BRL 0: To begin at the beginning

BRL: Bar Review Log – the series of journal entries I will be writing as I study for the 2017 bar exam. Call it catharsis or just the need to reflect and recollect – a respite from the laborious studying of the same subjects I have been studying for the past four years.

***

The other day, 26 June 2017, was my college graduation. The day before that was the university graduation. I had always been cautious about graduation ceremonies in law school. The reason is that it all seems so conditional. The bar exam would be in around four months and that decides in the end whether I will be a lawyer. Yet that cold shroud of indifference had not fully enveloped me then. As the speaker asked the graduates to turn around and face the audience, I caught the smiles of my parents and those were enough reasons for me to be happy.

After the whole ceremony, I could still feel the tenacious clutch of law school on my sleeves. Four years is quite some time and no one leaves Malcolm unscathed. Triumphs, defeats, betrayals, displays of loyalty, integrity, baseness — I have seen all that there. My four years was as much a study of the law as it was a study of human nature and its frailty. Several times I found myself mildly scandalized by the opinions and values I encountered in law school. I eventually realized that it pays to espouse the fashionable opinions of the day which usually consist in abolishing old ways for new ones. That being the case, it follows that references to classical education and philosophy often yielded to rehashed formulations from the activist authors of the day. Cicero, Madison, Plato, anyone?

The image of the desert just dawned on me — how the Israelites wandered around the desert for 40 years looking for the promised land. For me it was the other way around: I left the promised land and was now wandering the desert for 40 years in search of slavery. Ah bon, c’est la vie, n’est-ce pas?

And while I sit here typing a blog that no one will probably read. While I sit, haunted by the phantom of Malcolm Hall, I prepare to begin the long road to the 2017 bar. To begin.

Sierra Madre revisited.

Screenshot 2017-05-29 07.53.43.pngSierra madre biking trail

The sun was barely on the horizon when we started biking. It was a quarter to six in the morning and the skies still had a steel-gray look to them. As we pushed off, there came a sudden realization that I had legs. Days, weeks, and months of being cooped up in a room writing papers and reading books for law school had taken their toll. I had legs! And they were shivering in fear under the shadow of the sleepy mountain.

There is a downward slope shortly after the start. It is a good way to warm up the legs and feel the cool air, although I know that all good downhill slopes are going to be uphill slopes on the way back and every bit of pleasure those slopes give, they will take back in piercing pain tenfold. But when I take that first glide downhill, I am always reminded why I love biking — if only to feel the cool wind brush against my face and the occasional sight of the peaks of mountains as they protrude upwards from a cloudy sea. The cool air surprised me the most that time since it was May and the summer heat never had any mercy for bikers. I remembered that it rained the night before and wondered if that was the reason.

Soon enough we came to the first of many uphill slopes that stretched here and there for over 20 kilometers. My odometer fell out of my bike and was hanging over the side by its cable. I had not taken much care to fix it back on its spot, that goes for the rest of the bike too. The sacrifices we make to study law. But then I thought it was quite a blessing, since I did not even dare to imagine what 20 kilometers of uphill biking would be. Here at the beginning I was already in my lowest gear and my legs were screaming. This first slope was a straight one — I eyeballed 500 meters of steady asphalted road ascending eastwards. The sun was still hiding behind the mountains but I could see its faint, piercing glow every time I would glance upward to check how much more road was there waiting to grind me to dust. I realized it was better to keep my head down and count one…two..three…four…one…two…three…four while I watch my front tire miraculously circle around the road and feel my legs push inch by inch those little gears at the back of my bike. One…two…three…four and the next thing I know I am on top of the slope and looking at a steady glide to the next slope. This would go on for the rest of the biking route.

There were times when my legs gave way and I would stop by the nearest rock under a tree to catch my breath. The last time I went up this trail had been nearly three years ago and my body reminded me of that. As I sat down under the shade, the sound of crickets, as if it were the steady purr of the mountainside, enveloped me. The mountain always takes what I could give it, and sometimes it gives me more than what I could take. It has the same slopes, same angles, same curves, same bends — and the only thing that changed was me. The gentle hum of the forest was only interrupted by that unmistakable ridiculous roar of motorcycles as they zipped past me. Rrrrroooooooooommmmmm! they sounded as they went like a horde in single file. Rrrrrooooooooooommmmmm!

As the hours go: seven turned to eight and eight turned to nine. Desperation neared when the shadows started to recede. Biking under the noonday sun would have been suicide, and I was already spent. But as anti-climactic endings go, I hitched a ride on my friend’s car on the way back. And by hitched a ride I meant that he had to drive a bit to pick me up on the trail. Yes, the mountain won this time, but I will be back.

***

sierra

Curtain call

2017-05-08 16.23.25

In one lechon-perfumed room in a (literally) dusty hall in U.P., my last class in law school ended with applause and the customary photo shoot with the professor. We were talking about quasi-delicts and how motorists were always at fault when hitting pedestrians and how hitting them with our car’s side-mirror could be our own way of urbanized revenge. This was a four hour make-up class but it was all lectures now since time was of the essence. The room was filled with only my professor’s voice – trying to hack its way to the end of the syllabus and wrap up this review class. Outside, the waxing moon hung under a clear, night sky peppered with its many stars. The walk to the car took a minute or two since I was parked in the annex, which I dubbed as ‘The Swamp’ since during the rainy season it does turn into a veritable swamp. The way was dark, serene and peaceful — a perfect opportunity for me to be mugged.

On the walk back, I thought about Room 307 and how I had my first class there during my freshman year. Ugh freshman year, I thought, how stupid of me. I remember classes in Persons and Family Relations and Legal History and Constitutional Law 1 and how I had absolutely no clue what I was doing. Many times, time just went by in flashes, like broad strokes in some post-impressionist, modern art painting indistinguishable from vomit: exams here, recits there, a head hunched over some papers under a lamp, empty cups of coffee by the side, the tune of jazz in the background, a rosary by the book stand, a stack of books, notes scribbled on loose sheets scattered on the floor, a jacket hanging on the back of the seat, hands aching from shrinking text to fit between the lines in the codal, memories of 5s and of 1s, victories like making it in the OPF and staying there, defeats like Oblicon, deus ex machinas like Oblicon and the 2013 bar results, wondering if I should join a frat, deciding not to, dates with Urie and our movies and dinners and chats – my sanity in this endless sea of unreason.

In hindsight, I could do with more walks in the oval now that school is over and only a few exams stand between me and graduation and then the bar and then I shall fade and diminish and sail over the sea to Valinor.

***

To friends who left ahead of me:

Eager eyes with hopes we had
when we set our roots to the earth;
a seed in the wind, dust from the wings of moths.
To grow we must at nature’s call:
a journey’s end, four years to come;
with faith and hazard our only friends.
True: in the rains do branches wear their leaves
so ripe and green — the shades above our heads
from dangers yet unknown, unseen
What story could they tell of an inferno — those that
have yet to feel its heat? August passes and April
comes with its thirsty glare. Up we gaze to see
no clouds but the sky: blue and bright with our
death — and some fall: brown and crisp to the earth.
And here we remain to see another May
until for need of lumber the axes come
and take for them those of us as they say.

 

the last LD

Nothing in OLA is ever simple. Waking up at 530am and waiting a whole day for a 10-minute meeting to soak up insults is something I could never get used to. We wait all day and she expects us to thank her for allowing walk-ins. I was never too good at kissing ass and have always mistrusted flatterers, sycophants, and bootlickers. What has OLA brought me other than anxiety, countless hours wasted, and money thrown away on that false altar? And for what? Two letter P’s – since that’s what we all get on our transcript. Nothing else matters.

But one song played in my head as I left that infernal office:

Death of a roach

A roach crawled into my bathroom this morning. It measured about two inches and was wholly disgusting. I don’t know why the sight of roaches trigger those sensations. They just look damned awful. Luckily for me it wasn’t airborne. In fact it was dead still – which gave me ample time to briskly walk to the kitchen to find the Baygon. At last I found it. Armed with a full can of roachkiller spray, I made my way back into the fray. The roach was right where I left it – just at the corner of the shower door. I fixed the spout of the Baygon spray and configured it to fire in a stream (as opposed to a mist for mosquitoes). I squeezed the button and jet of white liquid shot out of the spray and covered the roach. It came alive. Despite being covered in Baygon spray, it managed to crawl to the wall behind a stack of drawers. This roach knew how to find cover. After moving the stack aside, I aimed the spray and squeezed a second time. Another jet of white death rained on the roach, which was now on its back. It was still alive. Its legs were still twitching until bit by bit the Baygon spray kicked in and the twitching gradually halted into a dead stillness.

It was a strange sensation to watch that roach die. I wondered what was in that Baygon spray to kill insects. After a quick google search, I found out that the spray actually had some neurotoxins that caused spasms on insects. Perhaps it was of the strength of the spasms that caused the roach to flip over on its back while it slowly attacked the roach’s neurosystem. Life to death in a few seconds. The whole episode struck me. To think that chemists in a lab created that neurotoxin that killed the roach. Remind me not to mess around with chemical engineers. (!)

Notes on the Anti-Discrimination Bill (HB3312)

Comments on HB3312

There are probably two ways how Pedro can win an argument. One way is for Pedro to convince the other on the merits of his position, with the ultimate end of producing a consensus. The other way is for Pedro to speak his position, and before Juan can start, say Juan is stupid, walk out of the room, and declare himself the winner. Some time ago I found a tweet that said that there is no rational reason to oppose an Anti-Discrimination Bill. Now, it must take a certain form of hubris for one to draw the limits of rationality so nonchalantly. When persons refuse to listen, expect obedience, and label all opposition as irrational, what we have is not a world of progress, but sheer dogmatism. This blog is merely an inquiry: if support for that Anti-Discrimination Bill is rational while dissent is irrational, it might be worth a minute to examine exactly how rational it is. Because some of us at least would like to hear the other side.

House Bill No. 3312 is an Anti-Discrimination Bill endorsed by 17 members of Congress. Essentially the Bill, in its current form, seeks to (1) define discrimination and impose (2) punitive and (3) preventive measures to combat it. The bill seeks to impose certain negative obligations (obligations not to do) on public and private individuals. In other words, it imposes an obligation on individuals not to discriminate on the basis of certain grounds provided for in the law and penalizes noncompliance with imprisonment (just two to six years or even six to twelve [!]) and/or a fine (just P100,000 to P250,000 to P500,000 [!]). Below are some notes on the bill.

The public and private distinction is gone

The explanatory note mentioned two State policies: (1) that the State values the dignity of every human person and guarantees the full respect for human rights and (2) the duty of the State to ensure the fundamental equality before the law of women and men. Equal protection clause is also invoked: “x x x nor shall any person be denied the equal protection of the laws.”

These state policies are generally guidelines that we, the people, impose on the State towards its citizens. The Bill of Rights is a document that guards individuals against the abuses of the State, hence it refers to prohibitions on the State’s legislative power with the words, “No law shall…”(e.g. the equal protection clause itself refers to “the laws”). That is the reason why mall security guards do not need a search warrant to look into someone’s bags or that evidence illegally seized by private individuals can be used in court, unlike those illegally seized by the police. Now, this bill is interesting in that it imposes that duty of the State on ordinary private individuals. In our liberal, democratic framework, there is a clear distinction between private individuals and public officers. Is this bill saying that private individuals are now public officers to carry out the policies of the State? If private persons can violate your right against unlawful searches and seizures, why then should private persons fall under this obligation?

Invoking provisions from the Bill of Rights against private individuals is not proper, unless of course we are willing to concede that private individuals perform sovereign functions (but wouldn’t that be fun?). The freedom to contract, for example, or the principle of delectus personae in forming partnerships, or any fiduciary relationship entails some form of discrimination based on a person’s qualities. A private individual is perfectly within his right to refuse to contract with another on the basis of good looks, body odor, or intelligence. A man may validly refuse to enter into a contract with another if he believes the latter is a scoundrel, or simply because he smells bad, is ugly, or is dumb as a rock. Generally, there is no obligation to enter into a contract with another; otherwise it would be almost akin to involuntary servitude.

Fundamental equality before the law of women and men?

It’s interesting that the explanatory note cited this State policy since it invokes the binary perspective on gender. So should we deny persons who are neither women nor men fundamental equality before the law? Perhaps that wasn’t what the framers were thinking. Note also the clause “before the law” and the distinction between public and private spheres.

* * *

Before anything else: is all discrimination unlawful? The word is thrown about so many times in the document and in media that it has veritably turned into a Pavlovian invocation of social justice to its proponents. The definition of discrimination in Section 3(b) lists definite grounds but then there’s that clause, “or other status” and there is also that clause in Section 5(k) that punishes “other analogous circumstances – any analogous acts which have the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise of the person’s human rights and fundamental freedoms are also prohibited.” (NOTE: This catch-all clause also happens to be punishable by imprisonment of 6-12 YEARS – the same penalty as homicide! – and/or a fine of P250,000 to P500,000) Does that mean that I can’t discriminate based on looks, smell, intelligence, or even the sound of one’s voice? It’s also worthwhile to consider two freedoms that give us the right to discriminate – freedom of association and freedom to contract. In partnerships, for example, the principle of delectus personae literally means selecting people and being associated with the people one chooses. How does this bill square with these other freedoms? It gets even more complicated when religious beliefs get in the picture.

At any rate, the bill defines discrimination as: “x x x any distinction, exclusion, restriction, or preference, or other differential treatment that is directly or indirectly based on ethnicity, race, religion or belief, sex, gender, sexual orientation, gender identity, gender expression, disability, HIV status, or other status, which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of political, civil, economic, social, and cultural rights. Discrimination, which also includes incitement to discriminate and harassment, is a result or a product of stigma.” (Sec. 3[b])

Note: “Stigma” is “the dynamic process of devaluation that significantly discredits an individual in the eyes of others. When stigma is acted upon, the result is discrimination.” (Sec. 3[m])

The provision distinguishes itself as one that is as broad as it is convoluted. At any rate, it has the following elements:

  1. First it speaks of an act, i.e. “any distinction, exclusion, restriction, or preference, or other differential treatment.” (DERP+ for brevity)
  2. Second, there is the first qualification of the act: “that is directly or indirectly based on ethnicity, race, religion or belief, sex, gender, sexual orientation, gender identity, gender expression, disability, HIV status, or other status.”
  3. Third, there is the second qualification: “which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of political, civil, economic, social, and cultural rights.”

There is also a rider: “Discrimination, which also includes incitement to discriminate and harassment, is a result or a product of stigma.”

First element: the act (DERP+)

The catch-all clause “or other differential treatment” requires elaboration, lest we penalize the sneezing in the general direction of a protected class. Without bringing in the qualifications, we can appreciate the sheer scope of the provision in that it virtually covers every human interaction based on another person’s different human traits.

I can’t help but wonder as to the kind of “person” being described as the subject of the equality visualized here. We befriend people mainly because of those characteristics we find desirable, and not merely because he is a fellow member of the human species. What is a person without his specific and identifiable traits? Every day we make choices among things and people – are those choices now going to be scrutinized by law? It appears that for equality to be fully realized, it would be preferable to treat everyone as if they were some kind of Cartesian ego of disembodied existence. What’s in a name, right?

Second element: to be directly or indirectly based on…

The act must be based on a specific ground. My first inclination would be to consider this as part of the element of intent. However, this interpretation may be unwarranted from a reading of the third part of the provision, which uses the word “or” to refer to “intent or effect.” This means that the actor need not even know he is discriminating against a “vulnerable community” to be considered a bigoted, intolerant bastard so long as the effect is manifested. Therefore, it would be a mistake to say that the basis of the act is solely intent.

Still, the bill uses the word, “based on.” So what does it mean? Who is to determine the basis of the act? We have three options: (1) the actor, (2) the victim, and (3) the courts. The actor is out of the picture since he could be violating the law even without intending to do so. If the victim determines the basis, the actor is placed entirely in the mercy of the victim (but who cares right? He’s the oppressor! He deserves to suffer!). Then we have the courts, which still have to formulate an elaborate test only after probably 10 years of appellate procedure.

Third element: with the intent or effect

The act must have the intent or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of political, civil, economic, social, and cultural rights. The most fascinating word in the clause is really the “or” since it forces us to conceptualize the act done (1) with intent but without the effect or an act done (2) without intent but with the effect. The provision then covers the actual bigots who do not effectively harm these “vulnerable communities” as well as those who are not actually bigoted but effectively act in a way that harms them.

The disjunctive use of “or” is bizarre to me since bigotry has always been defined as some form of prejudice (literally pre [in advance] judice [of judgment]) and which begins essentially in the mind. Here, won’t sending someone to possibly 12 years of jail time even without any malicious intent on his part create the same resentment that the bill is seeking to prevent? Six to twelve years is reclusion temporal which is the same penalty as homicide!

The rider: incitement to discrimination and harassment?

Is this effectively a content-based speech regulation?

***

All in all, the bill raises many questions that some of its proponents are all too willing to dismiss outright. If this is indeed considered as the “rational” position, then the proponents should have no problem in supplying the answers. Essentially, however, this bill is introducing this: that a vulnerable group can wield state power to coerce (yes I consider the threat of 12 years in prison as quite coercive) society at large, private individuals.

We see quite clearly the limits of tolerance in society today. The bill marches to the tune of tolerance, yet considers the intolerant as criminals who must be incarcerated. It is curious indeed how much intolerance can be licensed in the name of tolerance. The sheer breadth of application of the bill’s provisions should already put any law abiding citizen on guard and to label concern for such issue as irrational is not argument, but plain totalitarianism.

Worthiness?

Earlier this week in response to the proposed conferment of an honorary degree to the Du30, reactionaries deployed their deadliest weapon: the hashtag. By the time I got wind of #DuterteNotWorthy, he was already in the news declining the degree (how anticlimactic). My news feed was also flooded by a “I’m against conferring an honorary degree…etc.” template. Years ago this would have been a chain text (pass to five friends and your dream will come true!). Some cried he wasn’t worthy while others, after the customary tirade of ad hominems, cried that he was worthy. UP, after all, boasts the badge of “Honor and Excellence” on its lanyards and baller bands! This was sacrilege (in a secular sense of course). After fomenting rage at the comfort of their twitter feeds, the reactionaries then decided to put up an exhibition in the AS steps. Surely, if these reactionaries raged over bestowing honors on a dead dictator in the LNB, a living one was no exception! A few days after the incident, the rage, and the protests, what do we have? Business as usual and a messy news feed.

The whole event passed over Manila like rain clouds – stopping by to pour, and then shuffling off into the sunset. But what struck me was how it struck my fellow schoolmates’ sense of honor and excellence. Here’s a question I’ve been mulling over since my freshman year: is there even a place for excellence in our halls these days? And I mean it: excellence as virtue – the practice of virtues. Once upon a time, people argued over the question of “WHAT IS GOOD?”. Once upon a time, when Aristotle wrote that the supreme good as acting rationally in accordance with virtue, a.k.a. excellence, areté. Now ask anyone what areté is and they’ll likely say it’s just that building under construction in AdMU. Once upon a time people knew the weight of the word excellence, and now as Jack Nicholson said in A Few Good Men we “use it as a punchline!”

Uncontroversial: that’s the word I could use to describe the events of #DuterteNotWorthy. It’s not uncommon in law school to have a few students just slipping through the cracks here and there to graduate. Some who deserve to pass fail and some who deserve to fail pass. It almost feels like living in a Homeric epic where profs, the mythical gods, hold our lives and balance our fates on their crooked scales. Yet we must believe, if only to create a fiction, that those who get the degree worthy. Life, after all, has many fictions. For example, one of them is that we all know the law in Article 3 of the Civil Code, but if everyone knew the law we wouldn’t any lawyers now would we? We live in many fictions – and it’s helpful to tell what are fictional and what are not.