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China’s retaliation?

Former Secretary Raffy Alunan warned on ANC this week that China will retaliate in response to our filing of our Memorial in our  pending arbitration against China under the UN Convention on the Law of the Sea (UNCLOS). Citing the earlier move of China in banning the entry of our bananas into their territory, Alunan warned that China’ s retaliation could be in the form of further economic sanctions and worse, even sabotage. Referring to the possibility of the latter, Alunan warned that the Chinese could resort to sabotage of our power grid, since the National Power Grid Corporation is 40% owned by a Chinese company. He also warned about possible cyber attacks against our networks.  A pro-China advocate has dismissed Alunan’s warnings as unlikely. I prefer not to dismiss the warnings as in fact; history has shown that nothing is impossible in the field of international relations. Who would have thought that the United States would persist in its illegal occupation of Iraq? Neither did we expect that Russia would be so brazen as to annex Crimea?   Simply put, we have to prepare for China’s retaliations, whatever form it may take.

Alunan was actually warning about two things: one, China’s unwavering claim to the nine-dash lines; which will persist whether or not we continue with our arbitration. Second, the fact that China has not been shy in telling the world that it takes offense to the fact that it was sued before an international tribunal. Judge Xue Henquin explained in the Biennial Conference of the Asian Society of International Law that this was a “cultural” trait of the Chinese. They just don’t like to be sued.

Alunan’s warnings therefore should be qualified. Insofar as the Chinese claim to the West Philippine Sea is concerned, China will not only resort to sanctions and sabotage in order to defend its claim. In fact, its published defense policy is to develop sea-denial capability in the West Philippines Sea from 2010 to 2020. This means that it will not have second thoughts in ousting countries, even through the illegal use of force, that it views as “intruders” in the disputed islands and shoals in the Spratlys and Panatag. On the other hand, given China’s antipathy towards the arbitration, which, if the Tribunal assumes jurisdiction will surely result in judgment against it, China will apply, all sorts of pressure for the country to withdraw the same. This is where the sanctions and sabotage may come to play, as warned by Alunan.

In any case, Alunan’s warning about the sabotage on our power grid deserves serious attention. With allegations of price fixing now hounding our power producers, Congress should seriously re-examine its earlier view that power generation and distribution are not in the nature of public convenience. Had they been as such as in fact they are, the state could have exercised the necessary regulation that could have prevented these allegations of price fixing today. Moreover, power generation and distribution are franchises. They are for the public with the latter as end users. Ergo, both businesses are hence vested with the public interest and hence, their entitlement to engage in these kind of business should be in the nature of a privilege and not a right. The consequence of this would be an outright revocation of their franchise if the allegations of price fixing could be proven.

In any case, while I fully concur with Alunan that the Philippines should be weary of China’s retaliation, perhaps we should still not be too alarmed on the consequences of the filing of our memorial due on the 30th of this month.

I think what China objects to is the initiation of the arbitral proceedings itself and not the memorial per se. In fact the Chinese, through Judge Xue, considers the arbitration as a “substantive breach” of the code of conduct agreed upon by China and ASEAN. What baffles me on this point is how China can complaint that a peaceful resort to peaceful arbitration can be a breach of a treaty obligation while at the same time, resorting to the firing of water canons at unarmed Filipino subsistence fishermen as being in compliance with the said code of conduct.

One final point. Alunan said that the barring of Philippine bananas was because of the initiation of the arbitration proceedings. This is not the case. The resort to non-0-trade barriers against our bananas was an offshoot of our navy boat arresting Chinese fishermen in Panatag. Fortunately, while China can resort to this anew, it will not be as easy as it was in the past. This is because meanwhile, ASEAN and China entered into a bilateral investment agreement that grants protection to both our investments and export products. This means that it will be expensive for China to bar entry of any of our export commodities henceforth. This courtesy of the ASEAN Investment treaty with China.

(as published in the column of Atty. Harry L. Roque Jr. in Manila Standard Today, 27 March 2014)


Our obsession with Bar topnotchers

UnknownUnknown-1The UP College of Law topped anew the 2014 Bar examinations with my student, Nielsen Pangan, placing first. His schoolmate, Mark Oyales, bagged the second place. Three other students from UP Law landed in the top 10: Eden Mopia was fourth, Michael Tiu was eighth and Cyril Arnesto was tenth.

This was the first time for UP Law to top the Bar Examinations since Joanne de Venecia placed first in 2005. In 2011, no one from UP placed in the top 10 of the Bar.

I am, of course, together with the entire UP community, ecstatic about the results. This is not just because I am a product and a professor of UP Law. It is more because every UP graduate’s success is a toast to the poor and the middle class in this country. The UP dream is the stuff that is written about in telenovelas: poor children dreaming of climbing the economic ladder through a world-class education.

That’s why more people celebrate when UP students top not just the Bar -but the other Board exams as well. While private school graduates should also be honored when they reach similar success, the joy of topping the exams for a rich kid is simply not the same when poor or middle class students achieve the same fete. This explains why when the likes of Nielsen, the son of a Meralco engineer and a housewife; and Mark, son of a security employee and a bakery worker from Tacloban, top the bar, the entire nation celebrates with them. This is because their success is the success of every middle-class and poor family in this country. Rich people, when they achieve the same feat, celebrate only amongst themselves in their gated enclaves. The poor and the middle class, on the other hand, live their dreams through students like Pangan and Oyales. This is the UP fairy tale.

Be that as it may, this country really ought to reconsider the prestige and importance that it bestows on the Bar top notchers. Having been a Bar examiner in 2010, I have probably earned the right to say that given the very limited time given to Bar examiners to check almost 6,000 booklets of essay questions, the Bar exams could not be a reliable measure of one’s preparedness to be a member of the Bar. Moreover, one’s success as a lawyer is not measured by how well one does in the Bar examinations. Here, it’s the successful barristers’ future conduct as lawyers that will determine his or her greatness as a lawyer. Case in point is that of the former dictator Ferdinand Marcos, who despite having been a bar top notcher, earned notoriety for infringing on rights protected by the Bill of Rights. Here you have an instance when a topnotcher earned notoriety because of what he did with his title later on in his life. If the bar exam results were indeed the ultimate measure of one’s preparedness to be a lawyer, then the remains of Marcos should today be at the Libingan ng mga Bayani and not in an air-conditioned crypt awaiting a funeral.

But an even more fundamental consideration is: what kind of lawyers are we producing with the obsession we have with topping the Bar examinations? Responding to the debacle of 2011 when no student from UP landed in the top 10 of the Bar, UP Law has since required its students to enroll in bar review subjects as electives instead of those that will enrich them as lawyers in an increasingly internationalized profession. For instance, I no longer teach electives on International Humanitarian Law and UNCLOS that have enabled at least two of our graduates, Raymond Sandoval and Suzette Suarez, to land appointments in the International Criminal Court and the International Tribunal on the Law of the Sea, respectively. Likewise, we have done away with the elective on International Trade Law that enabled the likes of Dr. Diane Desierto and Ana Ramos to land careers as a tenured faculty teaching trade law at the University of Hawaii and the World Trade Organization, respectively.  Likewise, we have done away with the elective on project financing which has proven to be the country’s monopoly in terms of cross border legal practice.

Worse, this giant step backward—just to satisfy the country’s obsession with Bar top notchers—is still happening when we only have a year before the borderless Asean Economic Community comes into being in 2015. This will usher in not only free cross border trade in goods, but also in services, including the practice of professions.

There is hence an apparent contradiction with UP Law’s decision to revert to being a bar review institute with the decision of the University itself, for instance, to change its academic calendar to begin in August, to be in synch with the rest of Asean. Simply put, we are retreating to the Jurassic past when we seek to produce Bar topnotchers instead of preparing grand lawyers for an increasingly interdependent world.

But what the heck: the public wants the topnotchers and for now, UP played well to the gallery. I hope though that for the country’s sake, this obsession will soon be a thing of the past. For otherwise, while we continue to heap praises on the topnotchers of an archaic exam, the country, meanwhile, may be left behind in the race for modernity.


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