Message for the First Year Law Class
June 3, 2010
Draft

[Opening remarks during the Orientation Program]

If the statistics on the average life expectancy in our country is right, you have about fifty more years to live. Well, to be more accurate, the males among the audience have about forty nine (49), the females fifty one (51). Of course, depending on what you do to your bodies, mind and spirit, it can be earlier or later than these figures. If you are older than twenty, the statistical probability is that you have a lot less more in years left in you.

Of this average of fifty more years, you have gambled on spending four or five of your prime years here in the UP College of Law. Hopefully, and with a lot depending on how you make use of the resources that we have made available for you, it will be a wise investment. For almost half of you (we have a normal attrition rate of about fifty percent), you may discover that it would be an interesting experience but that there could have been other opportunities that you could have explored.

Reflecting on our deaths tend to put a powerful perspective on the things that we do. The sooner we realize that we are not immortal the more urgent will be our desire to to make the next moment matter. Acknowledging that we will not physically exist after about three or four generations should push us to those important moments in our lives when we have to make decisions about how we hope to matter--how we hope to be able to make a difference.

I can only hope, that the reason that you are sitting here in the audience today is because you have done that reflection and therefore are ready to take on the difficulties of the life of a law student.

But, today, I would like to add more to your reflection and invite you to think about the deaths of others.

In your country, the infant mortality is 21 out of every 1000 live births. Twenty one infants out of every 1000 die for various causes at birth. Many of these deaths are preventable and related to poor sanitation or poverty. Infants die without having the opportunity to go through the dilemmas that you have gone through. That number is about half of a first year block in the UP College of Law. Perhaps within that 21 could have been a national artist or a spectacular politician. Perhaps, most of them would have been able to at least finish high school and would have had the opportunity to be able to assist her/his family have at least three affordable meals a day.

The statistic is worse for maternal mortality. My sources say that there are about 170 mothers that die for every 1000 that give birth. Having had the privilege of witnessing the birth of a daughter, I know that child birth can be a very safe experience for the mother. I am also certain that the structure of our health services is such that those who may not have the financial resources are the most vulnerable to maternal mortality. The quality of our health services is largely a function of how our government is set up, the economic incentives embedded in our laws and the political economy that makes it difficult to see the reforms in law that we should expect as a decent society.

By the way, among the countries with the highest maternal mortality rates, we rank 48th.

But let me take you closer to your immediate environment.

Lung cancer kills 43 persons per day. This could be more except that some are able to afford the 100 to 150 thousand peso chemo treatment in charity wards.

The causes of lung cancer are many; but, scientists have made clear findings that smoking or any other form of tobacco use can definitely be one of its causes. In fact, smoking have other health and social costs. Estimates from the World Health Organization as reported by Newsbreak show that from 2002 to 2006 the health and social costs of smoking amounted to about 148.5 billion pesos. Government on the other hand only earned 23.26 billion from taxes and fees on cigarettes. The health and social costs of smoking is 17 times more than the government revenues earned from cigarettes.

My good friend from the School of Economics, Dr. Stella Alabastro Quimbo said it succinctly, in an interview:

“Smoking decreases the productivity of the Filipino workforce once they get afflicted with smoking-related diseases. If they die prematurely due to these diseases, it will cut their future income streams ... on top of this, the healthcare costs for these diseases are substantial. The aggregate cost of these diseases in terms of health care and productivity losses is the impact on the economy.”

The World Bank, in a recent study, agreed with the World Health Organization that one of the best ways to decrease the prevalence of smoking is to increase its price--ideally through increasing excise taxes on cigarettes. In New York, when I studied there for my LLM years ago, a cigarette pack costs about 25 to 30 dollars. Nobody could by it retail, i.e. by the stick. Here in the Philippines, the cost of a pack of cigarettes is relatively cheap. It is even more affordable if the nicotine addict buys it by the stick.

The accessibility of information regarding the pernicious effects of smoking tends to be regressive. That is, the higher your income bracket--the more access you have to reading materials, to the internet and to friends who are doctors--the better your chances of knowing that smoking is bad for you. No wonder, that smoking is a preventable cause of many diseases that is enjoyed more in the third world especially in rural or impoverished urban areas. Because of the setbacks of the tobacco industry, it is actively marketed more by cigarette manufacturers in the third world especially in rural and impoverished urban areas. Just compare the price of a stick of Champion with that of the best incarnation of Marlboro.

The next question therefore is why we have not increased excise taxes to about 66 or more percent ad valorem (almost the range recommended by the World Bank). Why is it that we do not ban the sale of tobacco retail? In fact, why not ban tobacco at all. Many of you will of course know the answer.

Law is created within a conjuncture of history. It’s content is often the result of a balance of political and economic power found within dominated forums, i.e. Congress and the Office of the President. This power can feed on a rationale promoted by a dominant culture or scripts fed by genealogies of ideas that harmonize with the interests of those in power.

Examine this specious argument: taxes cannot be increased too much for cigarettes because it will affect the poor tobacco farmer. Deconstructing that argument: the tobacco farmer is a farmer. S/he is as much affected by the pernicious effect of tobacco. And, as a farmer she or he can farm other agricultural products which may assist in our overall food security position. By the way, reducing tobacco use does not affect the farmer as much as it affects the transnational corporation that currently has about 90% market share in the Philippines. Reducing tobacco use will reduce the financial resources of a taipan who has had a great effect on the politics in our country--not to mention through his cases the jurisprudence on taxation and recently tort against a former Commissioner of the Bureau of Internal Revenue.

Examine another ingenuous argument: Tobacco smoking cannot be curbed because it helps reduce stress. Deconstructing this argument: stress is a part of life and how you deal with it can either be constructive or destructive. You can choose to do art or meditation or simply light up a cigarette which has no other beneficial health effect. And, by the way, the effects of smoking on your body increases your vulnerability to stress plus your second hand and third hand smoke endangers the loved ones for whom you try to tolerate your stress. Food servers in a smoking section of a restaurant are more prone to the effects of tobacco. Children of those who smoke are more prone to diseases as a result of second or third hand smoke. Third hand smoke means the chemicals that remain in your clothes, your body, your furnitures. These are the very same things that your baby will touch.

Parenthetically therefore for the smokers in our audience: know that when you light up your next cigarette you contribute more to maintaining a pernicious political and economic infrastructure and endanger those closest to you. Ironically, lighting up a cigarette is the most backward and anti-social thing that you can do.

[Please tell that to the incoming President of the Republic of the Philippines.]

There are many more of these arguments. But for so long as there are politically relevant producers and atomized consumers happy in their ignorance, laws will not change as meaningfully. Its implementation will have to be enticed with threats of litigation. And in all of these, there is a place for the competent lawyer with a social conscience.

There is more. What I have said of tobacco can also be said for alcohol or soft drinks or industrial products masquerading as food with large amounts of high fructose corn syrup. The patterns may even be the same for our excessive dependence on oil our use of useless mineral products such as gold and many others.

Dominated political institutions embed purpose and value in our laws. Our laws contribute to framing our social, cultural and individual lives. Prostitution--or the work of those who have nothing to sell except their ability to provide sex--is wrong, because it is illegal. Smoking--or the addictive habit that provides nothing except health and social costs--is alright because it is not illegal. We jail the woman prostitute. We reward the non-smoking taipan who establishes a very efficient network for distributing tobacco among the population.

Part of our role as lawyers is to be able to know enough to deconstruct law. But it should not end there. We should have the competence to be able to work the existing legal institutions to bring about the relevant reforms that can truly make our lives and the lives of others less fortunate than ourselves truly worthwhile, meaningful and happy. In this institution, we do not just mould you into being lawyers, we do not just introduce to you how “to think like a lawyer”, we do not just facilitate your experience as we teach law “in the grand manner.” The UP College of Law prepares you for social leadership.

You are our investment for the future of our own children. My hope is that we have chosen well.

Please do not let us down.

Comments

[Antonio Miguel M. Cardenas]

Diagnostic Essay on Constitutional Law I

Constitutions determine the organization and priorities of a nation and its government. Basically, it is the fundamental law of a state. Every legislation that shall be made will reflect what is stated in this document. However, constitutions differ in form and level of specificity. In form, constitutions may be codified or uncodified. A codified constitution is one that has a single document to refer to. It has a definite set of articles and sections unless revisions or amendments are made to increase or decrease their number. On the other hand, if it is uncondified, it is unwritten. There is no single document which one could refer to as the constitution. It shall be embedded in the many legislations and judicial decisions made in earlier times. Constitutions can also be rigid or flexible. This refers to the ease when it comes to revising the many provisions in them. In the case of the Philippines, it has a codified and relatively rigid constitution.

Among the many laws that will be passed, the constitution is very much unique. It becomes the basis for the creation of other laws. It is similar in the sense that much like other legislations, it is normative because it limits and defines the behaviour of citizens, the government and other entities that are under the state. It states what they can or cannot do. It is also similar because they rest on the idea that the people are the most sovereign of all. The constitution and the other laws shall put forward what is deemed beneficial to the populace.

Despite the many similarities, it is also undeniable that it has differences with other forms of legislations. For one, it is said to be all-encompassing and general. Everything is considered when drafting one. Every right and duties of a citizen, the roles of the government and its offices, the state policies on the different sectors of the society and many others are all included in the constitution. Also, it merely provides a framework from which other types of legislations shall be patterned. The specifics as interpreted in this document shall be reflected in laws and statutes that will be made by the legislative branch of the government. It serves as a guide to the different laws that are being enacted.

It is important that a constitution is deemed to be stable in order for it to be relevant. By stable it means that a constitution is able to efficiently guide the legislators as to their work. It should not be easily changed according to the whims of the president or the head of the government just to perpetuate his or her own personal interests. It should also have a more or less forward looking perspective. Given the expected longevity that the constitution will be applied, it is also important that it is able to govern the future. This is why constitutions are broad and general to accommodate many future circumstances that may arose.

The constitution is very fundamental for a state. Much effort must be exerted to make it relevant and important. It serves as the backbone for the operation of the whole state. But there are times when the constitution can be misinterpreted and disregarded to pursue what is beneficial to only a few individuals or groups. In cases when there is, in any form, a dictator who heads the whole state, the importance of the constitution can be somehow diminished. This document can be interpreted in many ways depending on who is interpreting. Since its scope is very broad and general, there are many ways on how one could get around without at least explicitly committing a grave offense of not honouring the constitution. In times when the dictator’s words become the law and the rule of law is not being recognized then the constitution can be considered unimportant and worthless. The sovereignty of the people can be undermined with someone who could get away with that.

The Philippine 1987 Constitution is relatively longer compared to those from other states. One of the reasons perhaps is to make it more responsive to the needs of the state and its people. As compared to its shorter counterparts, it is somehow more specific and direct. This leaves a much smaller room for multiple interpretations. This stems in part in the many experiences that the Philippines had over the years especially in its attempt towards democratization. Many obstacles arose which hindered the consolidation of democracy in the country. Learning from the many experiences of the country, the framers of the present constitution tried to respond to the many issues that the societies faces. The reduction of powers in the executive department is an indication of the attempt to reduce the possibility that what happened during the time of President Marcos may be repeated. Also, the present constitution contains provisions which talks about the different sectors of the society and their issues. Issues on women, health, education and others are all included in the text. Given all these, it can be said that it reflects the needs of the various societies in the country.

The constitution is a guide for the drafting of laws. The Congress being the legislative arm of the government and as representatives of the people should be sensitive to the needs of their constituency. Given that familiarity, they should work on creating laws which would respond to the ever-changing needs of the different sectors. But it should also be noted that it does not end in the creation of laws. The implementation of these statutes is also as important. The executive department is given the mandate to enforce them in order to maintain stability.

Constitutions should be looked into as a product of a certain time period. It is not devoid of any influence from many forces in the society. In studying constitutions, one must consider the environment from which it was drafted. In the case of the 1987 Philippine Constitution, the country at that time just came out from a phase of dictatorship. The new government made sure that necessary and appropriate safeguards are put in place in order to prevent the abuse of power and authority. This should guide academicians in studying such documents. There should be an understanding of the many provisions that are included. It is important that there is a holistic look at the constitution. Its study should include its form, substance, context of the time that it was being drafted and of course its relevance even in the future.

-Antonio Miguel M.Cardenas
2006-70515
Constitutional Law 1 (I-B)