UP Law Dean 2008/2011

This Disaster, Our Tasks

Colleagues in the faculty of law, fellow alumni, students of law and staff of the UP Law Complex:

As I write this note, information regarding our faculty, staff and students who have been affected by this calamity arrive in trickles. On the other hand, volunteers as well as different types of support have been offered in waves.  Indeed now is the time  that we again work as a community to assist those affected and to find ways to prevent the scale of this catastrophe.

In the spirit of thus organizing our efforts, I propose that our urgent tasks consist of three parts:

First, we need to assess how many and how serious our constituents have been affected by the calamity as well as evaluate our ability to mobilize support for them in conjunction with other philantrophic groups and interests and government;

Second, we need to mobilize the support that have been volunteered so that they effectively and efficiently end up with those who actually need them; and finally,

Third, we need to reflect on what has happened with the end in view of seeing how we can prevent or at least mitigate such catastrophe.

These three parts are now happening at the same time.  Each of them need not be done solely by a committee or task group.  We should do all of these without stifling individual and organizational initiatives.  We just need to make sure that our efforts do not work at cross purposes with each other. In all cases, we should always keep the spirit of community alive.

The Law Student Government headed by JV Lachica (president) and James Donato (vice president) is taking the lead with respect to creating a list of students affected, the extent of their damage and the types of assistance that they will be needing.  Prof. Solomon Lumba and the Office of the College Secretary is checking up on the faculty.  Mr. JV Lachica’s family was also hit hard by the calamity.  But, as far as I know he has not reneged on his duty as LSG president and is in fact leading its central board in its activities. Prof. Lumba himself who lives near the Marikina River Bank was also affected but he has informed me that this is something that he still wishes to do.  Prof. Patricia Daway, our Associate Dean, is working through our administrative officers to check on the status of close to our administrative staff (which number close to 100 individuals).  This assessment will determine the kind and extent of assistance we should mobilize as well as provide us with information on the adjustments that our institution should do as it continues with its mission.  That is, we need to know how we adjust our academic programs, our calendar of activities as well as our research and extension activities.

I highlight our constituency only because I suppose that no one else might be looking out for them as part of our institution.  I am also tempted to assume that others have been affected more seriously and will have less resources to help themselves.  But, I do not think that that would be a responsible position to take considering that this calamity have engulfed whole homes of even some of our faculty members and that the resources that government does provide to some of our staff have, at the start, been way below a living wage.  I am sure that those of you who have more to give to others who are not part of our constituency will know where to send your contributions considering that the media outfits have published and announced drop off centers of major companies and religious institutions.  I encourage you to help them as much as you would want to help our faculty, staff and students.

The next set of tasks would be to mobilize assistance and organize their delivery based upon a set of priorities.  Here, decisions need to be made and I will shortly be convening a committee of faculty, students and staff to make these decisions.  It is in this light that I encourage those who have been spared to lend some assistance.  This calamity has hit our family and our friends.  I do not think that now is the time that we allow ourselves to feel helpless.  Even the slightest assistance that you can do or give will mean a lot to the recipient.  I would not even discount that a simple phone call to some of your colleagues that have been affected will mean a lot for them.

The Student Lounge at the first floor of Malcolm Hall will be used as drop off point by the Law Student Government.  Financial contributions can be left with Sally and the other staff at the Office of the Dean or deposited at the UP Law Student Government PNB Bank Account Number 393046000019.  They will also appreciate if you could give them your transaction details through Chris Fernandez at 0917 5320151.

Finally, we need to reflect on what has happened and why it has happened at this magnitude.  As the premier legal institution in this country and its leading public legal research institution, we should truly use this occasion to strengthen our resolve to identify what we can do with respect to themes like climate change, disaster management and government accountability.  Perhaps in the dialogues to identify and define these problems and in finding solutions we too can work as a community as peoples and societies confronted with very real problems that need immediate solutions.  To me, after we have met the short term needs of our constituents, this is our most important, most strategic urgent task.

Again, my many thanks to those who have gone out of their way to help out during these trying times.  I have many stories to tell especially about the heroism of Lee, Prof Santos and the library staff, our students even while they were stranded last Saturday evening and many more.  To me they are enough to again rekindle my faith in the ordinary Filipino and my hope that there is something we really can do to matter not only for ourselves but for entire societies as well.

Finally, I wish to extend my family’s sympathies to those affected and hope that the individual humble efforts of the many in this institution can help to mitigate your losses and to acknowledge you and your family’s courage during these trying times.

Marvic Leonen

Dean and Professor of Law

UP

President waives her prerogative to appoint two new Justices of the SC

 

                                                                                    July 30, 2009

 

The Honorable

Judicial and Bar Council

 

            Through:

 

                        Honorable Reynato S. Puno

                        Chief Justice of the Supreme Court

                        Presiding Officer

                        Judicial and Bar Council

 

            Subject:

 

                        Urgent request not to send a new, expanded or amended

                        list of nominees to the vacancies in the Supreme Court

                        due to the retirement of Justices Dante Tinga and

                        Ma. Alicia Austria-Martinez

                                               

Your Honors:

 

            This refers to the action of the President of the Philippines communicated through the Executive Secretary requesting the Judicial and Bar Council to expand the list of nominees for the current two vacancies in the Supreme Court. 

 

            As lawyers, taxpayers, members of the academic community and citizens represented in the Judicial and Bar Council, we pray that the Judicial and Bar Council not act on the request from the Office of the President on the ground that any transmittal of any new, expanded or amended list would violate the letter and intent of the Constitution.  We would gladly file the necessary memoranda or petition should the JBC deem it necessary for us to expound on the constitutional and legal points that we raise preliminarily in this letter.

 

            The request of the President violates article VIII, section 9 of the Constitution, to wit:

 

Sec. 9.                        The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

 

            Clearly, the power to make appointments to the Supreme Court is not within the absolute discretion of the President.  Under the present balance of political power mandated in our Constitution, the President does not have the discretion to name a candidate to any vacancy in the Supreme Court.  It is the Judicial and Bar Council that receives the applications of candidates, vets their qualifications and provides the President with a list of nominees from which she is to choose who may be appointed.  The members of the Judicial and Bar Council on the other hand are composed of those who are ex-officio and those who are appointed to represent other sectors.  The ex officio representatives are the Chief Justice (representing the Supreme Court), members of the House of Representatives and the Senate, and the Secretary of the Department of Justice.  The Secretary of Justice, as alter ego, already represents the President in the Judicial and Bar Council.  The representatives of the academic community, the private sector and the Integrated Bar of the Philippines are appointed by the President but undergo processes at the Commission on Appointments.

 

            The generation of the list of nominees is within the sole discretion of the Judicial and Bar Council.  The appointment of any one from the list of nominees provided by the Judicial and Bar Council is within the sole prerogative of the President.  The President cannot go beyond the list.  She cannot certainly request, directly or indirectly, the JBC to alter, amend, modify or expand the list of nominees. In the discharge of their functions, neither the JBC nor the President can interfere with the clear textually granted penumbra of discretion provided to them by the Constitution. (Angara v Electoral Commission et al.)

 

            We are certain that the legal luminaries who are now members of the Judicial and Bar Council will agree that this reading is clear from (1) the provisions of article VIII, section 9 as well as the other provisions creating the Judicial and Bar Council found in the 1987 Constitution; (2) the intent manifest from a comparison with the former procedures for appointing judges and justices under the 1973 as well as the 1935 constitution; (3) the spirit of the provision which is to maintain the independence and the autonomy of the judiciary.

 

            What the President cannot do directly, she should not be able to do indirectly.  We can safely assume that the Judicial and Bar Council, when making the list of nominees, did their constitutionally mandated functions faithfully and with the greater interest of the nation in mind.  There is no showing that any of those in the list transmitted to the Office of the President were not qualified to the Supreme Court.  This is also, not the official position of the Office of the President.

 

            Therefore, the only viable reasons for the Office of the President to request that the list be expanded or amended is that, at best, they do not agree with the possible judicial philosophy of those in the list.  Or, at worse, their chosen candidate is not in the list. Neither reason can be constitutionally sanctioned.  The first is unacceptable because the choice of who to appoint to the judiciary is, by virtue of the Constitution, not solely within her prerogative.  The second set of reasons clearly violates the letter and intent of the Constitution.

 

            More importantly, the suggestion of the Office of the President that they can return a list of nominees regularly transmitted by the Office of the President to the JBC so that this list can be amended, modified or expanded will discourage competent and independently minded aspirants to the bench. The inability of the Judicial and Bar Council to assert its constitutional mandate may, with reason, be read as a signal that those who aspire to the bench must have strong political or other relations with the incumbent in the Office of the President.  Rather than independence and competence therefore, loyalty to the incumbent President may be perceived as the more dominant criterion for appointment.

 

            Needless to say, the action of the Judicial and Bar Council on the pending request of the Office of the President will define the basis of legitimacy of the Supreme Court and with it the extent of our fealty to the rule of law.  We write to you as citizens and officers of the bar whose sworn duty is also to uphold the provisions of the constitution.

 

            The failure of the President to act on the list of nominees transmitted on time by the Judicial and Bar Council therefore indicates her waiver to make appointments to two of the vacancies in the Supreme Court.  She cannot now make any appointments since she has returned the list of nominees to the Judicial and Bar Council. There is nothing in the Constitution that prevents an incumbent President from making this decision for her own political reasons.  Thus, in our view, these two vacancies may therefore be filled by the next President based on a list to be transmitted by the Judicial and Bar Council after June 30, 2010.

 

            We hope that the JBC would be able to assert their constitutionally mandated function despite strong political pressures.

 

We remain,

 

 

                                                                        Respectfully yours,

 

 

                                                                        Jovito R. Salonga

                                                                        Former Senate President

                                                                        Chair, Bantay Katarungan

 

                                                                        Francis N. Pangilinan

                                                                        Senator

 

 

                                                                        Marvic M.V.F. Leonen

                                                                        Dean and Professor of Law

 

                                                                        Katrina Legarda

                                                                        President, WILOCI

Joint Statement of the GRP and the MILF Peace Panels

JOINT STATEMENT

The Chairmen of the GRP and the MILF Peace Panels re-established official contact today under the auspices of the Malaysian Third Party Facilitator, to end nearly a year of impasse in the peace negotiations, and to complete the preparation for the resumption of the Talks.

The two-day Special Meeting ended on a high note with both sides expressing a common desire to restore trust and confidence in addressing major issues in order to pave way for the early resumption of the stalled peace negotiations.

In their meeting, they agreed on the following:

1. Mutual effort to sustain both the Government's Suspension of Military Offensives (SOMO) and the MILF's Suspension of Military Actions (SOMA);

2. Acknowledgment of MOA-AD as an unsigned and yet initialed document, and commitment by both parties to reframe the consensus points with the end in view of moving towards the comprehensive compact to bring about a negotiated political settlement;

3. Work for a framework agreement on the establishment of a mechanism on the protection of non-combatants in armed conflict;

4. Work for a framework agreement on the establishment of International Contact Group (ICG) of groups of states and non-state organizations to accompany and mobilize international support for the peace process.

The GRP Panel Chairman took serious note of the concern of the MILF on the implication of the exclusion from the SOMO of some MILF commanders tagged as "rogues" by the Government.

The Parties expressed their gratitude to President Gloria Macapagal-Arroyo for her desire and commitment to durable peace and sustainable development in Mindanao, and to Malaysian Prime Minister Dato' Sri Mohd. Najib bin Tun Haji Abdul Razak for his generous and steadfast support and assistance to the pursuit of these goals. Their joint efforts largely contributed to this significant advancement in the GRP-MILF peace process.

Done this 29th day of July 2009 in Kuala Lumpur, Malaysia.

For the GRP: (SGD) AMB. RAFAEL E. SEGUIS
GRP Panel Chairman


For the MILF: (SGD) MOHAGHER IQBAL
MILF Panel Chairman

__._,_.___

June 25, 2009: International economic law, announcement

We will not have classes today due to unavoidable circumstances.  However, you are required to make your postings regarding the second session (see relevant page at the right side of this blog).

Washing your hands is an important public health issue

Rather than feeling helpless about the present influenza A (H1N1) pandemic and other germ borne diseases, we can also focus on a very basic act that each of us can do.  We do not need erudite studies to be able to do a very simple thing: wash our hands.

I am reproducing a brief portion of a book (claiming fair use rights in intellectual property) that more eloquently speaks for this everyday act of resistance that we can do:

From Philip M. Tierno, Jr., Ph.D., The Secret Life of Germs: Observations and Lessons from a Microbe Hunter (Pocket Books: 2001), 10-13.

(start of quote)

It Could Happen to You

In the public rest rooms of Grand Central Terminal in midtown Manhattan, a scientific experiment is under way.  The behavior of all the people who use the rest rooms is being observed without their knowledge.  The researchers conducting the experiment want to find out the answer to a simple question: Who will, and who will not, wash their hands before leaving?

A busy train station is the perfect place for the experiment, because the variety of people passing through it insures that the researchers will get to observe a representative cross section of the population.  In Grand Central, a major New York City subway station as well as an end point for travel in and out of the city, that cross sectio includes homeless people, commuters, suburbanites in town to shop or see a show, workers from station businesses, some of which sell food and people form the surrounding neighborhood.  People of every age, race, gender, ethnicity, and social class pass through the station every day, and as some of each group use the rest rooms, cameras record whether or not they wash their hands.

The results of the experiment don’t surprise the researchers, but they are dramatic.  The numbers confirm the results of similar experiments: well over sixty percent of people fail to wash their hands at all, and fewer than ten percent really wash their hands adequately.  Almost no one cleans his or her hands thoroughly with soap and water and then avoids touching any surfaces before leaving the rest room.  Men, women, and children, blue-collar and business-class, people generally don’t wash their hands at all, or they only sprinkle a little water on their fingertips, as the high nobility did at the court of France’s Louis XIV, the Sun King, because they feared the diseases that water itself might transmit.

As far as hygiene is concerned, that little sprinkle of water is no improvement over not washing.  Both behaviors will leave microscopic germs on the hands, ready to be brought near the eyes, nose, and mouth, or an open cut or sore, all primary infection sites, as people unconsciously touch their faces and bodies, greet one another with handshakes and kisses, or exchange objects such as the food that is prepared and served in a restaurant.

Just consider this imaginary, but very possible scenario.  Three men stand side by side at the urinals in a rest room at Grand Central.  To the left is a twenty-something associate in a law firm  When he got off his subway train from Brooklyn a few minutes before, he bought a bagel with cream cheese to eat at his desk; it’s now in a paper bag stuffed into his messenger-style shoulder bag.  To the right is a corporate insurance executive in his fifties, just off the train he takes every day from Nyack to his midtown office.  In between them is a refugee expert for the United Nations, who’s spent the past two weeks in Africa and Southeast Asia, gathering field assessments for a special report to the secretary general.  As soon as he reaches his office, he as to start finalizing his covering memorandum.  he worked on it on the journey home, which began in Indonesia twenty-seven hours ago, but the beginning still doesn’t feel quite right.

The last leg of the UN expert’s journey was a red-eye flight from Los Angeles.  After it landed in New York, he raced home to drop his bags and change into some clean clothes.  He was just about to leave his apartment thirty minutes ago, when he became nauseated and threw up.  Luckily, he didn’t get anything on himself, as far as he could see; all he had to do was brush his teeth again.  Then he went out the door, regretting that he’d eaten that yucky-looking breakfast on the plane that morning.  You can’t trust airline food, he thinks, especially when you’ve been moving through so many time zones in so few days.  he’s always had an irritable stomach, and unfortunately it seems to be getting more irritable with each passing year.

Unbeknownst to the man from the UN, however, he contracted Ebola virus about a week ago in Uganda.  Now the virus is spotting his hands, which have microscopic particles of vomit on them.  He will soon be very sick.  Even as he stands at the urinal he starts to feel flushed and overheated.  Sweat breaks out on his forehead and the palms of his hands.  The virus teems in all his bodily fluids, in fact, including his urine,  and that too is now spotting his hands.

Serendipitously, all three men finish at the urinals at the same time.  As the UN expert steps away from his urinal, he feels as if he’s going to faint and he stumbles a little.  The twenty-something lawyer and the middle-aged insurance executive both reach out to grab him.  They steady him before he falls, and for a moment he stands in between them, gripping the lawyer’s right hand in his left hand and the insurance executive’s left hand in his right hand.  As he does so, he transfers the Ebola virus to each through the vomit, urine, and sweat on his hands.  To the naked eye, his hands still look clean.

“Whew!  This is a little embarrassing,” the UN expert says.  “I ate some bad fod a little while ago without realizing it, I think.”  He lets go of the Good Samaritan’s hands, and they ask him if he’s sure he’s all right.  he insists he is, thanks them again, and heads out the door.

The young lawyer follows right after him.  Neither bothers to wash his hands.  When the lawyer reaches his office, he goes straight to his desk to eat his bagel.  In the process, he ingests the Ebola virus.  In two weeks he will be as sick as the UN expert will become over the next couple of days.  The prognosis for both is dire.  As it will be for anyone else they infect.  As for the insurance executive, he’s the son of a cleanliness fanatic.  Whenever he hears the expression “You could eat of the floor in that house,” he recalls his mother’s pride in keeping things spotless and how much trouble he used to get into for tracking dirt inside.  Then there were the nuns at parochial school, who conducted cleanliness checks every day after lunch and recess, and who wacked many a dirty hand with their rulers.  They always hit with the metal edge, too.  So now, a creature of habit, the insurance exec goes from the urinal to the sinks and carefully washes his hands.  In the process, he sheds all traces of the Ebola virus before it has a chance to enter his system or to infect someone else he touches.

This scenario may be imaginary, but it is all too possible.  It demonstrates that cleanliness in public rest rooms is not just a question of what people naturally touch inside the rest room, but also of whatever microscopic organisms they pick up elsewhere and then carry inside to deposit on surfaces.  In so doing they leave residues of germs for others to touch and become contaminated with.  Even a pristine-looking bathroom may provide fertile breeding grounds for germs.

What makes this important is the fact that eighty percent of all infectious illnesses, from the common cold to flesh-eating bacteria and lethal viruses like Ebola, are transmitted by touch.  This happens either directly, by contact with another person, or indirectly by contact with something that person has touched.  In this light, hand washing emerges as a public-health issue that is every bit as serious as smoking, if not more serious...

(end of quote)

Students in Evidence ay 2009 to 2010

Your assignments are in a page at the right hand portion of this blog.  You are to post your critique as comments.

MVFL

College of Law: Suspension of Registration, Closure of Office of the College Secretary, Law Library

 

For:            All students, staff and faculty

            UP College of Law

 

Subject: Precautionary closure of the Office of the College Secretary and the Law Library due to suspected cases of Influenza A (H1N1)

 

June 9, 2009

 

            This afternoon, a law student who just arrived from the United States and exhibiting flu like symptoms went to the Office of the College Secretary and the Law Library.  This is in spite of continued warnings.  There are also reports that he was also present in a briefing with the whole sophomore batch yesterday. He shall not be allowed to enlist and register any of his subjects without a medical clearance from the proper authorities.

 

            In view of this, the Office of the College Secretary and the Law Library shall be closed until Monday, June 15, 2009.  All staff of these units shall be put on quarantine during this entire time and will be asked to spend the quarantine at home.  Parts of the registration process that require presence in Malcolm Hall shall therefore be suspended until Monday.  Those who have completed their registration process may still however proceed to payment.

 

            I strongly urge that all students who came in contact with this person during the sophomore briefing also put themselves on voluntary quarantine.

 

            In the meantime, no student shall be allowed to enter Malcolm Hall unless they have official business with the offices that remain open.

 

            This closure applies only to the Office of the College Secretary and the Law Library of the College of Law. This is a precautionary measure should some of the staff in these units have been infected by Influenza A(H1N1). The College Secretary should be informed should any of those on quarantine develop flu like symptoms.

 

            Again, we repeat the following advisory:

 

            (1) Should you have traveled abroad, you are supposed to go on self quarantine for at least ten (10) days after your arrival; and

 

            (2) Should you have come in contact with any person who has just arrived and had not accomplish the self quarantine, you should also go on self-quarantine for at least ten (10) days from the date of your contact with that person.

 

            (3)  Contact, for purposes of this advisory means being within six feet of the person concerned making it possible for droplets to be transferred to one’s mouth, nose or eyes.

 

            Any infraction of this advisory may constitute misconduct and shall be prosecuted accordingly.

 

            The following are recommended actions to minimize the transmission of the disease (from the CDC webpage):

 

            (1)  Wash hands frequently with soap and water or use alcohol based hand cleaner when soap and water are not available.

 

            (2)  Cover your mouth and nose with a tissue when coughing or sneezing.

 

            (3)  Avoid touching your eyes, nose and mouth.

 

            (4)  People who are sick with an influenza-like illness (ILI) (fever plus at least cough or sore throat and possibly other symptoms like runny nose, body aches, headaches, chills, fatigue, vomiting and diarrhea) should stay home and

minimize contact with others, including avoiding travel, for 10 days after their symptoms begin or until they have been symptom-free for 24 hours, whichever is longer.

 

            (5)  Avoid close contact (i.e. being within about 6 feet) with persons with influenza like illness.

 

            Wearing masks is additional precaution but is not necessary should you not be within close contact with a person who has just come from abroad or who is infected with the virus.  Keeping yourself informed about the characteristics of this virus and its modes of transmission is also a good precaution.

 

            Those who need to go on self quarantine should understand that these precautions are not being done to discriminate against them.  Rather it is done to protect those who are especially vulnerable to complications arising from the disease. 

 

            For strict compliance.

 

 

 

                                                                        (original signed)

                                                                        Marvic M.V.F. Leonen

                                                                        Dean and Professor of Law

 

Faculty advisory: Consensual and Intimate Relationships with Students

I have posted a page containing the faculty advisory on consensual and intimate relationships with students which my office issued yesterday.  Kindly read for your information.  Comments are most welcome.

Orientation Speech for UP Law Class 2013

First Year Orientation Speech

June 5, 2009

 

            Your reality changed the moment you accepted your admission slip and entered this august hall.  By legal fiction you have entered into what the Supreme Court refers to as an implied or implicit contract to finish all the courses in the Juris Doctor degree conducted within the limits of the academic freedom of your faculty and this institution.  By tradition, you have committed to work within the discipline of our profession.  You have also accepted our required work ethic.  You will study, imbibe skills and perform in a way that you have never thought you could study, imbibe skills and perform at any other time in your life.

 

            The UP College of Law is the only law school in this country that has a full time academic faculty.  In 109 other law schools, their faculty teach part time.  Your law school has 21 tenured full time faculty members and a complement of about 50 professorial lecturers. 

 

            Of the 21 tenured faculty members, 14 have advanced degrees in law.  Two are taking up their Masters in Law this semester.  Another one is returning with a doctorate in law in policy by next semester.  One more will start his masteral studies next year.

 

            All of the 50 or so professorial lecturers are accomplished in their field.  On a daily basis, you will be studying law not only with luminaries and experts but leaders of Philippine society.

 

            This College of Law is part of a Law Complex.  Within this law complex is the largest—and most efficiently run--law library in this country.  Another component is the Law Center: the only publicly funded legal research institution housing the Institute of Human Rights, the Institute of Judicial Administration, the Institute of Governance and Law Reform, the Institute of International Legal Studies, a training and convention division and the information and publication arm of the complex.   This is the only law school in this country that is truly academic in that it finds the balance between the profession and the requirements of scholarship.

 

            Our curriculum, last revised in 1984, still exists as the model curriculum of most, if not all, the other law schools.  Our dean sits, ex officio, in the Supreme Court’s legal education committee and the Commission on Higher Education’s Technical Working Group for Law Schools.  We are now in the process of rethinking our curriculum in the light of the challenges of the present generation.

 

            We have pioneered in clinical legal education and the process of integrating skills training in our main courses.  Four years from now, if all goes well, you will be doing law: interviewing and counseling clients, drafting their pleadings, representing them in courts, working their appeals and facing the judgments of their courts supervised by a preceptor at the Office of Legal Aid.  By the time that you graduate you will be prepared to do law better than any other graduate from any other law school.  We train you to be good lawyers and great leaders.

 

            You have entered an institution with an alumni network unrivaled by any other law school in this country.  We have had Presidents, Chief Justices, Associate Justices, Judges, Senators, Members of the House of Representatives, Partners of law firms, chief executive officers of companies and many others.  Many of the alternative or public interest law groups existing in our country has been founded and are still run by some of our alumni.  In 2011, when you will still be in this institution, we will be celebrating our centennial.  During this centennial, we will be reflecting on our contributions as an institution to the Philippine society in its current contexts and charting our way for the next century.

 

            But, what truly makes this institution worthy of its reputation is its insistence in answering the day’s fundamental questions.  In the 1970s and 1980s, this was why, in the light of a dictator, we still had to go to our classrooms to learn law.  Today, it is why, in spite of widespread corruption and the seeming inability of our leaders to get their priorities right, we still insist that it is worthwhile to get a Juris Doctor degree.  In other words, is the study of law--the UP way--still relevant.

 

            The answers are always obvious from hindsight.

 

            The ability to do law is a source of power.  The actions of the agents of State, in its international and domestic incarnations, seek legitimacy in the text, process and institutions of the law.  Even the authoritarian in 1972 sought to promulgate a constitution by having the Constitutional Convention finish its work.  Incumbent presidents have hid behind the veil of processes like impeachment and ideas of due process to defeat efforts to make her accountable.  A farmer wanting to bring a stronger claim of ownership over lands that she will need the operation of some form of agrarian reform law.  An indigenous community warding off the world’s largest mining companies from encroaching, without their consent, in their ecologies must wade through the processes defined by our natural resources law and of late the indigenous peoples rights act.  An entrepreneur wanting a fair and competitive economic environment must look through the pages of competition laws, if there be any.  A victim of sexual harassment in any work or teaching environment wades through the text of laws that prohibit the abuse of authority and trifle with human dignity.

 

            Law provides a dominant frame of understanding reality.  It infects social ideas of what is legitimate or illegitimate; even though lawyers know that what is legal is not necessarily just.  Law therefore is constitutive of our identity as persons, groups or communities.

 

            Incompetence of lawyers weakens that power and hence defeats legitimate claims of clients, identities, groups and communities. Incompetence can exist because of ignorance.  But, it too exists when those who have the opportunity to study law either trivialize it or fail to see what they can achieve as they go through its text. 

 

            It is the incompetent lawyer that becomes more of the slave.  It is the incompetent lawyer that puts our societies in unnecessary conundrums.  It is the better lawyer that will be able to take leadership roles.  It is the better lawyer that finds solutions.  It is that lawyer that our institution routinely produces.

 

            Doing law is a mixture of intelligence, argument, performance and creativity; but its basic foundation is a knowledge and understanding of the law as it is.

 

            Knowing and understanding the law “as it is” will not necessarily mean that we will convert you into glorified puppets of the compromises of principle and value created in dominated forums and embedded in our legal artifacts.  As both Vladimir Ilyich Lenin and Jacques Derrida argues, greater ideas emerge and gestate from the old contemporary worn out ones.  New social arrangements are defined from the sins of the old societies.

 

            You will be asked to very familiar with the text of the law, its varied interpretations in jurisprudence, the various methodological and ideological approaches and standpoints of interpretations such that--to those uninitiated--you would have seemed to have “memorized” the provisions.  You will be asked to rehearse these ideas in a very hostile context until you are able to understand how you have to deal with the weight of authority of interpretative modalities that have become doctrinal or even canonical.  You will discover, as many of us have discovered, that it is through this method that you will be able to see the interstices--the subversive gaps in thought and the limits of the official texts that you study.

 

            All these will challenge you.  Of the 200 that usually make it to our first year classes, only about 100 graduate. 

 

Two specific forces will tempt you during your first year here in the College of Law.

First is the allure of technology.  Today, it is possible to put your codals on podcast, cut and paste text from your cases into your ipods, contain various law journals in your iphone and depend on the internet for sundry information not accessible five years ago.  Today’s desktop, virtually and actually, is multitasked.  The allure of technology will distract you and will entice you to divide your focus.

Resist this temptation.  These artifacts of information and the new media are supposed to be there to enhance learning—not supplant it.  There is no substitute for the painstaking analog way of critical reading: a word at a time with all phrases put in all possible contexts allowed by its authors.  Use your resources as tools, do not allow them to define you as a mediocre student.

Second is the necessity of social strife.  As we speak several sinister events should put us on guard.  Bogus attempts have been made to change our constitution.  Politicians take positions and do acts even at the cost of putting our entire constitutional and social order in shambles simply to shy away from accountability.  The number of internally displaced people in Mindanao that has reached world record proportions.  The continuing challenge of a chaotic world financial system and fair trade are on the negotiating table.  Our existence as a specie is being discussed in forums of climate change.

Engage in these issues, make them the inspiration or the heuristic for you to understand law.  Make them the very motive for you to learn. But do not allow your political mobilizations substitute for the most powerful political statement that you can do for now: and that is to study law so that you could participate better in a few years time as a lawyer and as a leader.

I wish all of you the best.  Be patient, persevere with all humility, the rewards at the end of your efforts await you.

Message to the 2009 Graduates, UP College of Law

This is it. 

But, not exactly.

Some four or five years ago, you came to us wanting to be admitted to the UP College of Law.  The reasons you cited were varied:  you wanted to be admitted to the best law school, you wanted to be mentored by the best faculty, you wanted to serve the people--and--for a few, your parents wanted you to be here (although I hope that you have since changed).  Upon admission, you were eager to encounter your first law classes with a real live law professor.  After the first week of classes you were eager to finish the entire course--let alone get a class over with.  I met with you almost a year ago, to remind you of what you will be up against after you graduate.  I hope I succeeded in bringing in more sobriety.  Then you went through clinical legal education, UP style and Supervised Legal Research.  Now you are here.  

This time last year, you were an anxious junior waiting for your grade.  Today, you are an anxious graduate waiting for the bar examinations.

This is the meta-narrative of birth, suffering, renewal.  But I must confess that seeing most of you today, I am unsure where you are right now: I can only guess that in all probability you are at the birth cum suffering part.

My task today is to bother you one more time.  There is a difficult realization of the legal profession that until now has not been satisfactorily resolved.

Duncan Kennedy calls this “legalism”.  It is the law’s peculiar ability to embed--sometimes quite furtively--politics.   It then translates wide ranging social issues into narrowly framed legal questions.  Reflecting on the human interactions that we have had with persons or communities, I confirm that indeed legal questions bear a “certain hostility to discursively open-ended, multi-genre, and poly-vocal conversations about how we should live, what we should value and what we should prohibit and what is possible in collective life.”  

These “discursive contestations” are replaced with 

“…adversarial and yes/no structures [which] can quash exploration; expert and specialized languages [that] can preclude democratic participation; a pretense that deontological grounds can and must always be found [that] masks the historical embeddedness of may political questions; and the covertness of norms and political power within legal spaces [that] repeatedly divests political questions of their most crucial concerns.  When the available range of legal remedies preempts exploration of the deep constitutive causes of an injury…when the question of which rights pertain overrides attention to what occasions the urgently felt need for the right…, we sacrifice our chance to be deliberative, inventive political beings who create our collective life form...”

There is a temptation in legal education to train you not to ask whether the person is rich or poor, but whether your client can produce enough evidence to show that it falls within the legal concept of “indigency” covered by Rule 141 of the Rules of Court and its relevant jurisprudence.  The gravest problems of political accountability nowadays is captured by lawyers as an issue of whether the House of Representatives and the Senate can propose amendments to the constitution by voting together or separately.  The more relevant--but in our view--the more general question is whether we still trust the members of the House of Representatives enough to believe that whatever they do today is to the benefit of our society. The cosmopolitan Ibaloi is a problematic member of the legal conception of “indigenous person”.  The gay cross-dresser is a problematic “male” othered by the current version of woman in the law prohibiting violence in intimate relationships. The accountability of public officers is reduced to whether there can be enough evidence to support their prosecution.

Established faculties of law need to put up its defenses against this onslaught.  And we are no exception.  The best that I can do for now is to approach it in two ways: first a credible defense, and second a conditional surrender. 

For a credible defense, I say that this discourse of legalism may be too sweeping

.  

Legal categories are necessary “placeholders” that provide platforms for better formulation.  Progressive norms—even essentialized identities--won in legal texts are incremental or simply tentative arrangements until a more effective recourse is found to address urgent or imminent threats.  New interpretations can reformulate old legal labels and therefore neutralize the effectiveness of usual stereotypes against progressive projects.  In other words, the generalizations made in law are essential starting points for a dialectic engagement with reality so that better, more precise, more relevant formulations can be made hopefully in a democratic manner.

The various words for different kinds of rain depends on our ability to be able to appreciate the existence of rain.  The various kinds of real parties in interest requires our having experienced its limits for cases that involve a lot of externalities like environmental or consumer tort cases.  The various kinds of income become possible only after engaging the creativity of commercial law lawyers who continually invent the possibilities of honoraria, awards, benefits and many others. The various relationships of organs of power become more defined from the nuanced readings of concepts like separation of powers, judicial review, political question and even separation of church and state.

To me, this is a good defense because it accepts that our realities are simply too complex for us to understand it.  That laws, as signs, text or symbols, can not fully capture the full range of nuanced values that can be truly democratically deliberated.  That laws are but concepts, structures, institutions or social fields which require workings within the context of complex communities, societies and identities.

The other approach is conditional surrender, which of course borrows from our critical defense. We accept that being an efficient lawyer does not necessarily mean being a good citizen nor a good human being.  Thinking like a lawyer is certainly not the same as thinking as a critical human being.  

In this day and age where we have to contend with the realities of law, good lawyering should still have its utilities.  

Years ago, in my younger days, as I journeyed through trails in mountains that lined up Marag Valley, I marvelled at the ability of doctors to be able to immediately help communities where we passed.  Immediately, they could attend to the sick.  They could tell them what best to eat given their impoverished circumstances.  They were able to comfort peoples long neglected by our government.  And I, at that time, a very young lawyer with a backpack can only tell them things like human rights and the constitution.

It made me doubt my existence in my identity as a lawyer.  Are we truly only peons of those that want to make more money or those that want to accumulate more power?  Later on, I realized that our role as lawyers also had power.  The words “unnumbered shanty” in a search warrant spelled freedom for a group wrongly arrested by police operatives.  The words “either financial or technical assistance agreement” potentially forced the question of foreign ownership of mining companies operating in the Philippines.  The canon that tax laws should be construed strictly against the taxpayer caused a large concessionaire occupying ancestral land in Baguio to pay a huge sum of taxes in arrears.

But there is still a lot to be done.  In my reckoning there should be no “prostitute” nor “adulterer”.  The concept of “title in fee simple” might be too general.  “Regalian doctrine” is a fiction that should be reviewed in the light of better justifications of property ownership and of the corruption that that exists in national agencies that dole out concessions relating to our natural resources.

Pure activist hubris will not change these concepts. Neither will a grand millenarian theory of society which requires dramatics scenes of revolt or revolution be sufficient.  We lawyers, have to look at the details of this concept, work it and understand why they do not work.  Dramatic reforms are not possible to one who is not professionally competent.  You have to understand the text of our legal artifacts, our dogmas and canons to see where the interstices lie.

And that is why the College of Law of the University of the Philippines makes a difference.

You understand that you have to do the “legalisms” but go beyond it.  You are not simply going to be the efficient lawyer, but you are going to be a good lawyer--a human being concerned with the fate of others especially those who were not as lucky as you, those who deserve from society more than the destitute and deplorable conditions they are in.

The challenge of “legalism” has not yet been fully academically answered.  But, you can live with it.  Life does have its own share of infinite contradictions.  The long term questions we have of our profession and our utility for our society keeps us in our place.  We, as an institution, has accomplished much--but not yet enough so that we have to toil, patiently, everyday.

There is more to your getting a Juris Doctor degree (and eventually your signing the rolls of attorney because all of you will pass the bar examination).  Recapture the other dimensions of your identity which you--consciously or unconsciously put on hold while you were at the law school.  Become the artist, the poet, the athlete, the husband, the activist, the community organizer, the priest, the nun or simply the loving person that you have always wanted to be.  Carry your law degree as a tool, not an overarching identity.  Desire that justice, humanity will be closer to what our laws are.

But, because we are human beings, there should be time to celebrate our tentative victories.  Celebrate your JD.  

I take pride in having been part of your lives.   And I believe that I speak on behalf of the faculty of law when I say this.  It has not always been a comfortable experience, but I hope that it was a meaningful one.  Certainly, for us in the faculty and our administrative staff, we matured and are different persons than we were four years ago when you entered Malcolm Hall.

To the parents and your significant others: behold these graduates.  I present them to you, many of them have surpassed us when we were their age, many of them will surpass us still to do better things.  I testify that they have--many times over--heroically met our expectations.  They have sacrificed much to be where they sit right now.  We are witness to the fruits of your support. They do deserve the title Juris Doctor. More so, this time next year, lawyer of the Republic of the Philippines.  

May they however be haunted by our mistakes and inspired by their ability to be more humane and more creative.  In a few years time, they will become our leaders.

Thank you for listening.