What I’m saying is that our trade partnership with China (as well as other countries, like Myanmar) could be utilized to lead to a more meaningful relationship based on mutual respect. And that respect should include China giving due consideration for our values and interests, which are substantially shared by the rest of the world.
As Samuel Gregg wrote (in Constitutions, Culture, and the Economy), a country’s constitution expresses "fundamental principles that a society considers valuable enough to merit special protection. In this sense, constitutions (like all laws) perform a pedagogical function."
So should our trade agreements (which, technically, are "laws") embody the fundamental principles and values of our people.
Along with discussions on the veracity of our
economic numbers and of the reality of rising unemployment, the matter
of trade policy is equally important. Unfortunately, international trade
has lost the allure it had almost a decade ago and any conversation on
the matter admittedly -- even for your Trade Tripper -- has become quite
boring. But it need not be so.
The formulation of a proper (and publicly knowable) trade policy remains a vital concern. It’s obviously a significant tool for economic development for the Philippines. However, properly considered, it also is a valuable instrument for advancing foreign policy. And that foreign policy, also properly considered, should include the values that the Philippines allegedly professes.
US Trade Representative Michael Froman seemingly expressed the same thoughts in his recent speech at the Center for American Progress. In "A Values-Driven Trade Policy," Mr. Froman stated that the US will "focus on trade policy’s role in furthering three of our core values: Standing up for workers, protecting the environment, and promoting widely shared innovation."
One way of doing that is through its present trade negotiations. Regarding workers’ rights for example, in the negotiations relating to the "TPP (Trans-Pacific Partnership) we are seeking to include disciplines requiring adherence to fundamental labor rights, including the right to organize and collectively bargain, and protections from child and forced labor and employment discrimination."
On the environment: "Our values also tell us that the future global economy should be more sustainable than it is today." "Here, too, trade has an important role to play and, through TPP and T-TIP (Transatlantic Trade and Investment Partnership), as well as the WTO (World Trade Organization), the United States has taken the lead in advancing this agenda.
"We are working to set the world’s highest standards in the environment chapters of our trade agreements."
And, most tellingly: "our position as the world’s oldest democracy and most innovative economy, calls for us to cultivate global norms rooted in promoting commerce, scientific progress and the freedom of expression -- norms reflected in our Constitution that encourage innovation and creation."
That, I believe, is the correct view to trade. Anyone who supports the idea of free and fair markets knows the inherently democratic spirit underlying market transactions: one essentially votes through ones wallet.
That is why for an enlightened citizenry, assuming the choices are there in terms of quality and price, one will refuse to buy products that involved labor violations, animal cruelty, exploitation of women, or endangers the environment.
And yet, by reasons of pure pragmatism or greed, what apparently is the right thing to do at the citizen level is ignored at the State level.
In which case, what does it say of us then to declare that our goal as a people is to "build a just and humane society, and establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace" when that same society and government turns away from those ideals in dealing with other countries for commercial and economic reasons (i.e., money)?
To cut it short: what does that say of us as a country when we forget the democratic rights we say we stand for simply because we want China’s money?
Yes. China is one of our three top export and import partners. And, yes, the volume of trade is huge (with the balance of trade usually in favor of the Philippines). And this does not count the direct investment we get or could get from China.
But in doing so we turn a blind eye to the fact that China remains (at least according to Amnesty International and Human Rights Watch) a continued violator of fundamental international human rights, particularly of speech and religion. It continues to disregard international norms relating to worker rights (Apple, for instance, had to fire one of its Chinese suppliers in January 2013 after finding it violated rules on child laborers). It has persistently continued to impose population planning policies that violate women’s rights.
Oh. And China insists in taking parts of our territory away from us.
Now, I’m not saying we stop trading with China. What I’m saying is that our trade partnership with China (as well as other countries, like Myanmar) could be utilized to lead to a more meaningful relationship based on mutual respect. And that respect should include China giving due consideration for our values and interests, which are substantially shared by the rest of the world.
As Samuel Gregg wrote (in Constitutions, Culture, and the Economy), a country’s constitution expresses "fundamental principles that a society considers valuable enough to merit special protection. In this sense, constitutions (like all laws) perform a pedagogical function."
So should our trade agreements (which, technically, are "laws") embody the fundamental principles and values of our people.
22.2.14
Entitled unemployment
is my Trade Tripper column in this weekend issue of BusinessWorld:
There are now 12.1 million unemployed
Filipinos. Malacañang apparently thinks it an appalling development. So
much so that it immediately called for a press conference to announce
that President Aquino wants his cabinet members to be “pro-active” in
implementing “strategies with spatial and sectoral dimensions.” The
problem is that it’s this government’s policies that “inspire”
unemployment.
First: the myths. It is
misleading to talk about “jobless growth.” As economist Nonoy Oplas
pointed out, “The term ‘jobless growth’ is wrong. Growth means more or
additional output from (a) more workers and entrepreneurs employed, or
(b) the same number of workers and entrepreneurs producing more from the
same input (ie, higher productivity). If (b) happens, then higher
productivity people will create new jobs elsewhere.”
Finally,
to blame unemployment on the recent natural disasters, including
Yolanda, is to be disingenuous. The economic conditions for joblessness
were already in place before that. Even Socioeconomic Planning Secretary
Arsenio Balisacan would himself say: “We are on track with respect to
our economic targets, but we lag with respect to our social outcomes.”
Which
is something many economists and policy observers already noted about
the Philippines’ recent economic performance: the skewed social policies
effectively render whatever economic improvement we have to benefit
only a few elite families. To the detriment of the greater part of our
population, which fall under the poverty and hunger levels.
The
27.5% joblessness rate is tragic. It represents, in just one three
month period, an additional 2.5 million unemployed Filipinos. It is
wrong, however, as the left are wont to do, to blame trade
liberalization and globalization. These proven economic drivers, which
take place at the point of the border, have done their bit and these can
be seen in the improved economic numbers. It’s the socialistic policies
adopted by this government that make the poor remain poor.
Simply put: not only is this government lousy at creating jobs, it also encourages people not to work.
The
disincentives to work are plenty: why work if you’ve been told by
academics and policy makers that you’re entitled to receive money in
exchange for nothing via the Conditional Cash Transfer? Why work hard if
you have the Kasambahay Law that entitles you to a professional’s
benefits but without the need to act professionally?
Oh, and by the way, because you’re poor you’re excused from following the law.
These
policies, borrowing the words of New Jersey Governor Chris Christie,
essentially tell people: “do not bother about wanting to work hard and
acting with honor and integrity and ingenuity because we’ll take care of
you.”
Olympic
skater Michael Christian Martinez would have had greater chances of
getting government support if he had sat on his butt all day, stayed
content with mediocrity, and whined. Instead he unforgivably took
initiative, worked hard, and showed talent.
This
column has warned repeatedly about the dangers of an entitlement
culture. Obviously, we do need social legislation to help alleviate our
poor. But while you have Singapore allocating a huge portion of its
budget on social protection, nevertheless, it will not tolerate
squatting or any sort of criminality, with everyone encouraged
(“compelled?”) to put in their fair share for Singapore.
Contrast
that with the Philippines, where the extended family, immediate
community, employers and the government are all expected to provide
anything on demand but without any concomitant responsibility required
of the citizen. “You don’t like the way we do our job? Fine, we’ll
abandon it.” And screw duty or the rule of law.
To
compound all that, to those Filipinos who reject a paternalistic,
entitlement culture for the country, the government seems intent on
proving that any smart and hard work they do are for naught.
To
start, for a country of recognized talented people, we have among the
lowest paid workers. In a 2012 International Labor Organization survey
on employee income, out of 72 countries, the Philippines ranked 70th.
That we lag behind Korea, Singapore, Hong Kong, Malaysia is old news.
But then we also lag behind Bosnia, Jamaica, Serbia, Botswana,
Mauritius, Kazakhstan, Syria, Mongolia, and India.
The
foregoing is within the context of the Filipino working among the
longest hours. And those work hours do not include the two- to four-hour
commute to and from work that many Filipinos go through every day,
commuting hours that will get longer (according to the government
itself) by 55% due to 12 simultaneous infrastructure projects starting
this month, all undertaken without any accompanying detailed vehicular,
traffic rerouting, revised work hour, or public transportation plans.
For
Filipinos who want to go into business, there’s congested traffic there
too built by the government in the form of endless red tape (amongst
the most tedious in the world). Add to that high energy, transportation,
and raw material costs.
So
much for the left’s and Karl Marx’s ideal society where workers can
“hunt in the morning, fish in the afternoon, rear cattle in the evening,
criticize after dinner.”
16.2.14
The common good
was my Trade Tripper column in the recent weekend issue of BusinessWorld:
One legal and political concept that has been ignored in today’s public debates relating to law and policy is that of the "common good." The disregard could be due to simple ignorance or to deliberate ideological calculation. But whatever the reason, the failure to remember what the common good is has led undoubtedly to a discernable state of confusion in public debates.
It really doesn’t matter if one is "progressive," liberal, or conservative. Those are political labels fit for another discussion. What is important at this point is to determine the difference between truth or reality from those which are essentially manufactured to achieve a political end.
Many academics now seem to want to make us believe that the proper direction of the country is their version of a secularized, pluralistic society moving along Rawlsian lines. What this in essence means is that they seek to construct policies that utilize the technique of the "veil of ignorance," whereby the "justness" of a policy is seen by ignoring one’s position, talent, properties, interests, or preferences within society.
Now the merits of John Rawl’s ideas on political thought is not the issue here (although Alasdair MacIntyre may have something to say about it). The point is that our society was simply not constructed along Rawlsian thinking. To impose such, as some legal or political thought academics are advocating), causes a disconnect between what our society is and how it’s supposed to react, and at the same time removing from the people their sovereign function of designing what our society is to be.
The identity of what our society is can be seen in our Constitution. And our society (and its constitution) were both created not within a vacuum or through a veil of ignorance, but with a peculiar context, circumstance, and history.
It’s a given that our Constitution borrows heavily from the US Constitution. Clearly, the people who wrote our Constitution knew the context in which they were writing it (particularly coming off the Martial Law experience, as an example) but also the context in which the US Constitution was written.
One particular context that must be considered is the background of the US Constitutional Convention delegates: of the 55, around 29 served in the military, a substantial majority had experience in constitutional law drafting (at least at the federal State level), in fact a majority of them were lawyers (with the rest being landholding farmers, businessmen, bankers, and doctors).
Significantly, almost all of the delegates would also sign the other fundamental documents of the US: the Articles of Confederation and -- more importantly -- the Declaration of Independence. The consistency of thought in their founding political documents is therefore there.
Another context is the religious and philosophical beliefs of the delegates: most were Christians (only two were Catholics, the rest were Protestants). At the very least, all believed in a deity or were theists of some sort.
Also, the delegates were certainly quite aware of Aristotelian thought, and quite definitely the ideas of the Enlightenment thinkers such as Locke and Rousseau. That would mean then that the US Constitution was framed with the idea of man’s telos or purpose, of self-evident natural rights, and of the common good (or "general will").
Interestingly, the US Constitution’s preamble contained the phrase "general welfare" instead of the "common good." But again, context: the two were seen as interchangeable, at least in the eyes of the delegates. "General welfare" would also appear in prior Philippine constitutions. However, within the context of the present Philippine Constitution, the use of the phrase "common good" was done deliberately, as Fr. Joaquin Bernas, SJ, attests:
"An attempt to restore the phrase ‘general welfare’ in place of the Committee’s phrase ‘common good’ was not accepted. The change from ‘general welfare’ to ‘common good’ was intended to project the idea of a social order that enables every citizen to attain his or her fullest development economically, politically, culturally and spiritually. The rejection of the phrase ‘general welfare’ was based on the apprehension that the phrase could be interpreted as meaning the ‘greatest good for the greatest number’ even if what the greater number wants does violence to human dignity, as for instance when the greater majority might want the extermination of those who are considered as belonging to an inferior race. It was thought that the phrase ‘common good’ would guarantee that mob rule would not prevail and that the majority would not persecute the minority." (see Fr. Bernas; The 1987 Constitution of the Republic of the Philippines, 2009)
The preamble lays down the purpose of the Constitution. It also, as Fr. Bernas points out, is a "manifestation of the sovereign will of the Filipino people." Our laws, therefore, must always be made with the "common good" (as defined and understood within its context and history) in mind. To do otherwise could result in a law made with "grave abuse of discretion."
One legal and political concept that has been ignored in today’s public debates relating to law and policy is that of the "common good." The disregard could be due to simple ignorance or to deliberate ideological calculation. But whatever the reason, the failure to remember what the common good is has led undoubtedly to a discernable state of confusion in public debates.
It really doesn’t matter if one is "progressive," liberal, or conservative. Those are political labels fit for another discussion. What is important at this point is to determine the difference between truth or reality from those which are essentially manufactured to achieve a political end.
Many academics now seem to want to make us believe that the proper direction of the country is their version of a secularized, pluralistic society moving along Rawlsian lines. What this in essence means is that they seek to construct policies that utilize the technique of the "veil of ignorance," whereby the "justness" of a policy is seen by ignoring one’s position, talent, properties, interests, or preferences within society.
Now the merits of John Rawl’s ideas on political thought is not the issue here (although Alasdair MacIntyre may have something to say about it). The point is that our society was simply not constructed along Rawlsian thinking. To impose such, as some legal or political thought academics are advocating), causes a disconnect between what our society is and how it’s supposed to react, and at the same time removing from the people their sovereign function of designing what our society is to be.
The identity of what our society is can be seen in our Constitution. And our society (and its constitution) were both created not within a vacuum or through a veil of ignorance, but with a peculiar context, circumstance, and history.
It’s a given that our Constitution borrows heavily from the US Constitution. Clearly, the people who wrote our Constitution knew the context in which they were writing it (particularly coming off the Martial Law experience, as an example) but also the context in which the US Constitution was written.
One particular context that must be considered is the background of the US Constitutional Convention delegates: of the 55, around 29 served in the military, a substantial majority had experience in constitutional law drafting (at least at the federal State level), in fact a majority of them were lawyers (with the rest being landholding farmers, businessmen, bankers, and doctors).
Significantly, almost all of the delegates would also sign the other fundamental documents of the US: the Articles of Confederation and -- more importantly -- the Declaration of Independence. The consistency of thought in their founding political documents is therefore there.
Another context is the religious and philosophical beliefs of the delegates: most were Christians (only two were Catholics, the rest were Protestants). At the very least, all believed in a deity or were theists of some sort.
Also, the delegates were certainly quite aware of Aristotelian thought, and quite definitely the ideas of the Enlightenment thinkers such as Locke and Rousseau. That would mean then that the US Constitution was framed with the idea of man’s telos or purpose, of self-evident natural rights, and of the common good (or "general will").
Interestingly, the US Constitution’s preamble contained the phrase "general welfare" instead of the "common good." But again, context: the two were seen as interchangeable, at least in the eyes of the delegates. "General welfare" would also appear in prior Philippine constitutions. However, within the context of the present Philippine Constitution, the use of the phrase "common good" was done deliberately, as Fr. Joaquin Bernas, SJ, attests:
"An attempt to restore the phrase ‘general welfare’ in place of the Committee’s phrase ‘common good’ was not accepted. The change from ‘general welfare’ to ‘common good’ was intended to project the idea of a social order that enables every citizen to attain his or her fullest development economically, politically, culturally and spiritually. The rejection of the phrase ‘general welfare’ was based on the apprehension that the phrase could be interpreted as meaning the ‘greatest good for the greatest number’ even if what the greater number wants does violence to human dignity, as for instance when the greater majority might want the extermination of those who are considered as belonging to an inferior race. It was thought that the phrase ‘common good’ would guarantee that mob rule would not prevail and that the majority would not persecute the minority." (see Fr. Bernas; The 1987 Constitution of the Republic of the Philippines, 2009)
The preamble lays down the purpose of the Constitution. It also, as Fr. Bernas points out, is a "manifestation of the sovereign will of the Filipino people." Our laws, therefore, must always be made with the "common good" (as defined and understood within its context and history) in mind. To do otherwise could result in a law made with "grave abuse of discretion."
9.2.14
UA&P Law
my Trade Tripper column for this weekend's issue of BusinessWorld:
Your Trade Tripper has been busy the past few months. The reason being my involvement with the University of Asia and the Pacific's School of Law and Governance (slg.uap.asia), which just opened its doors to law students for the coming school year starting June. It's exciting work and the project of producing ethical, cultured, global, and professionally versatile lawyers radiates a pioneering feel.
As we pointed out in a previous column ("Suites 2.0, 07 November 2013), it's really a fallacy to say that 'there are too many lawyers". Indeed, the changed reality of the modern legal profession is such that a huge number of today’s lawyers are not even into traditional law firm work.
Most instead successfully parlayed their law studies as a more rigorous alternative to a Master’s degree in other fields to advance in careers in corporate management, entrepreneurship, academe, government, or international economic or financial institutions.
Incidentally, it's probably due indeed to the limited number of lawyers actually into trial work that probably explains (among other things) the country’s high legal costs.
In any event, the trend of lawyers achieving professional success beyond the courtroom is certainly significant.
I've noted that just in the recent past, the world's top economic institutions were all headed not by economists or bankers but by lawyers: Pascal Lamy (for the WTO), Robert Zoellick (World Bank), Christine Laggard (IMF). Also noticeable is the fact that the recent most effective US Treasury Secretaries (our equivalent of the Department of Finance) were both lawyers: James Baker III and Robert Rubin.
But this development is not limited to public institutions. Legalweek.com reported of astudy carried out by Reed Smith and KPMG, which found that top British and American corporations increasingly look to the legal profession to fill senior management roles: "This study indicates that businesses, whether on a global or national stage, listed or private, have increasingly appointed those with a legal background to provide institutional leadership through CEO roles. Such a development suggests that a legal mind provides the ability, skills and experience to take up leadership roles across the breadth
of organizations. This study invites the legal community to recognize the value that is placed on its broader involvement in the leadership of organizations."
of organizations. This study invites the legal community to recognize the value that is placed on its broader involvement in the leadership of organizations."
Indeed, "CEOs with a legal background are currently represented on the boards of a broad range of industries including aerospace, pharma, publishing, retail, and oil and gas." (New study shows rising prominence of lawyers in corporate CEO roles, legalweek.com, 26 March 2013)
The list of companies headed (or recently headed) by lawyers is impressive: Goldman Sachs, Bank of America, Cisco, Toys 'R Us, Nokia, Home Depot, Burger King, Pfizer, Fannie Mae, Delta Airlines, amongst others. Locally, GMA7 is a good example.
Hence why James Bradford, Dean of the Owen Graduate School of Management at Vanderbilt University, understandably says: "The law degree is today’s renaissance degree.”
So, it’s how to adapt and improve – not the quantity of – lawyers that’s crucial. Which leads to the matter as to what kind of legal education is most fitting.
UA&P's response to this: a law training that is deeply rooted in the humanities, providing a true liberal arts education. In doing so, not only are the law students trained in the technical aspects of the law but also gain a clearer understanding of the self, human nature, and the human condition. All of which (coupled with another benefit of a classic liberal education: training to attain self-mastery) should certainly go a long way in priming students for leadership not only in the profession but business, the academe, and – ultimately – in society.
And this thinking has certainly caught on. Columbia Law School Dean David Schizer (in a recent interview with the Financial Times, 10 November 2013) points out that: "You want the people who run the organization to think like lawyers; and you want the lawyers to think like people who run the organization." This, he argues, "should inform how the law is taught because graduates often end up not as practicing lawyers but running businesses."
Furthermore, UA&P's School of Law and Governance has "governance" in its name for a reason. Borrowing from Dean Schizer: "lawyers play a critical role in policy, particularly when it comes to shaping the rules that govern business practices."
Of course one humongous fact always looms for every law student: the Bar exams. While a competent faculty is de rigueur for any law school, UA&P goes a step further in this regard: individual personal mentoring.
Mirroring PAREF schools’ highly successful system of “one-on-one mentoring”, each student will be assigned a mentor he/she regularly chats with, forming a supportive relationship that develops the student’s personality, character, and over-all potential. In any given semester, a UA&P law student could expect to be closely coached by a law expert, judge or justice, or former top government official.
So, ethical lawyers that can move beyond the courtroom, unconstrained by borders? Pioneering indeed.
1.2.14
“If you can’t accept me at my worst ..."
is my Trade Tripper column in this weekend issue of BusinessWorld:
I am sure many of you have seen this inane meme on social media, you know the one with the words: “If you can’t accept me at my worst, then you don’t deserve me at my best.” Somehow that thought never settled well with me, although I couldn’t put my finger on it at first. But recently reading what passes for news nowadays, I realized that the reason for the quote’s popularity was the increasing number of self-absorbed flaky people and their “advocacy” to have flakiness be accepted as the new normal.
In a recent article -- which I absolutely encourage everyone to read -- by blogger, social commentator Matt Walsh (http://themattwalshblog.com/2014/01/23/if-i-cant-accept-you-at-your-worst-then-maybe-you-should-stop-being-so-horrible/), he ably put forward the real implications of such sentiment:
“‘Yea I’m a b*tch but deal with it. I won’t be with anyone who cant accept all of who I am!!!’
This was a grown woman. Apparently college educated. Older than me.
Out of all the profundities ever uttered, what does it say about our society that THIS is the quote we’ve decided to take to heart?
It says that we need to read more books.
Also, it says that we are horrible at relationships.
Yes, it’s true that, in a marriage, we must love our spouses in spite of their flaws. It’s also true that we all have flaws. But it’s ALSO true that only an infantile, spoiled, egotistical brat would ever treat a loved one with ‘her worst’ and expect them to deal with it because her ‘best’ will somehow compensate for it.
Newsflash: It’s not OK to be selfish, impatient, and out of control. These traits, while common, are UNacceptable. They should not be accepted, least of all by the people you claim to love. The onus is on YOU to change your behavior and your attitude, not on them to ‘handle it.’”
I have a theory: a country’s men can only be as good as its women. If women prefer their men infantilized, allowing them to remain as babies, letting them get fat, self-indulgent, loud, boorish, and insecure, then that’s exactly what we’ll get.
In one of his monologues on the hit show The Five, Greg Gutfeld commented on the self-destructive behavior of music star Justin Bieber. But in doing so, Gutfeld managed to say perhaps one of the most incisive and relevant observations in recent years, a point not necessarily new but something almost everyone forgot:
“I blame girls, look how he’s dressed... My point is no man will dress like that if girls didn’t approve, and that approval relinquishes their control over manliness. Women make men out of boys, and if they do not say grow up to a punk he never will grow up: like dump in public, cheat on spouses, spend cash on stupid clothes, drugs, and friends... This is not about Justin Bieber, it’s about all men and girls who expect so little from them. No wonder we’re a nation of babies sucking on the tweat of Twitter, exploding at perceived hurts online but you can’t bother to wear a belt. Women demand men.”
Unfortunately, to use Gutfeld’s words (from another monologue), if women prefer to “suspend critical thinking, replacing it with mindless euphoria driven by hormones and a desire for acceptance,” then what kind of men will we have?
We’ve been constantly bombarded with the message of “be yourself.” But that message, on its own, is inane. Left to ourselves, we’ll likely end up lazy, primitive, and dirty. It is because of our parents, family, and friends that we spur ourselves to “better ourselves.” Because being yourself is nothing if you don’t selflessly offer that self to others and hence the need to make what we offer be the best that can be.
Filipinos and Filipinas, however, need to again remember that bettering ourselves require effort, discipline, and perseverance. As Walsh points out: “We don’t emerge into the world as eternally entitled princes and princesses. We come into it as naked, crying, helpless babies. Our job is to grow out of that condition. And that will take a lot of changing and a lot of learning about what parts of us are unsuitable and insufficient and unacceptable. Sadly, some of us are unwilling to endure that process, so we never grow, and in failing to grow we fail to live. It’s a tragedy.”
This reminded me of a David Brooks’ article, “The Art of Growing Up,” regarding the maturation of Abraham Lincoln:
“In Lincoln’s day, to achieve maturity was to succeed in the conquest of the self. Human beings were born with sin, infected with dark passions and satanic temptations. The transition to adulthood consisted of achieving mastery over them.”
Alas, in today’s “feel good” social media culture or the academe’s obsession with Rawlsian thought, our people have chosen to ignore such commonsensical things as virtue, restraint, and self-discipline.
Fortunately, it’s never too late to turn ourselves around.
I am sure many of you have seen this inane meme on social media, you know the one with the words: “If you can’t accept me at my worst, then you don’t deserve me at my best.” Somehow that thought never settled well with me, although I couldn’t put my finger on it at first. But recently reading what passes for news nowadays, I realized that the reason for the quote’s popularity was the increasing number of self-absorbed flaky people and their “advocacy” to have flakiness be accepted as the new normal.
In a recent article -- which I absolutely encourage everyone to read -- by blogger, social commentator Matt Walsh (http://themattwalshblog.com/2014/01/23/if-i-cant-accept-you-at-your-worst-then-maybe-you-should-stop-being-so-horrible/), he ably put forward the real implications of such sentiment:
“‘Yea I’m a b*tch but deal with it. I won’t be with anyone who cant accept all of who I am!!!’
This was a grown woman. Apparently college educated. Older than me.
Out of all the profundities ever uttered, what does it say about our society that THIS is the quote we’ve decided to take to heart?
It says that we need to read more books.
Also, it says that we are horrible at relationships.
Yes, it’s true that, in a marriage, we must love our spouses in spite of their flaws. It’s also true that we all have flaws. But it’s ALSO true that only an infantile, spoiled, egotistical brat would ever treat a loved one with ‘her worst’ and expect them to deal with it because her ‘best’ will somehow compensate for it.
Newsflash: It’s not OK to be selfish, impatient, and out of control. These traits, while common, are UNacceptable. They should not be accepted, least of all by the people you claim to love. The onus is on YOU to change your behavior and your attitude, not on them to ‘handle it.’”
I have a theory: a country’s men can only be as good as its women. If women prefer their men infantilized, allowing them to remain as babies, letting them get fat, self-indulgent, loud, boorish, and insecure, then that’s exactly what we’ll get.
In one of his monologues on the hit show The Five, Greg Gutfeld commented on the self-destructive behavior of music star Justin Bieber. But in doing so, Gutfeld managed to say perhaps one of the most incisive and relevant observations in recent years, a point not necessarily new but something almost everyone forgot:
“I blame girls, look how he’s dressed... My point is no man will dress like that if girls didn’t approve, and that approval relinquishes their control over manliness. Women make men out of boys, and if they do not say grow up to a punk he never will grow up: like dump in public, cheat on spouses, spend cash on stupid clothes, drugs, and friends... This is not about Justin Bieber, it’s about all men and girls who expect so little from them. No wonder we’re a nation of babies sucking on the tweat of Twitter, exploding at perceived hurts online but you can’t bother to wear a belt. Women demand men.”
Unfortunately, to use Gutfeld’s words (from another monologue), if women prefer to “suspend critical thinking, replacing it with mindless euphoria driven by hormones and a desire for acceptance,” then what kind of men will we have?
We’ve been constantly bombarded with the message of “be yourself.” But that message, on its own, is inane. Left to ourselves, we’ll likely end up lazy, primitive, and dirty. It is because of our parents, family, and friends that we spur ourselves to “better ourselves.” Because being yourself is nothing if you don’t selflessly offer that self to others and hence the need to make what we offer be the best that can be.
Filipinos and Filipinas, however, need to again remember that bettering ourselves require effort, discipline, and perseverance. As Walsh points out: “We don’t emerge into the world as eternally entitled princes and princesses. We come into it as naked, crying, helpless babies. Our job is to grow out of that condition. And that will take a lot of changing and a lot of learning about what parts of us are unsuitable and insufficient and unacceptable. Sadly, some of us are unwilling to endure that process, so we never grow, and in failing to grow we fail to live. It’s a tragedy.”
This reminded me of a David Brooks’ article, “The Art of Growing Up,” regarding the maturation of Abraham Lincoln:
“In Lincoln’s day, to achieve maturity was to succeed in the conquest of the self. Human beings were born with sin, infected with dark passions and satanic temptations. The transition to adulthood consisted of achieving mastery over them.”
Alas, in today’s “feel good” social media culture or the academe’s obsession with Rawlsian thought, our people have chosen to ignore such commonsensical things as virtue, restraint, and self-discipline.
Fortunately, it’s never too late to turn ourselves around.
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