Bar exam topper: Gay and proud of it

First published by the Philippine Daily Inquirer / 09:10 AM May 12, 2019

Number one bar exam topnotcher Sean James Borja of Ateneo de Manila University (AdMU) frankly admitted he is gay, but debunked “the myth that members of the LGBT (lesbian, gay, bisexual and transgender) are meant only for entertainment.”

He was bullied, discriminated against and deprived of opportunities just because he was thought to be “not good enough,” just because he “was different.”

Well, in the Foundation for Liberty and Prosperity (FLP), we did not treat him differently. Like all the other legal scholarship applicants, we gave him the same opportunity without any discrimination as to gender, race, color, religious belief, economic status or political affiliation.

All we required from him were basically the same as from all others: (1) academic excellence plus leadership qualities, and (2) ability and willingness to internalize and espouse the philosophy of liberty and prosperity under the rule of law. Outstanding in these requirements, he was chosen along with 20 others when our scholarship program — funded by the Tan Yan Kee Foundation (TYKF) at P200,000 per scholar per year — began in 2016.

And we were proven right, because since then, he has excelled in everything expected of him, like topping his class at Ateneo, winning in moot courts here and abroad, and acing the bar exam. Indeed, he is excellent, diligent, dignified and gay, and we’re mighty proud of him!

For topping the Supreme Court tests, we are awarding him an additional cash of P200,000 plus another P25,000 for being the valedictorian at Ateneo.

Aside from him, every one in the first batch of FLP scholars who graduated in 2018 passed the exam. One of them, Katrina Monica Gaw, also of AdMU, copped fifth place and will receive an extra P100,000. Others in the batch are: Karina Mae Badua (UST), Ervin Fredrick Dy (UP, 17th place), Rexlyn Anne Evora (PUP), Summerson Macasarte (St. Thomas More), Nigel Carmelo Reago (La Salle), Jose Angelo Tiglao (La Salle), Althea Vergara (USC) and Vanessa Gloria Vergara (AdMU).

For topping their respective classes, Evora, Reago and Macasarte will also get P25,000 like Borja. Another FLP scholar during his junior year, Jose Noel Hilario (UST), will also get P25,000 for graduating cum laude during his senior year.

Currently, the FLP scholars (also at P200,000/year) are fourth year law students Leo Francis Abot (AdMU), John Anthony Almerino (USC), Micah Celine Carpio (La Salle), Alvin Paulo Cortez (AdMU), Mikael Gabrielle Ilao (U of Cordilleras), Alimar Mohammad Malabad (San Beda), Kenneth Glenn Manuel (UST), King Anthony Perez (U of Cebu), Jun Dexter Rojas (PUP) and Ma. Vida Malaya Villarico (PUP).

Our third year scholars are Banoar Abratique (U of Cordilleras), Pamela Camille Barredo (FEU), Angelette Bulacan (FEU), Stephanie Mae Domingo (U of Cordilleras), Maria Carissa Guinto (San Beda), Patrick Angelo Gutierrez (FEU), Mayumi Matsumura (AdMU), Juralyn Lilian Obra (U of Cordilleras) Carmella Gaye Perez (USC) and Edrea Jean Ramirez (UST).

The board of judges was composed of Justice Antonio T. Carpio (chair), Dr. Edilberto C. de Jesus, Dean Joan S. Largo, TYKF executive Elizabeth T. Alba and Prof. Tanya Karina A. Lat, members.

Aside from the scholarship program, FLP also sponsors a Dissertation Writing Contest funded by the Ayala Corp. Chosen winners a few days ago were: Josiah David Quising (FEU), first prize—P300,000; Diana Lou Boado (Lyceum), second prize— P200,000; and Charles De Belen (San Beda), Beverly Lumbera (Lumsa U, Rome, Italy) and Clarissa Mae Sawali (FEU), three third prizes at P100,000 each. Five finalists — Gwendolyn Ann Banaria (FEU), Jose Angelo Blay (La Salle, Lipa), Arvin Paolo Cortez (AdMU), Justin Ian Manjares (AdMU) and Marlouize Villanueva (USC) — will receive P20,000 each.

The dissertation board of judges was composed of Justice Estela M. Perlas-Bernabe (chair), retired Justice Angelina Sandoval-Gutierrez, Philippine Association of Law Schools president Joan S. Largo, Ayala Corp. general counsel Solomon M. Hermosura and lawyer Joel Emerson J. Gregorio, members.

All the prize recipients will be honored at an FLP convocation at the AdMU auditorium in Rockwell, Makati, 5 p.m., May 18, 2019.

Human rights, adoption and surrogacy

First published by the Philippine Daily Inquirer / 09:08 AM April 21, 2019

Riveting and comprehensive was the lecture on human rights, adoption and surrogacy of professor Elizabeth A. Pangalangan, one of the 15 holders of the Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity, held recently at UP Diliman.

Her scholarly, eloquently delivered thesis focused on this: Adoption and surrogacy are, at the outset, parent-centric and are usually contracted by, and for the benefit of, the adopters and the commissioning parents to satisfy their craving for parenthood and family love. Eventually and doctrinally, however, courts lean in favor of the best interest and overarching human rights of the children.

Human rights and adoption have been dissected in many ways by scholars and jurisprudence. However, surrogacy is quite novel. Thus, in my limited space today, I will focus on surrogacy. (In a few days, Pangalangan’s extemporaneous and PowerPoint-assisted lecture will be posted in http://www.libpros.com after she finishes transcribing and editing it.)

Surrogacy is an arrangement whereby a woman (called surrogate) agrees to bear a child whom she intends to transfer for custody and care to another or others (the commissioning couple or commissioning husband/wife) upon the child’s birth.

There are two general types: (1) traditional—the surrogate is inseminated by the commissioning father’s sperms, either naturally or via in vitro fertilization (or IVF). Here the surrogate, as the egg donor, has a genetic link to the child; and (2) gestational — the surrogate carries the embryo created by the union of the egg and the sperm of the commissioning couple. Example: “The delectable twins of Mar and Korina” (Opinion, 3/10/19).

With surrogacy, a child can have two fathers: (1) the biological and (2) the commissioning. But he/she can have three mothers: (1) the genetic or biological mother (the source of the egg), (2) the commissioning mother and (3) the surrogate who bears and gives birth to the child.

According to Article 164 of the Family Code, “Children conceived as a result of artificial insemination of the wife with the sperms of the husband or that of a donor or both are…  legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child.” No other Philippine law governs artificial insemination or surrogacy.

That surrogacy services are now offered in several local hospitals and that many Filipinos have gone abroad to avail of it should be enough to impel Congress to legislate on it, consistent with our Constitution and family values.

Professor Pangalangan offers four possible legislative options: (1) prohibit all forms of surrogacy; (2) prohibit commercial surrogacy but allow altruistic ones, that is, prohibit payment to the surrogate because trading in human flesh is abhorrent but allow surrogacy when no financial reward is made; (3) allow but regulate commercial surrogacy; and (4) allow all kinds of surrogacy arrangements.

Our Supreme Court has not issued any decision involving surrogacy. But Pangalangan discussed many foreign decisions, the most interesting being Yamada vs Union of India (Sept. 29, 2008). Here, Baby Boy Manji was born in India from the egg of an Indian surrogate and the sperm of a Japanese husband.

Unfortunately, prior to his birth, the commissioning Japanese couple separated. Saying she had no genetic link to the child, the ex-wife refused to take him. Neither did the surrogate want to keep the baby, insisting she bore him only because of the surrogacy contract.

Mercifully, the Japanese husband claimed the child, but could not bring him to Japan because that country does not recognize surrogacy. Thus, it refused to give him a passport. The husband’s petition to adopt the child was denied, because India bans single-parent adoption.

On humanitarian grounds, the Supreme Court of India eventually allowed the child to leave India with a certification (not passport), and Japan issued him a tourist visa. I think this case illustrates the complications that legislation must anticipate to solve similar problems that could involve Filipinos.

Law scholarships with a difference

First published by the Philippine Daily Inquirer / 05:08 AM February 17, 2019

Usually, scholarships are intended for, and given to, students who have little or no financial resources to pursue their studies.

Unique, however, are the full scholarships (P200,000 per year covering tuition, books and monthly stipends) granted by the Foundation for Liberty and Prosperity (FLP) and funded by the Tan Yan Kee Foundation (TYKF). They are given on the basis of pure merit; paucity of funds will be considered only in case of equality in excellence.

They are granted to outstanding law students who agree to espouse, promote and fulfill in their professional life as future lawyers the philosophy of liberty and prosperity under the rule of law.

Most lawyers are trained to master and defend political freedoms, like the rights to due process, equal protection, free speech, free assembly to redress grievances, be presumed innocent, etc. This training is, of course, not objectionable per se.

However, the FLP believes that equal attention should be accorded (1) the economic and social freedoms, like the right to be free of hunger and want, to pursue entrepreneurship and innovation, and to conquer poverty through the rule of law; and (2) the corollary responsibility to share prosperity with the needy and to distribute equitably the fruits of labor and capital.

Indeed, freedom and food, justice and jobs, ethics and economics, nay, liberty and prosperity are equally important; one is useless without the other. This philosophy upholds the singular truth that the best way to conquer poverty, to create wealth and to share prosperity is to unleash the entrepreneurial genius of people by granting them the freedom and the tools to help themselves and society.

On their demonstrated merit and commitment to pursue this truth, the law scholars were chosen, after a competitive process and personal interviews, by the FLP board of judges chaired by Justice Antonio T. Carpio, with former education secretary Edilberto C. de Jesus, Philippine Association of Law Schools president Joan S. Largo, TYKF executive Elizabeth T. Alba and Prof. Tanya Karina Lat as members. They are:

Third year students: Banoar Abratique (U of Cordilleras), Pamela Camille Barredo (FEU), Angelette Bulacan (FEU), Stephanie May Domingo (U of Cordilleras), Maria Carissa Guinto (San Beda U), Patrick Angelo Gutierrez (FEU), Mayumi Matsumura (Ateneo de Manila), Juralyn Lilian Obra (U of Cordilleras), Carmella Gaye Perez (U of San Carlos), and Edrea Jean Ramirez (UST).

Fourth year: Leo Francis Abot (Ateneo de Manila), John Anthony Almerino (U of San Carlos), Arvin Paolo Cortez (Ateneo de Manila), Mikael Gabrielle Ilao (U of Cordilleras), Kenneth Glenn Manuel (UST), King Anthony Perez (U of Cebu), Jun Dexter Rojas (PUP), Ma. Vida Malaya Villarico (PUP), Micah Celine Carpio (De La Salle U) and Alimar Mohammad Malabad (San Beda U).

Extra cash prizes are given those who graduate with Latin honors.

Fifteen past FLP scholars took the last bar examinations: Karina Mae Badua (UST), Sean James Borja (Ateneo de Manila), Ervin Fredrick Dy (UP), Rexlyn Anne Evora (PUP), Kevin Ken Ganchero (FEU), Katrina Monica Gaw (Ateneo de Manila), Jose Noel Hilario (UST), Summerson Macasarte (St. Thomas More), Violeta Najarro (San Beda-Alabang), Ma. Janine Pedernal (UST), Nigel Carmelo Reago (De La Salle U), Tess Marie Tan (U of San Carlos), Jose Angelo Tiglao (De La Salle U), Althea Vergara (U of San Carlos) and Vanessa Gloria Vergara (Ateneo de Manila).

The topnotchers among them will receive P200,000 for the first placer and P100,000 each for the second to the tenth placers. The bar results are expected on or about May 3.

The TYKF board of trustees is composed of Dr. Lucio C. Tan (chair), Harry C. Tan (vice chair), Joaquin Bernas, Frank Chan, Shirley Chua, Lawrence Chew, Emil Q. Javier, Artemio V. Panganiban, Marixi R. Prieto, Carmen Tan, Tan Eng Chan, Tan Hui Bin, Mariano Tanenglian, Amando M. Tetangco Jr. and Cesar E. A. Virata.

On the other hand, the FLP board of trustees consists of Panganiban (chair), De Jesus, Evelyn T. Dumdum, Rebecca G. Felix, Joel Emerson J. Gregorio, Angelina Sandoval-Gutierrez, Elenita C. Panganiban, Tanya Karina Lat and Maria Elena P. S. Yaptangco.

Forums in San Carlos and San Beda

First published by the Philippine Daily Inquirer / 05:08 AM October 21, 2018

Last Wednesday, I spoke in two legal forums. The first was at the top-notch School of Law and Governance of the University of San Carlos in Cebu, where I seconded Dean Joan S. Largo’s pivotal lecture on how our economic rights trumpeted by the 1987 Constitution can be enforced by the judiciary.

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Having just returned from a “learning visit on clinical education” in the United States, the young and energetic dean, one of the 13 holders of the “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity,” began with a contrast of “how the poor, in a country of the rich, grappled with the notion of justice. One thing is certain, the road to justice is paved by the access to justice of the powerless.”

She then compared this situation with another glaring contrast, this time in our country: Despite the repeated invocations by its framers that our 1987 Charter is “pro-poor,” that social justice is the “heart of this Constitution,” and that “[t]alk of people’s freedom and legal equality would be empty as long as they continue to live in destitution and misery,” our economic rights have remained mere grandiose rhetoric to this day.

More than three decades after the Constitution took effect, our people still wallow in grinding poverty. This sad reality is caused in part by the failure of Congress to pass enabling legislation to substantiate and fulfill these benevolent invocations.

The solution lies in urging our Supreme Court to be as “bold and daring” as the highest courts in South Africa, Colombia and Argentina “in enforcing economic rights not only in the laws but also in judicial edicts” like the writ of prosperity.

After all, “[n]owhere can we find a constitution so humane, and a court so powerful than in the Philippines, making a writ of prosperity truly feasible if the Philippine judiciary wants it.”

To claims that the reticence in enforcing economic rights is due to the utter lack of resources, Largo gamely retorted, “Indeed, it is in countries with the scarcest of resources that the writ of prosperity lends itself to greatest relevance and importance… When a court issues the writ… it does no more than prod the elected branches… to comply with the legal standards and mandates embodied in the Constitution.”

Readers may access Largo’s lecture in full at http://www.libpros.com.

On my part as chair of the Foundation for Liberty and Prosperity, I asked Dean Largo to seek the help of her colleagues in the Philippine Association of Law Schools (PALS), which she heads, to use the “rights-conferring declarations” of the Constitution to determine which of the many economic rights can be the subject of judicial enforcement sans legislation.

I also urged her and her PALS colleagues to use the rule of law to unleash the entrepreneurial ingenuity of our people. What our nation needs is a government that affords opportunities for education instead of habitual mendicancy, fosters free competition instead of suffocating regulations, and rewards talent and hard work instead of sycophancy and connection. My talk can be accessed at the same website.

Hosted by the San Beda Law Alumni Association, the second forum was a testimonial dinner for recently promoted Bedans, including Supreme Court Justices Jose C. Reyes Jr. and Ramon Paul L. Hernando, Ombudsman Samuel R. Martires, Sandiganbayan Justices Maryann C. Manalac and Kevin Narce B. Vivero, Securities and Exchange Commission Chair Emilio B. Aquino, Deputy Commissioner Arnel S. Guballa of the Bureau of Internal Revenue and several others.

My extemporaneous message was simple: Bedans reached their lofty offices with the expectation that they will outperform the graduates of another university who, in the past, cornered most of these exalted posts. While there may be bad eggs in the San Beda basket, the vast majority are good and selfless.

I challenged them to prove by their deeds, more than by their words, that their immersion in “Ora et Labora” will result in prudent and graft-free governance. And, yes, amid their roars and cheers, I reminded them that their fellow Red Lions and harshest critics, Sen. Leila de Lima and former Sen. Rene A. V. Saguisag, are ready to pounce on their lapses and missteps.

Equality of rights to liberty and prosperity

First published by the Philippine Daily Inquirer / 05:12 AM April 01, 2018

As a way of commemorating Christian resurrection and liberation from earthly afflictions today, Easter Sunday, let me turn to the award-winning treatise of Raphael Lorenzo Pangalangan pleading for equal legal treatment of the rights to prosperity with those of liberty.

Scholarly treatise. Written in elegant, authoritative and scholarly legalese, the 47-page treatise, fortified by 248 footnotes, won the first place (P300,000 cash plus a plaque of recognition) in the first “Dissertation Writing Contest” sponsored by the Foundation for Liberty and Prosperity (FLP), with funding from Ayala Corp. and the cooperation of the Philippine Association of Law Schools. It may be accessed at www.libpros.com but I will try to simplify it.

To begin with, FLP champions the philosophy of liberty and prosperity under the rule of law. It believes that these twin beacons must always go together; one is useless without the other. They must be equally cherished and protected as essentials of life and wellbeing. Indeed, the choice is no longer “Give me liberty or give me death”; it is enjoying both liberty and life in equal measure.

Pangalangan observed, however, that traditional legal concepts prioritize liberty over prosperity. While fundamental liberties are recognized as self-executing rights enforceable by judicial action without need of further legislation, prosperity is appreciated merely as an aspiration rather than as a right; it requires congressional acts before it could find sanctuary in the courts.

He wrote, “The intent of the drafters of the 1987 Constitution is clear: social and economic rights — as embodied in the Declaration of Principles and State Policies, as well as in the Social Justice provisions of the basic law — are not one of the traditional rights like those enshrined in the Bill of Rights, and are mere commands to the state” needing action by Congress.

Dichotomy of rights. Consequently, our Supreme Court (echoing that of the United States) adheres to the “state action doctrine” which generally reserves the application of the Bill of Rights to the public, but not to the private, sphere. Only the state — to the exclusion of private entities and individuals — is obligated to observe and can be held liable for violating basic rights.

This dichotomy is justified by the traditional theory that civil and political liberties (like freedom from fear, freedom of speech, of assembly, of religion, and freedom to participate in elections and in the formation of public opinion), are characterized as natural rights while social and economic rights — the anchors of prosperity — (like freedom from want, from afflictions, and the free pursuit of economic activities, competition and vocations), have been shunned as mere inventions requiring affirmative state action.

The former are deemed “first generation rights” while the latter, “second generation rights,” are mere inventions of political will rather than essentials sourced from our very humanity.

Equality of rights. However, citing a formidable bibliography of cases both here and abroad, authoritative publications, journal articles and lectures, and over 20 international covenants, including seven core human rights treaties that the Philippines ratified and constitutionally adopted as part of the law of the land, Pangalangan passionately posits that prosperity rights, like civil and political rights, should now be deemed self-executing rights enforceable by the courts without need of enabling legislation.

Moreover, repeatedly quoting from Tañada vs Angara (May 2, 1997) and my separate opinion in Serrano vs NLRC (Jan. 27, 2000), he vigorously argues that with the “advent of liberalization, deregulation and privatization … even private individuals [are] sources of abuses and threats to human rights and liberties.” Thus, they should be accountable in the observance of rights to liberty and prosperity.

He concludes: “Liberty and prosperity forward common sense in the pursuit of uncommon justice. [They recognize] how civil and political rights are tightly intertwined with social and economic relations — how freedom from fear necessitates freedom from want.”