Fool’s errand

President Rodrigo Roa Duterte has been a monster for labor. In a sense, the effigies at the Labor Day’s demonstrations were fitting. He did gift the sector with this latest Executive Order No. 51 and he will certify to Congress the bill on workers’ security of tenure. 

Yet he is getting no love. The labor sector expects him to carry the torch for them but government also needs to balance the needs of management. Thus goes  the tripartite paradigm of industrial peace.

Ending ENDO requires congressional action. Workers are frustrated because of PRRD’s campaign  promise. Damned if you do, damned if you don’t? Don’t count him out yet. We know how PRRD loves to damn the dos, the don’ts and all the torpedoes. Congress can move as fast as a locomotive. A Duterte directive aids combustion as effectively as engine fuel of the other kind. 

As it is, in the two years since he has assumed office, PRRD has done more for labor than his predecessors: DOLE Department Order 174-17 absolutely prohibiting “labor only” contracting by contractors without substantial capital, disallowing the same even if justified by good faith exceptions or exigencies of the service, and mandating payment of separation benefits; the DOLE crackdown on big companies – Jollibee, SM, KFC, McDonald’s, PLDT; and a review of bilateral agreements to guard against the kafala system exploiting our OFWs in the Middle East.

It is not fair to the man to judge his efforts as walang silbi.

Hear no evil... “It is not the policy of government to antagonize other nations.” This has been mantra in our posture against China, now Kuwait and even Japan in the comfort woman statue context. The actions of these foreign nations relative to us are hardline and hostile. Rather than confront them with righteous indignation, we let it slide.

In the case of the disappearing statue, we are not the only nation to erect a monument to memorialize the wartime indignation suffered by mothers, sisters and daughters. South Korea, Taiwan, Australia, China, the US and Germany have done the same. Sadly, ours has become the only one to suffer the ignominy of being removed. There isn’t even a marker now. Better the unknown soldiers – at least they have their tombstone.

During the second world war, this policy of concession was known by another name. Does it serve our interests in the long run to project this meek image? How do we lift this albatross from our necks when we finally decide to stand up? There are limits to the policy of antagonizing ourselves.

None of us are privy to the motives that animate Presidential action. Surely, he has a clearer view of the entire chess board. Let’s hope that he has a better endgame in the offing, consistent always with national interest. These sacrifices do exact a heavy toll.

Exporting tokhang. The Kuwaiti imbroglio is being painted as a case of heroic intention, idiotic implementation. This verdict, but for that nasty video uploading, is premature. The reports coming out are still conflicting. Do we know the true backstories in those three (of 38) abuse cases where the DFA rapid response rescue team failed to coordinate with the authorities? Did the Kuwait government fail to take action on their cases even though duly informed? 

Our diplomatic missions abroad have myriad duties. The duty to protect the interest of its nationals has been enhanced by the Filipino diaspora. The Vienna Convention allows this within the limits permitted by International law. 

To be fair, a critique of the actions of the DFA should focus on our nationals’ interests as much as on international law’s limits. Vigilanteism is inexcusable when the authorities do not fail you. And if they do?

Supreme liberty. The decision in Manalo v. Republic shines a light on the long existing backdoor access to divorce. This is the Family Code provision, Art. 26 (2), which would allow a Filipino to remarry if it is his/her foreign spouse that obtains a divorce abroad. When desperate country men sought to twist this provision to their benefit, the Supreme Court would unfailingly steer clear of applying it beyond its scope. Last week, in a watershed moment, the Court decreed that even if it is the Filipino that applies for the divorce abroad, he/she will be free to marry again. For family relations, it is as dramatic as the imagery of Kim Jong un and Moon Jae in stepping over the demarcation line separating the Koreas.

It was truly an enlightened verdict. The divorce obtained by the Filipino abroad capacitates the alien spouse to remarry. Why should the Filipino remain in marriage jail even if the alien spouse has been sprung?

Conventional wisdom. The answer, of course, would be to ask Congress. Otherwise stated, dura lex sed lex. The Philippines is a mixed civil and common law jurisdiction. Like other civil law countries, we are ruled primarily by statutes like Art. 26(2). In a nod to our common law US heritage, our courts may also decide in equity where there is no statute applicable. The Civil Code  recognizes this imperative in Article 9: “No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.”

The Manalo decision has yet to be released by the Supreme Court but the Court of Appeals ruling that it upholds apparently decided the question on grounds of “justice,” even if the legal provision recognizes only the action of the alien spouse. How does this reconcile with “equity … must be exercised in the absence of law, not against it”?  Aequetas nunquam contravenit legis.

Manalo avoids an unjust result but it treads the fine line between equity jurisdiction and outright judicial legislation. If you would prod Congress to react to the Supreme Court’s overreach, this would be as good a test case as the Chief Justice’s Quo Warranto for refurbishing the barriers between the departments.