Tuesday, October 2, 2018
Monday, October 1, 2018
Seven Tales, Seven Principles: Red Cross Red Crescent Fundamental Principles
: Red Cross Red Crescent Fundamental Principles
Attorney advertising
See - https://lawyerist.com/attorney-advertising-rules-killing-us/?utm_content=77035666&utm_medium=social&utm_source=linkedin
"x x x.
The Attorney Advertising Rules Are Killing Us
By Megan Zavieh on August 16th, 2018
One of the most frequent excuses we hear for the glacial pace of innovation and problem-solving in the legal profession is that our ethical rules are too confining. Eric Cooperstein andMegan Zavieh propose to remove this last barrier and use this 4-part series to highlight the ethical rules that most desperately need updating. Excuses be damned, these changes would free lawyers to innovate, adapt, and‚ hopefully‚ bridge the gaping access-to-justice divide. This series focuses on updating the Rules of Professional Conduct that threaten the very future of law practice.
Introduction
There’s plenty of talk about the future of lawyering. Artificial intelligence, machine learning, chatbots, and countless other disruptive technologies promise to change the practice of law as we know it.
But most lawyers head to the office each morning and clock into the same law practice they’ve always known. Threats presented by the future of lawyering seem remote, at best. Most feel powerless to do anything about these changes anyway, so they keep plugging along.
It’s not likely these lawyers will power up their desktops one day and discover that their clients have magically disappeared. More likely, lawyers will slowly notice that their client base is shrinking and their revenues are falling. After further inquiry, they may find their prospective clients are being siphoned off by others‚ probably non-lawyers‚ and slowly realize they are ill-equipped to deal with the decline in business.
The challenge is to embrace innovation while simultaneously preserving the practice of law as a profession. Along the way, we may also tackle the access-to-justice gap. First, we need to reexamine the structures that stand between lawyers and innovation and talk about updating the Rules of Professional Conduct.
Laggards
A common complaint from lawyers who try to innovate their law practices is that some of our profession’s ethics rules create roadblocks and lag the real world. They’re right.
For example, other industries experimented with part-time and remote work arrangements decades before those practices infiltrated the law. Even then, when lawyers did eventually start experimenting with virtual law offices and remote employees, some ethics regulators went into hyperdrive trying to preserve the old ways. To this day, New York as a “bona fide office” requirement that requires New York-licensed lawyers to maintain a physical office in the state if they want to handle New York legal matters, even if the lawyers are dual-licensed and live in another jurisdiction.
"x x x.
The Attorney Advertising Rules Are Killing Us
By Megan Zavieh on August 16th, 2018
One of the most frequent excuses we hear for the glacial pace of innovation and problem-solving in the legal profession is that our ethical rules are too confining. Eric Cooperstein andMegan Zavieh propose to remove this last barrier and use this 4-part series to highlight the ethical rules that most desperately need updating. Excuses be damned, these changes would free lawyers to innovate, adapt, and‚ hopefully‚ bridge the gaping access-to-justice divide. This series focuses on updating the Rules of Professional Conduct that threaten the very future of law practice.
Introduction
There’s plenty of talk about the future of lawyering. Artificial intelligence, machine learning, chatbots, and countless other disruptive technologies promise to change the practice of law as we know it.
But most lawyers head to the office each morning and clock into the same law practice they’ve always known. Threats presented by the future of lawyering seem remote, at best. Most feel powerless to do anything about these changes anyway, so they keep plugging along.
It’s not likely these lawyers will power up their desktops one day and discover that their clients have magically disappeared. More likely, lawyers will slowly notice that their client base is shrinking and their revenues are falling. After further inquiry, they may find their prospective clients are being siphoned off by others‚ probably non-lawyers‚ and slowly realize they are ill-equipped to deal with the decline in business.
The challenge is to embrace innovation while simultaneously preserving the practice of law as a profession. Along the way, we may also tackle the access-to-justice gap. First, we need to reexamine the structures that stand between lawyers and innovation and talk about updating the Rules of Professional Conduct.
Laggards
A common complaint from lawyers who try to innovate their law practices is that some of our profession’s ethics rules create roadblocks and lag the real world. They’re right.
For example, other industries experimented with part-time and remote work arrangements decades before those practices infiltrated the law. Even then, when lawyers did eventually start experimenting with virtual law offices and remote employees, some ethics regulators went into hyperdrive trying to preserve the old ways. To this day, New York as a “bona fide office” requirement that requires New York-licensed lawyers to maintain a physical office in the state if they want to handle New York legal matters, even if the lawyers are dual-licensed and live in another jurisdiction.
Do We Need to Update the Rules of Professional Conduct?
We, as technology-forward, innovation-friendly ethics lawyers, have a generic sense that the profession is trying to “do” innovation better. For example, lawyers are arguably better today than ever at appropriating technology and culture change from other segments of the economy. But while law firm cultures may be evolving at a speedier clip, innovation is thwarted by some old ethics rules.
Whether this is a good thing or a bad one is subject to some debate. Traditionalists maintain that ethics rules protect the public and mitigate risk through torpor. The futurists counter that protectionism is only a virtue if the thing it shelters from change is worth preserving in the first instance.
There can be no debate, though, that the system traditionalists seek to protect exacerbated‚ or, more likely, caused‚ the access to justice gap and our plodding advances in the delivery of legal services.
Anti-solicitation and advertising regulations are designed to not only protect the public but safeguard the image of lawyers. Nevertheless…access to justice is undermined by the legal profession’s maintenances of ethics rules that keep the public uninformed of the importance and availability of legal services.
—Milan Markovic in Juking Access to Justice to Deregulate the Legal Market
It is time we update the Rules of Professional Conduct.
Among rules most ripe for change are those about marketing legal services to the public.
Attorney Advertising Rules Need Updating
There was a time, before 1977, when the rules prohibited lawyers from advertising their services. Legal advertising has come a long way in the last 40 years, but the rules still suffer from decades-long lag. These rules, written from their authors’ patriarchal perches, were guided by one (perceived) truth: the general public is woefully unsophisticated and paralyzingly unable to survive exposure to advertising. There is no evidence, however, that the public is as gullible as the rules and their drafters assume.
The public is not as gullible as the rules and their drafters assume.
ABA Model Rules 7.1 and 7.2 serve as the foundation for most states’ advertising rules. And, at that base level, it makes some sense. They say, among other things, that lawyers can’t make false or misleading advertisements or pay for recommendations and that every advertisement must include a name and contact details for at least one lawyer or law firm responsible for its content. But many states, viewing advertising as evil, have cobbled on onerous and sometimes bizarre restrictions.
For example, Florida requires lawyers to submit advertisements to the bar for review. You read that correctly: Florida has an office of lawyers devoted to pre-viewing and pre-approving (with a $150 fee per ad!) lawyer advertisements. Direct mail and e-mail, television and radio spots, yellow-pages ads (remember the yellow pages?), and internet advertising are all subject to review. Florida lawyers violate the rule if they have not submitted a proposed ad 20 days in advance. And they can only launch it if the bar approves. The Florida Bar publishes a 35-page book of advertising restrictions and guidelines.
Imagine an attorney becoming aware of a pressing issue for a potential client, like an impending foreclosure or potential fraud. She could not send a letter to the potential client without waiting at least 20 days for the bar to review it.
In New York, lawyers must have detailed descriptions of routine services for which they advertise a flat fee available to the public at the time they publish the fee. New York also has particular requirements for approving and retaining all advertisements and “computer-accessed communications.”
Texas, for its part, has severe and burdensome internet advertising rules, too.
Do these restrictions protect the public? It is hard to tell. At a minimum, no available empirical data supports these various limits. Worse, they very obviously hinder lawyers’ ability and willingness to risk reaching people most in need of their assistance. And its cynicism is apparent: lawyers left unbridled will mislead the public and otherwise violate the rules.
The inherent fallacy is that the public cannot sift through advertisements. And it is nonsense. Turn on any major sporting event and the name of the game and the field on which it is played likely begins with an ad (see, e.g., college football’s Cheribundi Tart Cherry Boca Raton Bowl). Ride any high rise elevator and ads amuse its captives on high definition screens. Social media ads are ubiquitous. Radio disc jockeys read sound bites in a manner that suggests that they had used the advertised services, and public restrooms feature TV screens with a constant deluge of ongoing ads.
Some (most?) states have created rules about advertising. But those states have lagged‚ often dramatically‚ in editing and updating them. What rules apply to lawyers making YouTube videos, posting on Twitter and Facebook, and launching podcasts? Few regulators have addressed them, and lawyers are left petrified and paralyzed in the absence of any useful guidance. Those same lawyers are always aware of the regulators’ prior peccadilloes, so they are unlikely to innovate for fear of scrutiny.
Some lawyers are creating videos for the public’s benefit, and they’re trying to navigate rules not designed to address video. Video-savvy lawyers look to ethics opinions about social media (to the extent those exist) to chart a course for video. But many are left to guess about how they should advance ethics regulators’ patriarchy while also providing marketing materials to their future clients.
The lag between the technology adoption lifecycle and ethics regulators’ prescience about lawyers’ use of that technology in legal advertising is incapacitating and getting worse. Facebook surpassed 300 million active users in 2009. That is, a cohort of people roughly the population of the entire United States has been using Facebook for nearly a decade. For context, here are some things that didn’t exist in 2009:
We, as technology-forward, innovation-friendly ethics lawyers, have a generic sense that the profession is trying to “do” innovation better. For example, lawyers are arguably better today than ever at appropriating technology and culture change from other segments of the economy. But while law firm cultures may be evolving at a speedier clip, innovation is thwarted by some old ethics rules.
Whether this is a good thing or a bad one is subject to some debate. Traditionalists maintain that ethics rules protect the public and mitigate risk through torpor. The futurists counter that protectionism is only a virtue if the thing it shelters from change is worth preserving in the first instance.
There can be no debate, though, that the system traditionalists seek to protect exacerbated‚ or, more likely, caused‚ the access to justice gap and our plodding advances in the delivery of legal services.
Anti-solicitation and advertising regulations are designed to not only protect the public but safeguard the image of lawyers. Nevertheless…access to justice is undermined by the legal profession’s maintenances of ethics rules that keep the public uninformed of the importance and availability of legal services.
—Milan Markovic in Juking Access to Justice to Deregulate the Legal Market
It is time we update the Rules of Professional Conduct.
Among rules most ripe for change are those about marketing legal services to the public.
Attorney Advertising Rules Need Updating
There was a time, before 1977, when the rules prohibited lawyers from advertising their services. Legal advertising has come a long way in the last 40 years, but the rules still suffer from decades-long lag. These rules, written from their authors’ patriarchal perches, were guided by one (perceived) truth: the general public is woefully unsophisticated and paralyzingly unable to survive exposure to advertising. There is no evidence, however, that the public is as gullible as the rules and their drafters assume.
The public is not as gullible as the rules and their drafters assume.
ABA Model Rules 7.1 and 7.2 serve as the foundation for most states’ advertising rules. And, at that base level, it makes some sense. They say, among other things, that lawyers can’t make false or misleading advertisements or pay for recommendations and that every advertisement must include a name and contact details for at least one lawyer or law firm responsible for its content. But many states, viewing advertising as evil, have cobbled on onerous and sometimes bizarre restrictions.
For example, Florida requires lawyers to submit advertisements to the bar for review. You read that correctly: Florida has an office of lawyers devoted to pre-viewing and pre-approving (with a $150 fee per ad!) lawyer advertisements. Direct mail and e-mail, television and radio spots, yellow-pages ads (remember the yellow pages?), and internet advertising are all subject to review. Florida lawyers violate the rule if they have not submitted a proposed ad 20 days in advance. And they can only launch it if the bar approves. The Florida Bar publishes a 35-page book of advertising restrictions and guidelines.
Imagine an attorney becoming aware of a pressing issue for a potential client, like an impending foreclosure or potential fraud. She could not send a letter to the potential client without waiting at least 20 days for the bar to review it.
In New York, lawyers must have detailed descriptions of routine services for which they advertise a flat fee available to the public at the time they publish the fee. New York also has particular requirements for approving and retaining all advertisements and “computer-accessed communications.”
Texas, for its part, has severe and burdensome internet advertising rules, too.
Do these restrictions protect the public? It is hard to tell. At a minimum, no available empirical data supports these various limits. Worse, they very obviously hinder lawyers’ ability and willingness to risk reaching people most in need of their assistance. And its cynicism is apparent: lawyers left unbridled will mislead the public and otherwise violate the rules.
The inherent fallacy is that the public cannot sift through advertisements. And it is nonsense. Turn on any major sporting event and the name of the game and the field on which it is played likely begins with an ad (see, e.g., college football’s Cheribundi Tart Cherry Boca Raton Bowl). Ride any high rise elevator and ads amuse its captives on high definition screens. Social media ads are ubiquitous. Radio disc jockeys read sound bites in a manner that suggests that they had used the advertised services, and public restrooms feature TV screens with a constant deluge of ongoing ads.
Some (most?) states have created rules about advertising. But those states have lagged‚ often dramatically‚ in editing and updating them. What rules apply to lawyers making YouTube videos, posting on Twitter and Facebook, and launching podcasts? Few regulators have addressed them, and lawyers are left petrified and paralyzed in the absence of any useful guidance. Those same lawyers are always aware of the regulators’ prior peccadilloes, so they are unlikely to innovate for fear of scrutiny.
Some lawyers are creating videos for the public’s benefit, and they’re trying to navigate rules not designed to address video. Video-savvy lawyers look to ethics opinions about social media (to the extent those exist) to chart a course for video. But many are left to guess about how they should advance ethics regulators’ patriarchy while also providing marketing materials to their future clients.
The lag between the technology adoption lifecycle and ethics regulators’ prescience about lawyers’ use of that technology in legal advertising is incapacitating and getting worse. Facebook surpassed 300 million active users in 2009. That is, a cohort of people roughly the population of the entire United States has been using Facebook for nearly a decade. For context, here are some things that didn’t exist in 2009:
iPads
Google Chrome
Pinterest
Google Maps
Amusingly‚ or sadly, depending on one’s perspective‚ California was viewed as a forward-looking state when it issued its Facebook posting ethics opinion three years later in 2012. Most states have still not issued specific guidance on how lawyers can use social media ethically.
The problem is obvious: years after Facebook has gone entirely mainstream (and, arguably, begun its inevitable decline into obsolescence), millions of lawyers still have no fundamental guidance about how to identify themselves as being responsible for an ad there or, in the case of Twitter, how to post mandatory disclaimers in 280 characters.
Lawyers likely react to this regulatory framework in one of two ways. Most do nothing at all, leaving the world’s most disruptive and powerful marketing channel ever invented to sit idly by as lawyers try to modernize their marketing and advertising and crusade for access-to-justice. The more adventurous ones guess and cross their fingers. To be sure, this is no way to run a self-regulated ethics system.
Google Chrome
Google Maps
Amusingly‚ or sadly, depending on one’s perspective‚ California was viewed as a forward-looking state when it issued its Facebook posting ethics opinion three years later in 2012. Most states have still not issued specific guidance on how lawyers can use social media ethically.
The problem is obvious: years after Facebook has gone entirely mainstream (and, arguably, begun its inevitable decline into obsolescence), millions of lawyers still have no fundamental guidance about how to identify themselves as being responsible for an ad there or, in the case of Twitter, how to post mandatory disclaimers in 280 characters.
Lawyers likely react to this regulatory framework in one of two ways. Most do nothing at all, leaving the world’s most disruptive and powerful marketing channel ever invented to sit idly by as lawyers try to modernize their marketing and advertising and crusade for access-to-justice. The more adventurous ones guess and cross their fingers. To be sure, this is no way to run a self-regulated ethics system.
Recent “Progress”
A revolutionary overhaul of the advertising rules is long overdue. Some may even claim that an overhaul is imminent. After all, the ABA approved a resolution in August 2018 to revise the advertising rules. In our view, the changes do little to advance lawyers’ ability to advertise in useful ways.
Rule 7.2 now allows lawyers to use “all media” (a change from “written, recorded or electronic communication, including public media”). In a nod to virtual law practices, lawyers can now designate other contact information on an ad instead of an office address. And lawyers can now send gifts of appreciation to referral sources.
A revolutionary overhaul of the advertising rules is long overdue. Some may even claim that an overhaul is imminent. After all, the ABA approved a resolution in August 2018 to revise the advertising rules. In our view, the changes do little to advance lawyers’ ability to advertise in useful ways.
Rule 7.2 now allows lawyers to use “all media” (a change from “written, recorded or electronic communication, including public media”). In a nod to virtual law practices, lawyers can now designate other contact information on an ad instead of an office address. And lawyers can now send gifts of appreciation to referral sources.
Conclusion
To be clear, the ABA’s resolution will not result in seismic shifts. Lawyers will still labor under self-imposed restrictions that hinder our reach to potential clients and worry professionals across the land. If anything, the ABA’s revisions show how glacial, marginal, and incremental evolution cripples our profession. That is, while media and business change rapidly around us, we nibble around the edges of our old rules. That there was change at all feels like progress, perhaps, but we’re only falling further behind.
Regulating lawyer advertising at a microscopic level is unreasonable and ineffective. Regulators should stop trying to control the nitty gritty of attorney advertising. They should take a higher-level approach instead and focus on existing rules that require lawyers to be honest and forthright when communicating with the public. Limiting regulation to an unambiguous, evergreen rule like that would unlock lawyers’ creativity and give regulators all the ammunition they need to police our profession from troublesome advertising practices.
To be clear, the ABA’s resolution will not result in seismic shifts. Lawyers will still labor under self-imposed restrictions that hinder our reach to potential clients and worry professionals across the land. If anything, the ABA’s revisions show how glacial, marginal, and incremental evolution cripples our profession. That is, while media and business change rapidly around us, we nibble around the edges of our old rules. That there was change at all feels like progress, perhaps, but we’re only falling further behind.
Regulating lawyer advertising at a microscopic level is unreasonable and ineffective. Regulators should stop trying to control the nitty gritty of attorney advertising. They should take a higher-level approach instead and focus on existing rules that require lawyers to be honest and forthright when communicating with the public. Limiting regulation to an unambiguous, evergreen rule like that would unlock lawyers’ creativity and give regulators all the ammunition they need to police our profession from troublesome advertising practices.
x x x."
JOSE MANUEL I. DIOKNO
See - http://philipjrlustre.blogspot.com/2017/02/introducing-jose-manuel-i-diokno-lawyer.html
"x x x.
INTRODUCING JOSE MANUEL I. DIOKNO, LAWYER
"x x x.
INTRODUCING JOSE MANUEL I. DIOKNO, LAWYER
OF SEN. LEILA DE LIMA
By Philip M. Lustre Jr.
Jose Manuel Diokno, lawyer of embattled Sen. Leila de Lelima, was thirteen years old when he started joining his father Jose, the illustrious lawmaker, human rights advocate, and nationalist, in court hearings of the latter’s clients, mostly political activists and poor citizens.
Jose Manuel, or Chel, sat at the back of his father, watching the courtroom drama and listening to vigorous exchanges of arguments among litigating lawyers, or absorbing depressing testimonies from respondents.
Chel Diokno did not see the world winking at him as a pubescent kid. On the contrary, he saw a world of oppression and destitution. This education in his formative years proved pivotal in his career choice.
It did not take long for Chel Diokno to help his father in the latter’s law practice, mainly for pro bono clients.
Soon, the pubescent paralegal visited various jails, conducted interviews with jailed clients and witnesses, prepared and wrote their testimonies as background materials, and helped his father in building up cases for them.
Even his father was surprised on his extraordinary enthusiasm.
No, the former senator never thought Chel would become a lawyer someday. Neither did he encourage the kid to take up law. Nor did he give any financial reward for his self starting kid.
This happened at the height of the repressive martial law, or soon after the dictator Ferdinand Marcos released his father from nearly two years of imprisonment.
That was the time, when the nation was silenced into submission by the spate of arrests and detention of the dictator’s political enemies, whom the autocrat collectively labelled as “enemies of the State.”
After completing his undergraduate course at the University of the Philippines, Chel Diokno entered the UP College of Law with the resolve to follow his father’s footsteps to become not just an ordinary lawyer, but a human rights lawyer too.
He was already in law school, when the 1983 assassination of opposition leader Benigno Aquino Jr. shook the world for its noontime drama and naked display of power.
Apprehensive that his son would be involved in the unmitigated political dynamics of those days, Ka Pepe sent Chel to the United States to finish his law degree there.
He did it at the Northern Illinois University. Soon, he passed the U.S. Bar examinations. He returned to the country after the fateful 1986 EDSA People Power Revolution that toppled the oppressive Marcos dictatorship.
Chel Diokno passed the Bar examinations here and attended to his father, whose health was already failing during those days.
Despite completing his law degree in the U.S., Chel said he passed the local Bar examinations because the two countries have basically the same legal principles.
After his father’s death in 1987, Chel took over his father’s law office and did litigation works, mostly human rights cases.
While Chel appears low key compared to his outspoken father, who never hesitated to speak out his mind on every burning issue of the day, he does not lack the intensity or the passion to push for his human rights agenda.
Soon, he is deep into human rights, an advocacy which he feels proud to inherit from his father.
De La Salle University, of which Ka Pepe was one of its outstanding alumni, offered Chel Diokno to become the founding dean of its law school in 2010.
According to Chel, the De La Salle brothers urged him to form a law school with a strong foundation on human rights. It was an offer which was difficult to refuse.
Under his leadership as its founding law dean, the law school has come out with a curriculum that seeks to develop the litigation skills of prospective lawyers.
Veering away from the other law schools’ emphasis on book knowledge, the new law school seeks to develop legal writing skills among their students.
Also, their students, upon reaching third year, have to provide mandatory legal aid services to poor litigants. This is part of their on-the-job training, Chel said.
DLSU is the first law school to do it. Moreover, DLSU law students can choose to major in any of the three areas: human rights law, corporation law; and environmental law.
Chel Diokno said he accepted the post of a law dean, when the DLSU brothers had assured him a free hand to develop its law curriculum.
In fact, they told him they wanted a law school deeply oriented in human rights. He said he has specific instructions to develop a law school with a strong sense of values and ethics.
It has been a challenge, which, like a typical passionate yet compassionate Chel Diokno, would never run away.
x x x."
By Philip M. Lustre Jr.
Jose Manuel Diokno, lawyer of embattled Sen. Leila de Lelima, was thirteen years old when he started joining his father Jose, the illustrious lawmaker, human rights advocate, and nationalist, in court hearings of the latter’s clients, mostly political activists and poor citizens.
Jose Manuel, or Chel, sat at the back of his father, watching the courtroom drama and listening to vigorous exchanges of arguments among litigating lawyers, or absorbing depressing testimonies from respondents.
Chel Diokno did not see the world winking at him as a pubescent kid. On the contrary, he saw a world of oppression and destitution. This education in his formative years proved pivotal in his career choice.
It did not take long for Chel Diokno to help his father in the latter’s law practice, mainly for pro bono clients.
Soon, the pubescent paralegal visited various jails, conducted interviews with jailed clients and witnesses, prepared and wrote their testimonies as background materials, and helped his father in building up cases for them.
Even his father was surprised on his extraordinary enthusiasm.
No, the former senator never thought Chel would become a lawyer someday. Neither did he encourage the kid to take up law. Nor did he give any financial reward for his self starting kid.
This happened at the height of the repressive martial law, or soon after the dictator Ferdinand Marcos released his father from nearly two years of imprisonment.
That was the time, when the nation was silenced into submission by the spate of arrests and detention of the dictator’s political enemies, whom the autocrat collectively labelled as “enemies of the State.”
After completing his undergraduate course at the University of the Philippines, Chel Diokno entered the UP College of Law with the resolve to follow his father’s footsteps to become not just an ordinary lawyer, but a human rights lawyer too.
He was already in law school, when the 1983 assassination of opposition leader Benigno Aquino Jr. shook the world for its noontime drama and naked display of power.
Apprehensive that his son would be involved in the unmitigated political dynamics of those days, Ka Pepe sent Chel to the United States to finish his law degree there.
He did it at the Northern Illinois University. Soon, he passed the U.S. Bar examinations. He returned to the country after the fateful 1986 EDSA People Power Revolution that toppled the oppressive Marcos dictatorship.
Chel Diokno passed the Bar examinations here and attended to his father, whose health was already failing during those days.
Despite completing his law degree in the U.S., Chel said he passed the local Bar examinations because the two countries have basically the same legal principles.
After his father’s death in 1987, Chel took over his father’s law office and did litigation works, mostly human rights cases.
While Chel appears low key compared to his outspoken father, who never hesitated to speak out his mind on every burning issue of the day, he does not lack the intensity or the passion to push for his human rights agenda.
Soon, he is deep into human rights, an advocacy which he feels proud to inherit from his father.
De La Salle University, of which Ka Pepe was one of its outstanding alumni, offered Chel Diokno to become the founding dean of its law school in 2010.
According to Chel, the De La Salle brothers urged him to form a law school with a strong foundation on human rights. It was an offer which was difficult to refuse.
Under his leadership as its founding law dean, the law school has come out with a curriculum that seeks to develop the litigation skills of prospective lawyers.
Veering away from the other law schools’ emphasis on book knowledge, the new law school seeks to develop legal writing skills among their students.
Also, their students, upon reaching third year, have to provide mandatory legal aid services to poor litigants. This is part of their on-the-job training, Chel said.
DLSU is the first law school to do it. Moreover, DLSU law students can choose to major in any of the three areas: human rights law, corporation law; and environmental law.
Chel Diokno said he accepted the post of a law dean, when the DLSU brothers had assured him a free hand to develop its law curriculum.
In fact, they told him they wanted a law school deeply oriented in human rights. He said he has specific instructions to develop a law school with a strong sense of values and ethics.
It has been a challenge, which, like a typical passionate yet compassionate Chel Diokno, would never run away.
x x x."
United Nations Convention on the Law of the Sea (UNCLOS). - "By initiating and winning its South China Sea arbitral case against China on July 12, 2016, we have shown the world that our country sought to resolve a serious dispute state-to-state in its regional neighborhood solely through legal, peaceful and transparent means."
See - https://news.abs-cbn.com/blogs/opinions/09/27/18/opinion-the-rule-of-law
"x x x.
OPINION: The Rule of Law
Former Foreign Affairs Secretary Albert Del Rosario
Posted at Sep 27 2018 08:59 PM
(Editor's note: Speech delivered at the conferment of an honorary doctorate degree in humanities by the Ateneo de Manila University on the author on September 25, 2018)
First of all, I would like to proffer my profound thanks to the Ateneo for sharing its tradition of excellence with us on this incredible day. It is a great honor to receive this conferment from the Ateneo and I am deeply humbled by it.
With your kind indulgence, I have chosen to speak on the “Rule of Law” which I believe to be a timely and important subject. For many of us, this concept of the rule of law applies only in a domestic concept.
That is to say, it governs the relationships within a Nation State, between its citizens and various juridical entities, within the government, and between the government and the people.
We helped forge international rules and norms for global disarmament and arms control, for trade and development, for health, for climate change and for migration, among others.
We are one of the Five Founding Members of ASEAN and an advocate of its multiplicity of dialogue mechanisms. We helped create APEC, the East Asian Summit (EAS) and the ASEAN Regional Forum (ARF).
Throughout this time, through successive administrations, the explicit or implicit operating assumption of the Philippines was that we were helping to build a more peaceful and prosperous world. The lodestone for all this effort, accomplished in various diplomatic forms, has been an abiding faith in the centrality of the rule of law. As a developing country, albeit now a fast-growing one, which seeks both security and progress through engagement with the world, it is crucial for the Philippines to maintain solidarity with other countries and all stakeholders who share a similar faith. Whether it is to solidify peace and stability through UNCLOS in the South China, or to save the rules-based multilateral trading system in the WTO, or to protect our Planet Earth through the implementation of the Paris Accords, or to avoid a nuclear catastrophe with the Non-Proliferation Treaty (NPT), we must stand steadfast with responsible nations for the rule of law.
In this regard, may I recall that the Philippines has already made a tremendous contribution to the advancement of the Rule of Law.
By initiating and winning its South China Sea arbitral case against China on July 12, 2016, we have shown the world that our country sought to resolve a serious dispute state-to-state in its regional neighborhood solely through legal, peaceful and transparent means.
The Arbitral Award safeguarded vital Philippine sovereign interests in the South China Sea against unjust encroachments by Beijing.
By ruling against the legality of the so-called Nine-Dash line claim, the Arbitral Tribunal demonstrated that Beijing had not acted in accordance with international law on areas affecting the maritime claims of the Philippines.
Allow me to quote Senior Associate Justice Antonio T. Carpio on this crucial point:
“Among coastal states in the South China Sea, the most important aspect of the Award is the ruling that China’s so-called historic nine-dashed line cannot serve as legal basis to claim any part of the waters or resources of the South China Sea. China, like all the other coastal states in the South China Sea, can only claim maritime zones not exceeding 350-NM from its coastline.
"The Award in effect affirmed the existence of high seas in the South China, comprising about 25% of the waters of the South China Sea, and all around these high seas are the EEZs of the adjacent coastal states. In the EEZs, all the fish, oil, gas and other mineral resources can be exploited solely, and exclusively, only by the adjacent coastal state.”
Let me also recall that the decision to go to court, so to speak, was not done rashly in haste. The Philippines tried in vain to engage with China in discussions to resolve our differences. And since the ruling, China has continued its unilateralist actions leading to an increased militarization of the South China Sea through more construction on its artificial islands and naval upgrades.
It is truly unfortunate that Beijing chose not to work with us in finding an enduring legal way out of the disputes. If Beijing had taken part in the arbitration, the legal parameters of our common concerns would have been established for the eventual longer term resolution of our disputes through further negotiation.
Let me add further that such negotiations, after the tribunal outcome, would have placed the Philippines on a stronger footing vis-a-vis the rising power of China.
In any case, Beijing’s rejection of the Arbitral Ruling is considered immaterial. The Ruling is now an integral part of international law. Even the Presidential Spokesman has recognized this.
It is the prerogative and the responsibility of an incumbent Administration to decide on our Foreign Policy and to craft our diplomacy. At the same time, in a democracy, the citizenry may freely express its views. Members of the foreign affairs community should also be encouraged to share their expertise, experience and proposals for the general good.
So where are we in this respect? Objectively speaking, are we at a stalemate? I would submit that we are not. China has not only rejected the Arbitral Ruling, but has steadily moved to consolidate its presence and power projection in the South China Sea. This can only be to the disadvantage of the Philippines and other regional claimant states.
Furthermore, while negotiations on a binding regional code of conduct may be commendable, we should take care that nothing in it will undermine the legal victory of the Philippines.
Given Beijing’s prevailing hostility to our legal process, we must be vigilant on this score.
Moving forward will clearly be a complex task, where action will be required on several fronts, to protect and promote the Arbitral Award. All our actions, however, must be guided by the Arbitral Ruling, the sterling manifestation of the Rule of Law.
While we are cognizant of the imperative not to start an armed conflict, we firmly believe that adherence to the Rule of Law is a profoundly pacifist way that everyone should be able to follow. The thought that war was the only alternative to setting aside the Arbitral decision cannot possibly be serious in this modern world.
We should therefore protest any further illegal action by China. This applies especially to violations of our airspace and maritime entitlements and illegal activities such as harassing our fishermen and stealing our natural resources.
Issuing protests is not an act of aggression. It is standard diplomatic practice. The important thing is to show our disagreement for the record so that it may never be said that we have renounced our legitimate claims in the South China Sea.
We must also be vigilant about further militarization on the artificial islands.
These are clearly of a destabilizing nature that affect the security not only of Southeast Asia but also of the entire East Asian region. We have to remain aware of Beijing’s larger game.
Beijing’s stance risks exacerbating the potential of great power conflict, the one eventuality that nobody wants. If, indeed, China is intent on changing the status quo in the waters of our region, the Philippines should not be complicit in this strategic manoeuvre.
Taking into consideration the interests of other countries, the Philippines should also remain open to discussing the regional impact of the ruling. China will probably not attend, but we may proceed with other interested countries. To dispel any fear, we can have such discussions in a purely academic setting to begin with. There are many think tanks that would find such a discussion of great interest in contributing to a more clear, predictable and stable regional future.
The Philippines should of course actively participate in any international or regional event that seeks to establish norms or rules, whether legally binding or soft-law, that would strengthen further the foundations of the Rule of Law in inter-state relations within the region. The South China Sea is not the only area of dispute in East Asia. Improvements in one might hopefully lead to amelioration elsewhere.
In the case of the South China Sea, given the existence of multiple claimants, multilateral diplomacy is necessary. This means the involvement not just of other territorial claimants but also of other states who have varied interests in the South China Sea basin. So the member-states of ASEAN, the EAS and the ARF should be appropriately included for reasons of transparency and fairness to all concerned.
Since we are far from a peaceful, final, and lasting political settlement of the South China Sea disputes, it makes eminent sense to promote interim trust and confidence-building measures and other practical initiatives.
These may not touch on borders or sovereignty questions, but would instead focus on such areas as fishing, marine environment, the safety of shipping and the avoidance of collisions and other untoward incidents at sea.
However, we must take great care about resource-sharing arrangements. We must ensure that they conform with the Philippine Constitution and do not serve to undermine the Arbitral Ruling. Indeed, joint exploitation is so sensitive an issue we really should create a multisectoral consultative body, with our best legal minds, to assist the Administration in developing this initiative. It behoves us moreover to be transparent in our intentions.
The attitude of caution should also be present when we accept Chinese loans. Our country obviously needs greater investments to modernize infrastructure and sustain our growth to increase employment. Nonetheless, we should remain mindful of the numerous reports regarding so-called debt traps involving the injudicious use of loans from China in various countries.
Our ultimate objective is to lay the foundations for predictability and stability. All we do before that are steps on the way to that objective, accomplished within a framework of diplomatic dialogue and cooperation reinforced by what should be a common commitment to the Rule of Law.
The Rule of Law is the only principle that can transcend the interests of various jurisdictions in the sphere of international relations. If we do not adhere to the Rule of Law, then we consign our regional affairs to the clash of national interests without rules. The regional order would then be one where the strong will impose on the weak, and the regional order will be designed not to serve our shared interests in a prosperous and progressive future but the rival interests of great powers.
The Philippines took a giant step in promoting the Rule of Law in our region, and indeed, for the whole world by recourse to Arbitration.
We are now at the crossroads of an opportunity which we should not let fall from our grasp. We are also beset by threats on all sides. As I said at the beginning, there are those not happy, for reasons right and wrong, with the current status quo in many areas.
The unifying principle that would help most in containing and eventually resolving international disputes is a solid adherence to the Rule of Law, through the different instruments and mechanisms that codify, explain and operationalize it.
Of course, this includes UNCLOS and the Arbitral Ruling that clarified critical points of its application in the South China Sea.
In conclusion, permit me to humbly leave a suggested approach on the table. As we continue to urgently request our government to seek a resolution from the UN General Assembly to have China abide by the arbitral outcome, Filipino citizens can and should continue to discuss the subject. Not only at home, but with our friends and allies overseas.
This can be done with think tanks, universities, CSOs and peoples organizations in a positive spirit of mutual engagement. I respectfully invite you, members of the Ateneo community, to join us in exploring – if you will - the various options on how we can move forward to pursue our respective entitlements and to make our region a safer place.
One major purpose of our think tank entity - the Stratbase ADR Institute - is not to work at cross-purposes with the Administration. Rather, it is to help keep this singular legal achievement of our Republic in the public mind so all people can explore it’s full potential for consolidating the international Rule of Law.
The future may be unclear and uncertain today. But fidelity to the Rule of Law and believing that right is might would buttress a truly independent foreign policy.
Finally, how can each of us be helpful? We can help by understanding what is happening, by adding our voices to defend what is ours and by taking a united stand in upholding the rule of law and doing what is right.
x x x."
"x x x.
OPINION: The Rule of Law
Former Foreign Affairs Secretary Albert Del Rosario
Posted at Sep 27 2018 08:59 PM
(Editor's note: Speech delivered at the conferment of an honorary doctorate degree in humanities by the Ateneo de Manila University on the author on September 25, 2018)
First of all, I would like to proffer my profound thanks to the Ateneo for sharing its tradition of excellence with us on this incredible day. It is a great honor to receive this conferment from the Ateneo and I am deeply humbled by it.
With your kind indulgence, I have chosen to speak on the “Rule of Law” which I believe to be a timely and important subject. For many of us, this concept of the rule of law applies only in a domestic concept.
That is to say, it governs the relationships within a Nation State, between its citizens and various juridical entities, within the government, and between the government and the people.
Indeed, all countries should be governed by the rule of law. Democracies, as the saying goes, are governments of law and not of men.
However, what we must never forget is that the rule of law must also govern relations among states and other international entities.
However, what we must never forget is that the rule of law must also govern relations among states and other international entities.
After suffering two world wars, the international community had strived to establish international law as the bedrock foundation for the lawful governance of global affairs.
The United Nations is the centrepiece of these efforts to outlaw aggression between states and to promote more peaceful relations. Other international mechanisms, including the Bretton Woods system and the multilateral trading system anchored on the World Trade Organization, similarly aimed to have more order, stability and predictability in international economic relations.
Now, however, this international order seems beset by challenges on all sides. Alienated, disaffected and angry elements appear intent on tearing down much of what the international community has built in the Post-World War II era.
We face threats from embittered, anti-immigrant and right-wing populists, to economic super-nationalists, to the neo-authoritarians pushing against liberal democracy at home and asserting their power overseas, to religious extremists of so many kinds.
Here, in our own region, we have seen an example of such unilateralist action right on our very door step. In the South China Sea, despite our best efforts to find a peaceful and lasting resolution to our disputes that would account for the legitimate interests of all parties, we find China still obstinately acting in a contrary manner.
As a result, we are now in a new era of uncertainty. There is now disarray in the ranks of governments. We are casting around for ways to respond in a meaningful fashion to preserve the established order, while answering the frustration and fury of many electorates.
To be fair, much of the disenchantment arises from the failures of the current systems. Despite its many achievements, the United
The United Nations is the centrepiece of these efforts to outlaw aggression between states and to promote more peaceful relations. Other international mechanisms, including the Bretton Woods system and the multilateral trading system anchored on the World Trade Organization, similarly aimed to have more order, stability and predictability in international economic relations.
Now, however, this international order seems beset by challenges on all sides. Alienated, disaffected and angry elements appear intent on tearing down much of what the international community has built in the Post-World War II era.
We face threats from embittered, anti-immigrant and right-wing populists, to economic super-nationalists, to the neo-authoritarians pushing against liberal democracy at home and asserting their power overseas, to religious extremists of so many kinds.
Here, in our own region, we have seen an example of such unilateralist action right on our very door step. In the South China Sea, despite our best efforts to find a peaceful and lasting resolution to our disputes that would account for the legitimate interests of all parties, we find China still obstinately acting in a contrary manner.
As a result, we are now in a new era of uncertainty. There is now disarray in the ranks of governments. We are casting around for ways to respond in a meaningful fashion to preserve the established order, while answering the frustration and fury of many electorates.
To be fair, much of the disenchantment arises from the failures of the current systems. Despite its many achievements, the United
Nations has seemed increasingly powerless against so many instances of conflict. The U.N. did help in preventing the outbreak of general war since 1945 alongside the nuclear superpower balance. But there has been an explosion of sub-state conflict involving non-state actors and as well terrible humanitarian catastrophes.
Economic globalization did reduce the number of absolute poor in the world, lifting up many developing nations, enabling them to participate and contribute at unprecedented levels in the global economy. But that progress has been uneven and too many have been left behind. Furthermore, repeated financial meltdowns, greater than the Great Depression of the 1930s, also a product of globalization, has shaken the core of the global economy.
The IT revolution has taken down barriers, facilitated communication, boosted creativity and productivity and brought people together more closely than ever before. But, paradoxically, the IT Revolution has also fuelled extremism and hate.
More ominously, it has permitted cyber-criminality, which respects neither law nor national borders, to spread like an uncontrollable cancer.
What does all this mean for the Philippines? How do we manage in an era of uncertainty that is perhaps deeper and darker than at any time in a generation? We seem to be drifting, like so many other nations, into a nebulous unknown.
The first, I believe, is to realize that the Philippines has a fundamental and enduring stake in the international system.
Economic globalization did reduce the number of absolute poor in the world, lifting up many developing nations, enabling them to participate and contribute at unprecedented levels in the global economy. But that progress has been uneven and too many have been left behind. Furthermore, repeated financial meltdowns, greater than the Great Depression of the 1930s, also a product of globalization, has shaken the core of the global economy.
The IT revolution has taken down barriers, facilitated communication, boosted creativity and productivity and brought people together more closely than ever before. But, paradoxically, the IT Revolution has also fuelled extremism and hate.
More ominously, it has permitted cyber-criminality, which respects neither law nor national borders, to spread like an uncontrollable cancer.
What does all this mean for the Philippines? How do we manage in an era of uncertainty that is perhaps deeper and darker than at any time in a generation? We seem to be drifting, like so many other nations, into a nebulous unknown.
The first, I believe, is to realize that the Philippines has a fundamental and enduring stake in the international system.
We have always been an open and welcoming country. Over the past twenty years, we have also made profound decisions to become ever more engaged with the world in all dimensions. Politically, economically, technologically and in terms of people-to-people relations, the Philippines has not been wanting in efforts to reach out and work with other countries for the common good.
The second, and more importantly, is that the Philippines is not insignificant on the world stage.
As a member of the community of nations, we have been active in global efforts to create rules for international order that would save us from a dog-eat-dog world of competing powers and naked interests. The Philippines was a Charter Member of the United Nations Charter. We worked for greater respect for humanity as a drafter of the Universal Declaration of Human Rights. We participated actively in the decades-long effort that produced the United Nations Convention on the Law of the Sea (UNCLOS).
The Philippines took part in United Nations peacekeeping, from Korea to the Golan Heights. We have, within our means, joined mercy and humanitarian missions, including the Red Cross.
The second, and more importantly, is that the Philippines is not insignificant on the world stage.
As a member of the community of nations, we have been active in global efforts to create rules for international order that would save us from a dog-eat-dog world of competing powers and naked interests. The Philippines was a Charter Member of the United Nations Charter. We worked for greater respect for humanity as a drafter of the Universal Declaration of Human Rights. We participated actively in the decades-long effort that produced the United Nations Convention on the Law of the Sea (UNCLOS).
The Philippines took part in United Nations peacekeeping, from Korea to the Golan Heights. We have, within our means, joined mercy and humanitarian missions, including the Red Cross.
We helped forge international rules and norms for global disarmament and arms control, for trade and development, for health, for climate change and for migration, among others.
We are one of the Five Founding Members of ASEAN and an advocate of its multiplicity of dialogue mechanisms. We helped create APEC, the East Asian Summit (EAS) and the ASEAN Regional Forum (ARF).
Throughout this time, through successive administrations, the explicit or implicit operating assumption of the Philippines was that we were helping to build a more peaceful and prosperous world. The lodestone for all this effort, accomplished in various diplomatic forms, has been an abiding faith in the centrality of the rule of law. As a developing country, albeit now a fast-growing one, which seeks both security and progress through engagement with the world, it is crucial for the Philippines to maintain solidarity with other countries and all stakeholders who share a similar faith. Whether it is to solidify peace and stability through UNCLOS in the South China, or to save the rules-based multilateral trading system in the WTO, or to protect our Planet Earth through the implementation of the Paris Accords, or to avoid a nuclear catastrophe with the Non-Proliferation Treaty (NPT), we must stand steadfast with responsible nations for the rule of law.
In this regard, may I recall that the Philippines has already made a tremendous contribution to the advancement of the Rule of Law.
By initiating and winning its South China Sea arbitral case against China on July 12, 2016, we have shown the world that our country sought to resolve a serious dispute state-to-state in its regional neighborhood solely through legal, peaceful and transparent means.
The Arbitral Award safeguarded vital Philippine sovereign interests in the South China Sea against unjust encroachments by Beijing.
By ruling against the legality of the so-called Nine-Dash line claim, the Arbitral Tribunal demonstrated that Beijing had not acted in accordance with international law on areas affecting the maritime claims of the Philippines.
Allow me to quote Senior Associate Justice Antonio T. Carpio on this crucial point:
“Among coastal states in the South China Sea, the most important aspect of the Award is the ruling that China’s so-called historic nine-dashed line cannot serve as legal basis to claim any part of the waters or resources of the South China Sea. China, like all the other coastal states in the South China Sea, can only claim maritime zones not exceeding 350-NM from its coastline.
"The Award in effect affirmed the existence of high seas in the South China, comprising about 25% of the waters of the South China Sea, and all around these high seas are the EEZs of the adjacent coastal states. In the EEZs, all the fish, oil, gas and other mineral resources can be exploited solely, and exclusively, only by the adjacent coastal state.”
Let me also recall that the decision to go to court, so to speak, was not done rashly in haste. The Philippines tried in vain to engage with China in discussions to resolve our differences. And since the ruling, China has continued its unilateralist actions leading to an increased militarization of the South China Sea through more construction on its artificial islands and naval upgrades.
It is truly unfortunate that Beijing chose not to work with us in finding an enduring legal way out of the disputes. If Beijing had taken part in the arbitration, the legal parameters of our common concerns would have been established for the eventual longer term resolution of our disputes through further negotiation.
Let me add further that such negotiations, after the tribunal outcome, would have placed the Philippines on a stronger footing vis-a-vis the rising power of China.
In any case, Beijing’s rejection of the Arbitral Ruling is considered immaterial. The Ruling is now an integral part of international law. Even the Presidential Spokesman has recognized this.
It is the prerogative and the responsibility of an incumbent Administration to decide on our Foreign Policy and to craft our diplomacy. At the same time, in a democracy, the citizenry may freely express its views. Members of the foreign affairs community should also be encouraged to share their expertise, experience and proposals for the general good.
So where are we in this respect? Objectively speaking, are we at a stalemate? I would submit that we are not. China has not only rejected the Arbitral Ruling, but has steadily moved to consolidate its presence and power projection in the South China Sea. This can only be to the disadvantage of the Philippines and other regional claimant states.
Furthermore, while negotiations on a binding regional code of conduct may be commendable, we should take care that nothing in it will undermine the legal victory of the Philippines.
Given Beijing’s prevailing hostility to our legal process, we must be vigilant on this score.
Moving forward will clearly be a complex task, where action will be required on several fronts, to protect and promote the Arbitral Award. All our actions, however, must be guided by the Arbitral Ruling, the sterling manifestation of the Rule of Law.
While we are cognizant of the imperative not to start an armed conflict, we firmly believe that adherence to the Rule of Law is a profoundly pacifist way that everyone should be able to follow. The thought that war was the only alternative to setting aside the Arbitral decision cannot possibly be serious in this modern world.
We should therefore protest any further illegal action by China. This applies especially to violations of our airspace and maritime entitlements and illegal activities such as harassing our fishermen and stealing our natural resources.
Issuing protests is not an act of aggression. It is standard diplomatic practice. The important thing is to show our disagreement for the record so that it may never be said that we have renounced our legitimate claims in the South China Sea.
We must also be vigilant about further militarization on the artificial islands.
These are clearly of a destabilizing nature that affect the security not only of Southeast Asia but also of the entire East Asian region. We have to remain aware of Beijing’s larger game.
Beijing’s stance risks exacerbating the potential of great power conflict, the one eventuality that nobody wants. If, indeed, China is intent on changing the status quo in the waters of our region, the Philippines should not be complicit in this strategic manoeuvre.
Taking into consideration the interests of other countries, the Philippines should also remain open to discussing the regional impact of the ruling. China will probably not attend, but we may proceed with other interested countries. To dispel any fear, we can have such discussions in a purely academic setting to begin with. There are many think tanks that would find such a discussion of great interest in contributing to a more clear, predictable and stable regional future.
The Philippines should of course actively participate in any international or regional event that seeks to establish norms or rules, whether legally binding or soft-law, that would strengthen further the foundations of the Rule of Law in inter-state relations within the region. The South China Sea is not the only area of dispute in East Asia. Improvements in one might hopefully lead to amelioration elsewhere.
In the case of the South China Sea, given the existence of multiple claimants, multilateral diplomacy is necessary. This means the involvement not just of other territorial claimants but also of other states who have varied interests in the South China Sea basin. So the member-states of ASEAN, the EAS and the ARF should be appropriately included for reasons of transparency and fairness to all concerned.
Since we are far from a peaceful, final, and lasting political settlement of the South China Sea disputes, it makes eminent sense to promote interim trust and confidence-building measures and other practical initiatives.
These may not touch on borders or sovereignty questions, but would instead focus on such areas as fishing, marine environment, the safety of shipping and the avoidance of collisions and other untoward incidents at sea.
However, we must take great care about resource-sharing arrangements. We must ensure that they conform with the Philippine Constitution and do not serve to undermine the Arbitral Ruling. Indeed, joint exploitation is so sensitive an issue we really should create a multisectoral consultative body, with our best legal minds, to assist the Administration in developing this initiative. It behoves us moreover to be transparent in our intentions.
The attitude of caution should also be present when we accept Chinese loans. Our country obviously needs greater investments to modernize infrastructure and sustain our growth to increase employment. Nonetheless, we should remain mindful of the numerous reports regarding so-called debt traps involving the injudicious use of loans from China in various countries.
Our ultimate objective is to lay the foundations for predictability and stability. All we do before that are steps on the way to that objective, accomplished within a framework of diplomatic dialogue and cooperation reinforced by what should be a common commitment to the Rule of Law.
The Rule of Law is the only principle that can transcend the interests of various jurisdictions in the sphere of international relations. If we do not adhere to the Rule of Law, then we consign our regional affairs to the clash of national interests without rules. The regional order would then be one where the strong will impose on the weak, and the regional order will be designed not to serve our shared interests in a prosperous and progressive future but the rival interests of great powers.
The Philippines took a giant step in promoting the Rule of Law in our region, and indeed, for the whole world by recourse to Arbitration.
We are now at the crossroads of an opportunity which we should not let fall from our grasp. We are also beset by threats on all sides. As I said at the beginning, there are those not happy, for reasons right and wrong, with the current status quo in many areas.
The unifying principle that would help most in containing and eventually resolving international disputes is a solid adherence to the Rule of Law, through the different instruments and mechanisms that codify, explain and operationalize it.
Of course, this includes UNCLOS and the Arbitral Ruling that clarified critical points of its application in the South China Sea.
In conclusion, permit me to humbly leave a suggested approach on the table. As we continue to urgently request our government to seek a resolution from the UN General Assembly to have China abide by the arbitral outcome, Filipino citizens can and should continue to discuss the subject. Not only at home, but with our friends and allies overseas.
This can be done with think tanks, universities, CSOs and peoples organizations in a positive spirit of mutual engagement. I respectfully invite you, members of the Ateneo community, to join us in exploring – if you will - the various options on how we can move forward to pursue our respective entitlements and to make our region a safer place.
One major purpose of our think tank entity - the Stratbase ADR Institute - is not to work at cross-purposes with the Administration. Rather, it is to help keep this singular legal achievement of our Republic in the public mind so all people can explore it’s full potential for consolidating the international Rule of Law.
The future may be unclear and uncertain today. But fidelity to the Rule of Law and believing that right is might would buttress a truly independent foreign policy.
Finally, how can each of us be helpful? We can help by understanding what is happening, by adding our voices to defend what is ours and by taking a united stand in upholding the rule of law and doing what is right.
x x x."
Marcosian economic myths
See - https://www.rappler.com/thought-leaders/212487-inflation-rate-philippines-during-marcos-regime
"x x x.
[ANALYSIS] Golden age? Inflation reached 50% during the Marcos regime
The last thing the country needs right now is a return of the Marcoses to Malacañang. One way we can prevent that is by tirelessly debunking the Marcosian economic myths.
By JC Punongbayan
Published 12:10 PM, September 21, 2018
Updated 4:31 PM, September 22, 2018
Today, September 21, is as good a time as any to look back at the deleterious economic impacts of the Marcos regime.
I wrote before that, viewed from the lens of various economic data, the Marcos years can hardly be called the country’s “golden age.” In fact, during that time, we experienced the country’s worst economic downturn since World War II. (READ: Marcos years marked ‘golden age’ of PH economy? Look at the data)
But one other aspect I haven’t yet explained is that the regime also saw the country’s highest inflation rate (inflation being an economic statistic that measures how fast prices are rising).
This is especially relevant now since inflation in August 2018 was the highest in over 9 years and the highest in ASEAN.
Some have tried, in fact, to belittle this recent rise of inflation by saying it’s hardly the worst we’ve had in history. This claim is corroborated by data: inflation even peaked at 50.3% in 1984 (see Figure 1). Hence, some say 6.4% is nothing to bemoan.
But this is a poor way to justify recent inflation: the government’s inflation target this year is 2% to 4%, not 50.3%.
Why, though, did inflation reach a whopping 50.3% in 1984? What circumstances led to such a ridiculously high inflation rate?
Defending the exchange rate
To understand this, we have to zero in on the link between inflation and the exchange rate.
Bear in mind that we pay imported goods in foreign currencies like the US dollar. So when the peso weakens (say, from P50 to P54 per USD), we have to pay more pesos for the same amount of imports. These goods fetch higher prices and thus stoke domestic inflation.
The main difference in the 1950s and 1960s, however, was that the government then actively pursued a “fixed exchange rate.”
This means that, rather than allow the peso-dollar exchange rate to fluctuate freely according to the law of supply and demand, the government intervened in the market and tried its very best to fix it at a certain level.
A fixed exchange rate was desirable then because of the government’s overarching industrial policy, called “import substituting industrialization” (ISI). In essence, ISI fueled domestic industry and manufacturing primarily through the importation of raw materials, parts, and components.
By making the peso artificially strong, a fixed exchange rate made imports artificially cheap, thus facilitating ISI.
But maintaining a fixed exchange rate was no mean feat. To achieve this, government had to force exporters to surrender their dollar earnings to the government, a policy that prevailed from 1949 up to 1961 and was widely viewed by exporters and other business owners as unfair and heavy-handed.
Thus, there was pressure for government to pursue exchange rate “decontrol,” and President Macapagal pursued this (albeit only partially).
Figure 2 shows the historical peso-dollar exchange rate. Notice that from P2 per USD in 1961, the exchange rate was “devalued” to P3.9 per USD in 1962.
But the peso’s sudden devaluation – although seemingly small – stoked inflation and made life harder for Filipinos. Inflation was just 1.6% in 1961, but it rose fivefold to 8.2% by 1964. At the same time, exporters were clamoring for full decontrol, rather the partial one Macapagal implemented.
Enter then-Senate president Ferdinand Marcos, who latched onto this economic debate and decried the inflation induced by Macapagal’s devaluation.
Long story short, Marcos successfully turned this economic issue into a political one, and this helped to pave his own path to the presidency in 1965.
Double-digit inflation
But things were no better during Marcos’s time. In fact, things took a turn for the worse.
In Figure 1, notice that inflation reached double-digits during the Marcos years: it peaked in 1971 (21.4%), in 1974 (34.2%), and again in 1984 (50.3%). Why?
For one thing, Marcos pursued massive government spending since his first term (1965 to 1969). He also continued the protectionist industrial policies of the past, which implied that imports remained well in excess of exports.
Both these strategies depleted our foreign currency reserves to alarming levels in the late 1960s. This deterioration could have been abated if the peso were free to adjust according to supply and demand. But then it was still adamantly fixed.
Hence, there was mounting pressure for government to abandon the fixed exchange rate.
Ultimately, government succumbed. Our fast-depleting reserves could only be replenished by borrowing from the International Monetary Fund (IMF), but they would lend only if the Philippine government devalued its peso once more.
Thus, in Figure 2, you see that the exchange rate changed from P3.9 to P6.4 per USD in 1970. At the time government also abandoned a fixed exchange rate regime in favor of a “managed float,” where the exchange rate was allowed a little room to fluctuate.
However, just like in 1962, this devaluation – along with a slew of devastating typhoons – led to an inflation spike: inflation reached its first double-digit level at 14.4% in 1970, followed by 21.4% in 1971.
Inflation would peak again at 34.2% in 1974, but this was largely because of skyrocketing world oil prices.
Debt moratorium
But what really led to the historically high 50.3% inflation rate in 1984 was the country’s worst postwar economic crisis, brought about by Marcos’ pernicious policy of debt-driven growth and crony capitalism.
There’s no space here to give justice to the details of the Marcosian economic crisis (a good place to start is the 1984 “white paper” of UP School of Economics faculty members).
But it will suffice to say that we came to a point where we buried ourselves in so much debt that we just said in 1983 we couldn’t pay any of it (a so-called “debt moratorium”).
This, of course, did not reflect well on our global standing as a borrower, and no lender dared touch us with a 10-foot pole.
We had no choice but to secure another round of emergency funds from the IMF, but this time they were stricter and lent only on the condition of a painful – if harsh – devaluation of the peso. Hence, the movement from P10 to P14 per USD in 1983.
The paucity of foreign currency reserves meant we could import but a few capital goods from abroad. Together with the inevitable rise on interest rates (which further stifled economic activity), this precipitated the country’s worst postwar recession, where the economy contracted by 7% for two straight years, in 1984 and 1985 (Figure 3).
This episode of stagnation and high inflation – also called “stagflation” – was a double whammy, a perfect economic storm from which Filipinos’ average incomes didn’t recover until two decades later.
Does anyone still think that this era was the Philippine economy’s “golden age”?
Debunking the myths
Record-high inflation in 1984 was just the tip of the iceberg that was the Marcosian socioeconomic crisis.
The spike in poverty and underemployment, the wanton disregard for human lives and human rights, the erosion of democratic institutions, and the wide-scale corruption of both the public and private sectors – all these belie claims that the Marcos years marked the country’s “golden age.”
And yet, sadly, such myths persist today. This is evidenced by the proliferation of online memes, textbooks that whitewash the Marcos regime, or the near-win of Bongbong Marcos in 2016.
The last thing the country needs right now is a return of the Marcoses to Malacañang. One way we can prevent that is by tirelessly debunking the Marcosian economic myths.
It may also be the easiest: we have the data firmly on our side. – Rappler.com
The author is a PhD candidate at the UP School of Economics. His views are independent of the views of his affiliations. Follow JC on Twitter: @jcpunongbayan.
x x x."
"x x x.
[ANALYSIS] Golden age? Inflation reached 50% during the Marcos regime
The last thing the country needs right now is a return of the Marcoses to Malacañang. One way we can prevent that is by tirelessly debunking the Marcosian economic myths.
By JC Punongbayan
Published 12:10 PM, September 21, 2018
Updated 4:31 PM, September 22, 2018
Today, September 21, is as good a time as any to look back at the deleterious economic impacts of the Marcos regime.
I wrote before that, viewed from the lens of various economic data, the Marcos years can hardly be called the country’s “golden age.” In fact, during that time, we experienced the country’s worst economic downturn since World War II. (READ: Marcos years marked ‘golden age’ of PH economy? Look at the data)
But one other aspect I haven’t yet explained is that the regime also saw the country’s highest inflation rate (inflation being an economic statistic that measures how fast prices are rising).
This is especially relevant now since inflation in August 2018 was the highest in over 9 years and the highest in ASEAN.
Some have tried, in fact, to belittle this recent rise of inflation by saying it’s hardly the worst we’ve had in history. This claim is corroborated by data: inflation even peaked at 50.3% in 1984 (see Figure 1). Hence, some say 6.4% is nothing to bemoan.
But this is a poor way to justify recent inflation: the government’s inflation target this year is 2% to 4%, not 50.3%.
Why, though, did inflation reach a whopping 50.3% in 1984? What circumstances led to such a ridiculously high inflation rate?
Defending the exchange rate
To understand this, we have to zero in on the link between inflation and the exchange rate.
Bear in mind that we pay imported goods in foreign currencies like the US dollar. So when the peso weakens (say, from P50 to P54 per USD), we have to pay more pesos for the same amount of imports. These goods fetch higher prices and thus stoke domestic inflation.
The main difference in the 1950s and 1960s, however, was that the government then actively pursued a “fixed exchange rate.”
This means that, rather than allow the peso-dollar exchange rate to fluctuate freely according to the law of supply and demand, the government intervened in the market and tried its very best to fix it at a certain level.
A fixed exchange rate was desirable then because of the government’s overarching industrial policy, called “import substituting industrialization” (ISI). In essence, ISI fueled domestic industry and manufacturing primarily through the importation of raw materials, parts, and components.
By making the peso artificially strong, a fixed exchange rate made imports artificially cheap, thus facilitating ISI.
But maintaining a fixed exchange rate was no mean feat. To achieve this, government had to force exporters to surrender their dollar earnings to the government, a policy that prevailed from 1949 up to 1961 and was widely viewed by exporters and other business owners as unfair and heavy-handed.
Thus, there was pressure for government to pursue exchange rate “decontrol,” and President Macapagal pursued this (albeit only partially).
Figure 2 shows the historical peso-dollar exchange rate. Notice that from P2 per USD in 1961, the exchange rate was “devalued” to P3.9 per USD in 1962.
But the peso’s sudden devaluation – although seemingly small – stoked inflation and made life harder for Filipinos. Inflation was just 1.6% in 1961, but it rose fivefold to 8.2% by 1964. At the same time, exporters were clamoring for full decontrol, rather the partial one Macapagal implemented.
Enter then-Senate president Ferdinand Marcos, who latched onto this economic debate and decried the inflation induced by Macapagal’s devaluation.
Long story short, Marcos successfully turned this economic issue into a political one, and this helped to pave his own path to the presidency in 1965.
Double-digit inflation
But things were no better during Marcos’s time. In fact, things took a turn for the worse.
In Figure 1, notice that inflation reached double-digits during the Marcos years: it peaked in 1971 (21.4%), in 1974 (34.2%), and again in 1984 (50.3%). Why?
For one thing, Marcos pursued massive government spending since his first term (1965 to 1969). He also continued the protectionist industrial policies of the past, which implied that imports remained well in excess of exports.
Both these strategies depleted our foreign currency reserves to alarming levels in the late 1960s. This deterioration could have been abated if the peso were free to adjust according to supply and demand. But then it was still adamantly fixed.
Hence, there was mounting pressure for government to abandon the fixed exchange rate.
Ultimately, government succumbed. Our fast-depleting reserves could only be replenished by borrowing from the International Monetary Fund (IMF), but they would lend only if the Philippine government devalued its peso once more.
Thus, in Figure 2, you see that the exchange rate changed from P3.9 to P6.4 per USD in 1970. At the time government also abandoned a fixed exchange rate regime in favor of a “managed float,” where the exchange rate was allowed a little room to fluctuate.
However, just like in 1962, this devaluation – along with a slew of devastating typhoons – led to an inflation spike: inflation reached its first double-digit level at 14.4% in 1970, followed by 21.4% in 1971.
Inflation would peak again at 34.2% in 1974, but this was largely because of skyrocketing world oil prices.
Debt moratorium
But what really led to the historically high 50.3% inflation rate in 1984 was the country’s worst postwar economic crisis, brought about by Marcos’ pernicious policy of debt-driven growth and crony capitalism.
There’s no space here to give justice to the details of the Marcosian economic crisis (a good place to start is the 1984 “white paper” of UP School of Economics faculty members).
But it will suffice to say that we came to a point where we buried ourselves in so much debt that we just said in 1983 we couldn’t pay any of it (a so-called “debt moratorium”).
This, of course, did not reflect well on our global standing as a borrower, and no lender dared touch us with a 10-foot pole.
We had no choice but to secure another round of emergency funds from the IMF, but this time they were stricter and lent only on the condition of a painful – if harsh – devaluation of the peso. Hence, the movement from P10 to P14 per USD in 1983.
The paucity of foreign currency reserves meant we could import but a few capital goods from abroad. Together with the inevitable rise on interest rates (which further stifled economic activity), this precipitated the country’s worst postwar recession, where the economy contracted by 7% for two straight years, in 1984 and 1985 (Figure 3).
This episode of stagnation and high inflation – also called “stagflation” – was a double whammy, a perfect economic storm from which Filipinos’ average incomes didn’t recover until two decades later.
Does anyone still think that this era was the Philippine economy’s “golden age”?
Debunking the myths
Record-high inflation in 1984 was just the tip of the iceberg that was the Marcosian socioeconomic crisis.
The spike in poverty and underemployment, the wanton disregard for human lives and human rights, the erosion of democratic institutions, and the wide-scale corruption of both the public and private sectors – all these belie claims that the Marcos years marked the country’s “golden age.”
And yet, sadly, such myths persist today. This is evidenced by the proliferation of online memes, textbooks that whitewash the Marcos regime, or the near-win of Bongbong Marcos in 2016.
The last thing the country needs right now is a return of the Marcoses to Malacañang. One way we can prevent that is by tirelessly debunking the Marcosian economic myths.
It may also be the easiest: we have the data firmly on our side. – Rappler.com
The author is a PhD candidate at the UP School of Economics. His views are independent of the views of his affiliations. Follow JC on Twitter: @jcpunongbayan.
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Tax Reform for Attracting Better and High-quality Opportunities (TRABAHO) Bill
See - https://business.mb.com.ph/2018/09/26/trabaho-bill-threatens-over-700000-ecozone-workers/
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TRABAHO Bill threatens over 700,000 ecozone workers
Published September 26, 2018, 10:00 PM
By Bernie Cahiles-Magkilat
At least 700,000 workers at the various economic zones in the country administered by the Philippine Economic Zone Authority (PEZA) are expected to lose their jobs once the Tax Reform for Attracting Better and High-quality Opportunities (TRABAHO) Bill is passed into law.
PEZA Director-General Charito B. Plaza said almost all of the PEZA registered enterprises are from the IT BPO and manufacturing sectors, which will bear the brunt of the TRABAHO Bill, which seeks to remove some of the tax incentives currently enjoyed by ecozone locators.
“Almost all are affected. The biggest jobs are from IT BPOs and Manufacturing who can easily transfer from their other branches in other countries,” said Plaza.
PEZA-registered enterprises directly employ over 1.490 million jobs times, but every job created at the ecozone would translate in the creation of 8 more indirect jobs from services providers such as logistics, maintenance workers, drivers, vendors, among others.
In addition, these companies also create new sectors in their industries resulting in additional job creation.
“The current TRABAHO Bill in its current form will eliminate more than 50 percent of the 1.49 million direct jobs we have,” Plaza pointed out.
“Our locators can easily move out their IT-business process management operations and even manufacturing can start transferring to their other branches in other countries if they are left with no choice.”
PEZA administers tax incentives to 74 manufacturing economic zone, 262 information technology parks/centers, 22 agro-industrial economic zone, 19 tourism ecozones, and 2 medical tourism parks/centers. PEZA enterprises account for 70 percent of the country’s merchandise exports and 80 percent of the total services exports.
What will happen to PEZA would be empty ecozones and IT park buildings as they lose their clients, she said.
Not only that, Plaza pointed out, industry clients, the logistics services providers, truckers, brokers and the domestic suppliers, facility and utility enterprises serving the exporters including farmers, and local suppliers are going to lose their businesses.
Already, investment pledges in PEZA across industries declined in the first semester this year. Approved projects for manufacturing activities decreased by 9.3 percent to P19.55 billion this year from P21.54 billion last year; information technology (IT) investment pledges likewise declined by 13.7 percent to P6.98 billion from P8.07 billion; planned investments for economic zone development also dropped 65.2 percent to P26.3 billion from P75.46 billion; and pledges in other sectors plunged by 98.4 percent to P234.5 million from P15.12 billion.
PEZA attributed the decline to a prevailing “panic mode” among its registered enterprises, which deferred their investments in 2017 because of the TRAIN [Package] 1, hoping that everything will be stabilized in 2018, only to be welcomed by TRAIN Package 2.
Under the Trabaho Bill or the Package 2, PEZA-registered enterprises, which are export-oriented, are expected to lose some of their perks like shorted income tax holiday and reduced years in their 5 percent tax on gross income earned instead of its perpetual application.
Senator Sonny Angara earlier warned that the Senate committee on ways and means, which he chairs, would not proceed with its deliberation of the Trabaho Bill unless the government can present definitive data on the impact on jobs.
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TRABAHO Bill threatens over 700,000 ecozone workers
Published September 26, 2018, 10:00 PM
By Bernie Cahiles-Magkilat
At least 700,000 workers at the various economic zones in the country administered by the Philippine Economic Zone Authority (PEZA) are expected to lose their jobs once the Tax Reform for Attracting Better and High-quality Opportunities (TRABAHO) Bill is passed into law.
PEZA Director-General Charito B. Plaza said almost all of the PEZA registered enterprises are from the IT BPO and manufacturing sectors, which will bear the brunt of the TRABAHO Bill, which seeks to remove some of the tax incentives currently enjoyed by ecozone locators.
“Almost all are affected. The biggest jobs are from IT BPOs and Manufacturing who can easily transfer from their other branches in other countries,” said Plaza.
PEZA-registered enterprises directly employ over 1.490 million jobs times, but every job created at the ecozone would translate in the creation of 8 more indirect jobs from services providers such as logistics, maintenance workers, drivers, vendors, among others.
In addition, these companies also create new sectors in their industries resulting in additional job creation.
“The current TRABAHO Bill in its current form will eliminate more than 50 percent of the 1.49 million direct jobs we have,” Plaza pointed out.
“Our locators can easily move out their IT-business process management operations and even manufacturing can start transferring to their other branches in other countries if they are left with no choice.”
PEZA administers tax incentives to 74 manufacturing economic zone, 262 information technology parks/centers, 22 agro-industrial economic zone, 19 tourism ecozones, and 2 medical tourism parks/centers. PEZA enterprises account for 70 percent of the country’s merchandise exports and 80 percent of the total services exports.
What will happen to PEZA would be empty ecozones and IT park buildings as they lose their clients, she said.
Not only that, Plaza pointed out, industry clients, the logistics services providers, truckers, brokers and the domestic suppliers, facility and utility enterprises serving the exporters including farmers, and local suppliers are going to lose their businesses.
Already, investment pledges in PEZA across industries declined in the first semester this year. Approved projects for manufacturing activities decreased by 9.3 percent to P19.55 billion this year from P21.54 billion last year; information technology (IT) investment pledges likewise declined by 13.7 percent to P6.98 billion from P8.07 billion; planned investments for economic zone development also dropped 65.2 percent to P26.3 billion from P75.46 billion; and pledges in other sectors plunged by 98.4 percent to P234.5 million from P15.12 billion.
PEZA attributed the decline to a prevailing “panic mode” among its registered enterprises, which deferred their investments in 2017 because of the TRAIN [Package] 1, hoping that everything will be stabilized in 2018, only to be welcomed by TRAIN Package 2.
Under the Trabaho Bill or the Package 2, PEZA-registered enterprises, which are export-oriented, are expected to lose some of their perks like shorted income tax holiday and reduced years in their 5 percent tax on gross income earned instead of its perpetual application.
Senator Sonny Angara earlier warned that the Senate committee on ways and means, which he chairs, would not proceed with its deliberation of the Trabaho Bill unless the government can present definitive data on the impact on jobs.
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India’s Top Court Limits Sweep of Biometric ID Program
See - https://www.nytimes.com/2018/09/26/technology/india-id-aadhaar-supreme-court.html
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India’s Top Court Limits Sweep of Biometric ID Program
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India’s Top Court Limits Sweep of Biometric ID Program
The government says its identification system for public services has already saved billions of dollars, but critics are worried about data security and a surveillance state.Published OnSept. 25, 2018
By Vindu Goel
Sept. 26, 2018
MUMBAI, India — In a landmark ruling on Wednesday, India’s Supreme Court placed strict limits on the government’s national biometric identity system while also finding that the sweeping program did not fundamentally violate the privacy rights of the country’s 1.3 billion residents.
A five-justice panel of the court decided by 4-1 to approve the use of the program, called Aadhaar, for matters involving the public purse, such as the distribution of food rations and other government benefits and the collection of income taxes.
But the panel struck down Prime Minister Narendra Modi’s efforts to require the digital ID for other purposes, including verifying the identity of students taking exams, and established new protections meant to prevent the government from misusing the data in the name of national security.
The justices also threw out a powerful provision in the 2016 Aadhaar Act that had allowed private companies like banks and cellphone companies — sometimes at the government’s behest — to use the ID to verify customer identities. That was at least a temporary blow to the dreams of technology billionaires, like Nandan Nilekani and Vinod Khosla, who saw the system as crucial to a new generation of digital businesses like online vehicle insurance and pre-employment background checks.
Aadhaar, a Hindi word meaning “foundation,” was conceived as a difficult-to-forge ID that would reduce fraud and improve the delivery of government welfare programs. The intention was to scan the fingerprints, irises and faces of every Indian and then use those unique biometric attributes to check identity when someone picked up subsidized rice or joined a government work program.
In its 1,448-page decision — broken up into two concurring opinions and a stinging dissent — the court relied on precedents from around the world to set broad parameters for how the ID system could be used in India, a country that is adding tens of millions of new internet users a year but has few laws governing data protection.
Writing for the majority, Justice A.K. Sikri said that, with the court’s restrictions, “we find that the Aadhaar Act has struck a fair balance between the right of privacy of the individual with right to life of the same individual as a beneficiary.”
But the court also urged the government to further clarify those rights through a new national data protection law that is currently being debated.
The ruling on Wednesday affects a vast swath of Indian life, from who can collect benefits like food assistance and pensions to how mobile phone providers create new accounts. Some states, such as Andhra Pradesh, had planned to integrate the ID system into far-reaching surveillance programs, something that will now be difficult, given the court’s restrictions on how the data can be used.
By Vindu Goel
Sept. 26, 2018
MUMBAI, India — In a landmark ruling on Wednesday, India’s Supreme Court placed strict limits on the government’s national biometric identity system while also finding that the sweeping program did not fundamentally violate the privacy rights of the country’s 1.3 billion residents.
A five-justice panel of the court decided by 4-1 to approve the use of the program, called Aadhaar, for matters involving the public purse, such as the distribution of food rations and other government benefits and the collection of income taxes.
But the panel struck down Prime Minister Narendra Modi’s efforts to require the digital ID for other purposes, including verifying the identity of students taking exams, and established new protections meant to prevent the government from misusing the data in the name of national security.
The justices also threw out a powerful provision in the 2016 Aadhaar Act that had allowed private companies like banks and cellphone companies — sometimes at the government’s behest — to use the ID to verify customer identities. That was at least a temporary blow to the dreams of technology billionaires, like Nandan Nilekani and Vinod Khosla, who saw the system as crucial to a new generation of digital businesses like online vehicle insurance and pre-employment background checks.
Aadhaar, a Hindi word meaning “foundation,” was conceived as a difficult-to-forge ID that would reduce fraud and improve the delivery of government welfare programs. The intention was to scan the fingerprints, irises and faces of every Indian and then use those unique biometric attributes to check identity when someone picked up subsidized rice or joined a government work program.
In its 1,448-page decision — broken up into two concurring opinions and a stinging dissent — the court relied on precedents from around the world to set broad parameters for how the ID system could be used in India, a country that is adding tens of millions of new internet users a year but has few laws governing data protection.
Writing for the majority, Justice A.K. Sikri said that, with the court’s restrictions, “we find that the Aadhaar Act has struck a fair balance between the right of privacy of the individual with right to life of the same individual as a beneficiary.”
But the court also urged the government to further clarify those rights through a new national data protection law that is currently being debated.
The ruling on Wednesday affects a vast swath of Indian life, from who can collect benefits like food assistance and pensions to how mobile phone providers create new accounts. Some states, such as Andhra Pradesh, had planned to integrate the ID system into far-reaching surveillance programs, something that will now be difficult, given the court’s restrictions on how the data can be used.
The decision could also have influence beyond India’s borders, as other countries, including Britain and the Philippines, try to balance privacy against the needs of government in their own national identity and surveillance programs.
“India is a great case study,” said C.V. Madhukar, who leads the digital identity efforts of the Omidyar Network, an investment firm based in California. “The Supreme Court’s thinking on this so far can provide guidance to many countries in Africa and the developing world, even the United States.”
Mr. Modi’s Bharatiya Janata Party and the opposition Indian National Congress, which began the Aadhaar program nearly a decade ago when it was in power, both claimed the ruling as a victory.
Rahul Gandhi, who is challenging Mr. Modi in the 2019 national elections, said the court had rejected the current government’s use of Aadhaar as “a tool of oppression and surveillance.”
However, Mr. Modi’s finance minister, Arun Jaitley, said the court had recognized the vast savings to the taxpayers from the program, which he estimated at $12 billion a year, from weeding out fake or duplicate recipients of government benefits.
“Technology as a tool of governance, as an instrument of conferring benefits to people, as an instrument of revenue collection, I think is a concept which nobody now really can deny,” he said. “We were entering uncharted areas, and one of the purposes of judicial review is what is the direction in which you can move and how much.”
Despite its original goal of improving government services and creating a simple universal ID, the Aadhaar program quickly became controversial.
Tens of millions of the initial enrollments were done by poorly trained or corrupt agents who recorded incorrect biometric or other personal data like birth dates. Sloppy security practices by state and local governments led to more than 200 data breaches of sensitive information, including Aadhaar numbers.
After Mr. Modi’s government made participation in Aadhaar mandatory for recipients of government benefits, millions of the poorest Indians were denied vital food rations when distribution shops had trouble reading fingerprints from work-worn hands or could not connect to the central server through India’s unreliable cellphone networks.
At least 25 Indians died of starvation after Aadhaar-related verification problems, according to a tally by one professor, Reetika Khera, who has conducted extensive field research on the program. Some local governments, such as New Delhi’s, stopped using the system for food programs.
Proponents argued that such problems were just teething pains. They said that a digital ID would be transformational in a country where hundreds of millions of poor people have long lacked a reliable, universally accepted way of proving who they are. For private companies like cellphone providers, Aadhaar turned a paper-intensive, two-day process of verifying a new customer’s identity into a 30-second fingerprint scan.
The court, which held 38 days of hearings in the spring on more than 30 challenges to the law, noted the security lapses in its decision and acknowledged that some Indians were losing important benefits because of the reliance on digital identification. But the court said it trusted the government to resolve the problems.
Shyam Divan, the veteran lawyer who kicked off the oral arguments for the plaintiffs challenging the law, said in an interview that the court had “contained” the government’s efforts to use Aadhaar to build a surveillance state. “And they have completely knocked out the private sector from this,” he said.
Aadhaar’s opponents also took heart in a dissent written by Justice D.Y. Chandrachud, who wrote the lead opinion last year in a related case that was the first to establish a fundamental right to privacy for Indians. In his dissent, Mr. Chandrachud embraced most of the challengers’ arguments and said that the Aadhaar Act was unconstitutional.
Srikanth Nadhamuni, the chief executive of Khosla Labs, which set up a business to offer private Aadhaar authentication services, said that the court’s ban on the commercial use of the digital ID was disappointing and that he hoped lawmakers would find a way to restore it in the coming data-protection legislation.
“There are a lot of small companies who need verification done,” he said, adding that the cost of performing such verification via an Aadhaar scan was 10 rupees, or about 14 cents, compared with 1,000 rupees for traditional paper verification.
For ordinary Indians, who had faced ever-increasing demands for their digital ID cards, the court’s limits could bring some peace.
Sat Pal, a taxi driver in New Delhi, said he had been asked to produce his Aadhaar everywhere, including to get his driver’s license and vehicle registration.
“Lately they started demanding it at school admission,” he said. “I went to my bank to ask for a checkbook. They demanded Aadhaar. I asked them why. They said you have to produce it. So it became a tool for harassing people. Now it will be a big relief.”
Hari Kumar contributed reporting from New Delhi.
Follow Vindu Goel on Twitter: @vindugoel.
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“India is a great case study,” said C.V. Madhukar, who leads the digital identity efforts of the Omidyar Network, an investment firm based in California. “The Supreme Court’s thinking on this so far can provide guidance to many countries in Africa and the developing world, even the United States.”
Mr. Modi’s Bharatiya Janata Party and the opposition Indian National Congress, which began the Aadhaar program nearly a decade ago when it was in power, both claimed the ruling as a victory.
Rahul Gandhi, who is challenging Mr. Modi in the 2019 national elections, said the court had rejected the current government’s use of Aadhaar as “a tool of oppression and surveillance.”
However, Mr. Modi’s finance minister, Arun Jaitley, said the court had recognized the vast savings to the taxpayers from the program, which he estimated at $12 billion a year, from weeding out fake or duplicate recipients of government benefits.
“Technology as a tool of governance, as an instrument of conferring benefits to people, as an instrument of revenue collection, I think is a concept which nobody now really can deny,” he said. “We were entering uncharted areas, and one of the purposes of judicial review is what is the direction in which you can move and how much.”
Despite its original goal of improving government services and creating a simple universal ID, the Aadhaar program quickly became controversial.
Tens of millions of the initial enrollments were done by poorly trained or corrupt agents who recorded incorrect biometric or other personal data like birth dates. Sloppy security practices by state and local governments led to more than 200 data breaches of sensitive information, including Aadhaar numbers.
After Mr. Modi’s government made participation in Aadhaar mandatory for recipients of government benefits, millions of the poorest Indians were denied vital food rations when distribution shops had trouble reading fingerprints from work-worn hands or could not connect to the central server through India’s unreliable cellphone networks.
At least 25 Indians died of starvation after Aadhaar-related verification problems, according to a tally by one professor, Reetika Khera, who has conducted extensive field research on the program. Some local governments, such as New Delhi’s, stopped using the system for food programs.
Proponents argued that such problems were just teething pains. They said that a digital ID would be transformational in a country where hundreds of millions of poor people have long lacked a reliable, universally accepted way of proving who they are. For private companies like cellphone providers, Aadhaar turned a paper-intensive, two-day process of verifying a new customer’s identity into a 30-second fingerprint scan.
The court, which held 38 days of hearings in the spring on more than 30 challenges to the law, noted the security lapses in its decision and acknowledged that some Indians were losing important benefits because of the reliance on digital identification. But the court said it trusted the government to resolve the problems.
Shyam Divan, the veteran lawyer who kicked off the oral arguments for the plaintiffs challenging the law, said in an interview that the court had “contained” the government’s efforts to use Aadhaar to build a surveillance state. “And they have completely knocked out the private sector from this,” he said.
Aadhaar’s opponents also took heart in a dissent written by Justice D.Y. Chandrachud, who wrote the lead opinion last year in a related case that was the first to establish a fundamental right to privacy for Indians. In his dissent, Mr. Chandrachud embraced most of the challengers’ arguments and said that the Aadhaar Act was unconstitutional.
Srikanth Nadhamuni, the chief executive of Khosla Labs, which set up a business to offer private Aadhaar authentication services, said that the court’s ban on the commercial use of the digital ID was disappointing and that he hoped lawmakers would find a way to restore it in the coming data-protection legislation.
“There are a lot of small companies who need verification done,” he said, adding that the cost of performing such verification via an Aadhaar scan was 10 rupees, or about 14 cents, compared with 1,000 rupees for traditional paper verification.
For ordinary Indians, who had faced ever-increasing demands for their digital ID cards, the court’s limits could bring some peace.
Sat Pal, a taxi driver in New Delhi, said he had been asked to produce his Aadhaar everywhere, including to get his driver’s license and vehicle registration.
“Lately they started demanding it at school admission,” he said. “I went to my bank to ask for a checkbook. They demanded Aadhaar. I asked them why. They said you have to produce it. So it became a tool for harassing people. Now it will be a big relief.”
Hari Kumar contributed reporting from New Delhi.
Follow Vindu Goel on Twitter: @vindugoel.
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