Wednesday, November 28, 2007

Perspective 5 (An Open Letter)

My God knows me too well; after all, He created me, He knows my heart and its ways. (Ps. 139)

Right after my last post, I left for a hearing. On the way there, I heard Him clearly and it was all I could do to not hit the car in front of me.

"The tongue is like a fire."

I had to pull over and pray.

In the past days, I've blogged about something that has been much debated, much discussed and much forwarded. It has generated heated exchanges and passionate opinions.

In my heart, I knew that I was speaking of things that were true and were right. Yet, even after I replied to the group's answer to me (see previous post), I did not feel at peace, in fact, I felt an even heavier burden.

My God spoke to me further while I prayed:

"Tame your tongue and do not let it control you. The purity of your heart's intention cannot justify the words you have spoken."

As the season of Advent approaches, one of the many things I had resolved to do was to be at peace with myself and with others; and it is ironic that as Advent approaches, I was not at peace and was, in fact, the source of discord. And all because of my tongue or, in this case, my "pen."

There is a right way to talk about the things that are wrong and a wrong way to talk about the things that are right. I realized that I may have chosen to talk about the things that are right in the wrong way and, in the process, have hurt and caused pain to people.

As I texted some of those concerned, there is no justification for disrespect even as there may be a basis for disagreement. And so, before I come before my God any further, I want to make things right with my brethren--for after all, all of us are children of God (yes, even you Florin).

To Harry, Florin, Barry, Ex Dean Bart, Ex Dean Merlin, Ex Dean Raul, Beth, JJ, Danny, Prof Ed, Prof Sison and Prof Doming,

I have used harsh words against some of you specifically and while there remains basis for disagreement among us, I realize there is no justification for disrespect. We still disagree on many things and you will still not be able to convince me to agree on many things (choice of the next dean, perhaps ) but that disagreement does not need to end in disagreeability. In the same way that I have spoken publicly against you, allow me to publicly apologize to you

It is your choice to accept and I cannot force you to accept. But I extend this apology sincerely, humbly and freely with the hope that we might be able to disagree about the Deanship and your choice for the next Dean under better circumstances (perhaps with Florin buying coffee) and perhaps with Dean Carlota around.

Holier than Thou (Their title, not mine)

This is the response to my post (see "Ingratitude. In Gratitude") from Harry, Florin, Barry, Prof. Pangalangan, Former Dean Pangalangan, Former Dean Magallona, Former Dean Carale, Danny Concepcion, Professor Labitag, Professor Sison (some of those mentioned as having signed the statement posted; the two Profs. Disini, JJ and Domingo, did not sign).

It is not my intention to reply point for point as I stand by my statement completely.

Let me simply say two things:

1. I am pleasantly surprised that Florin Hilbay, who teaches Atheism in place of legal theory in first year, would quote scripture to me, and
2. I am mildly disappointed that Dean Pangalangan would not appreciate the irony (as my post on ingratitude was intended to be ironic) of his lecturing to me on "patronage politics."
3. And of course, I am shocked that "farce" would not include a professor who, in place of teaching the Bill of Rights in Consti Law 2 would teach everything BUT the Bill of Rights and leave his students to figure out for themselves what the Bill of Rights is.
4. Finally, I do miss being called "Teddy", something that my REALLY GOOD FRIENDS call me.

I would want to say "I am sorry" to the two former Deans Carale and Magallona but I cannot. I look up to Dean Magallona but, on this one, I disagree totally with his signing the statement and I have given my reasons why. I will apologize, however, for using strong language--stronger perhaps than they are used to.

The statement condemns ME (they give me too much credit, really) for subverting the process. The last time I looked, everyone was free to send any letter, petition, request or what have you to the BOR; now, whether the BOR would grant it--that is another question. What was the group afraid of? Now had I RIGGED THE BOR to change the decision of the Chancellor, then that would have been subverting the process. I think they give me too much credit and the BOR too little.

Enough of me. Let's hear them:

27 November 2007

Dear Teddy,

OUR STATEMENT STOOD ON THE PRINCIPLE that the Search Process must not be subverted. Instead of answering us on the level of principle, you attacked us as persons, labeled us as ingrates, and viewed it all as the politics of patronage.

You have committed two basic mistakes.

FIRST, YOU GOT THE FACTS WRONG. You say that we “demand[ed] that Dean Carlota not be allowed any extension of his term beyond his birthday.”

THAT IS FALSE. We attach a copy of the Statement. About the agreement among the faculty members and the UP Diliman Chancellor on the Search Process for the new Dean, we expressly stated:

“The agreement reached last November 2 allows Dean Carlota to join the search as a nominee seeking extension of his term, provided he submit (just like any other nominee) to an open, transparent, and deliberative process.”

“We are not requesting the Board to reject outright Dean Carlota’s request for extension; we are simply appealing that the Board respect the university-sanctioned, agreed-upon selection process and make its decision after deliberative mechanisms within the community directly affected be first implemented to ensure that the selection process is participatory and meaningful for the stakeholders.”

All we asked was for Dean Carlota to let the official Search Process take its course. Instead, you preferred to subvert the official Search Process and to sneak into the Board of Regents a petition to extend him, by-passing the already on-going Search Process. Your attempt to take the moral high ground with dirty hands reeks of duplicity.

YOU GOT THE FACTS WRONG A SECOND TIME. Dean Carlota already got an extension of his teaching (i.e. his faculty appointment). The Academic Personnel Committee, with the vote of some of the signatories to our Statement, gave him the maximum extension. We are grateful to those who have long served the law school, which is why it has been the consistent policy to extend retiring faculty.

It was Dean Carlota who required senior faculty members to write him a letter requesting an extension. Yet when the Committee asked him to do likewise, he did not “request.” He merely “declared” his intention to teach beyond the mandatory retirement age. Despite the imperiousness, the Committee obliged him.

But that Committee doesn’t have the power to recommend the extension of his term as Law Dean (i.e. his administrative assignment), which is now the subject of the Search Process.

SECOND, DEAN CARLOTA FACES MANDATORY RETIREMENT BY OPERATION OF LAW. Teddy, if you wish to carve out exceptions to the law, it is YOUR burden to explain why, NOT OURS.

He became Dean in October 2005, aware that he would turn 65 in December 2007 and could not complete the usual 3-year term (in October 2008). He has categorically declared before several faculty members that he was not interested in being extended beyond December 2007. Why blame us that we acted upon his own declaration of disinterest? “Public office is not the private reserve of public officers.”

We are amazed that you will shame our senior colleagues, one “who practically begged for an extension so that he could hold on to his administrative post” and another who received an extension of his faculty appointment. We are sorry, Ted, but their votes were not for sale, sorrier still that you thought they were.

SADLY, YOU SEE COLLEGE GOVERNANCE AS NOTHING BUT A MATTER OF PATRONAGE POLITICS, of “utang na loob”, viewing everything in terms of “betrayal” or “gratitude”, and excluding the possibility of a principled stand on issues that go beyond personal loyalty. This is why you cast in moralizing terms the decision of your colleagues to allow for an open debate as to who should lead the law school. What is so morally abhorrent, Teddy, about inviting others to a conversation on policy options for the leadership of a law school?

Having blinded yourself to the tyranny of your own point of view, you label as ungrateful those who you think support other leaders and then demonize those who disagree with you.

YOU ASK: "WHY THE RUSH?". There was no rush; it was merely the straightforward application of the law. The Chancellor himself, during the meeting with the law faculty, stated that the search process is already late because it should have begun 3 months before the end of the incumbent’s term.

INDEED WE ASK YOU: “WHY THE RUSH, TEDDY?” Why agree to a Search Process when we were face to face at a faculty meeting – a Process that will start with the College constituents, then the Chancellor, then the UP President, and then the BOR – and then betray that process and go directly to the BOR?

You applaud when the law is applied “chapter and verse.” Now the law has caught up with you and Dean Carlota, and you wish to skip entire chapters and verses.

YOU USED THE WORDS “ONE BIG, CRUEL FARCE.” THE BIGGEST, CRUELEST FARCE is that you raise the issue of absenteeism when – as many of your students would attest – you are perennially absent from your classes in Criminal Law and Criminal Law Review, and you miss even your own makeup classes. Your present and past students, some of them now members of the faculty, say that they considered your course as one of “self-study.” Awkward as it is, but can you can assure us that you have not skipped classes to attend to your private practice of law?

You say: “One cannot become a great lawyer unless one is a good person first.” Teddy, please spare us the holier-than-thou platitudes. Guess what they call those who fail the injunction: “First cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye.”

Sincerely yours,

Harry Roque
Florin Hilbay
Barry Gutierrez
Elizabeth Pangalangan
Raul Pangalangan
Merlin Magallona
Bartolome Carale
Danilo Concepcion
Carmelo V. Sison
Edgardo A. Labitag


Sunday, November 25, 2007

Ingratitude. In Gratitude.

Note: Not for the faint of heart, this contains strong language.

After 30 or so years of service, many people retire with gold watches, a plaque, honor and acclaim of peers; the luckier ones retire with a hefty check.

Salvador T. Carlota, Dean of Malcolm Hall from 2005 and Professor of Law, will retire on his birthday this December not with a gold watch, not with a plaque, not with a hefty check but with a heart broken by betrayal and ingratitude.

A few days back, the following members of the Law Faculty posted publicly a statement demanding that Dean Carlota not be allowed any extension of his term beyond his birthday--

Harry Roque
Florin Hilbay
Elizabeth Pangalangan
Raul Pangalangan
Merlin Magallona
Bartolome Carale
Domingo Disini
JJ Disini
Barry Gutierrez
Danilo Concepcion

Never mind that two of these are retired former deans who should know how it is to cap one’s service to the University and the College enjoying the gratitude of peers and colleagues.

Never mind that one of them is a former Dean who, on the first day of Dean Carlota’s term in 2005, assured the Dean that he would not object to a full term of three years for him, even beyond his birthday (a statement that this former Dean has denied, of course).

Never mind that one of them is a recently retired professor who practically begged for an extension so that he could hold on to his administrative post, and which Dean Carlota graciously granted and even expedited—no questions asked.

Never mind that another is a recently retired professor who also had his term extended by Dean Carlota--no questions asked either.

Never mind that the others are absentee directors who spend more time outside the University and their institutes than inside.

Never mind that not one of them can give a perfectly reasonable, let alone compelling, explanation why Dean Carlota has to leave as soon as he turns 65 and not stay one day longer.

Never mind that not one of them can give a perfectly reasonable answer to the equally reasonable question--"why the rush?"

Never mind that after more than 30 years of service to the U.P. and the College of Law, Dean Carlota simply was asking, at the minimum, to for five (5) more months!

Mind only that they want him out the minute he turns 65.

Mind only that they wanted to make him a lame duck, as soon as possible, and to make him one in public, posting their signatures attached to huge statements—printed at college expense, at that.

After 30 plus years of faithful service, this man is met not in gratitude but with ingratitude.

Paraphrasing the Bard, surely now breaks a noble heart. A few days ago, I witnessed something totally uncharacteristic of Dean Carlota—he expressed, in no uncertain terms and tone, his disgust at his colleages. If there is one thing good that has come out of this,” he said, “it is that I now know the true character of some of my colleagues. All I want is five more months, and they cannot even give me that!

It is strong language coming from him, who is unfailingly civil, consistently cordial, deliberately inclusive, characteristically polite—yet, under the circumstances, I am not surprised; I am surprised only that he did not use stronger language, I would have—but that shows simply that he is a better man than I am.

After 30 plus years of continuous service, his colleagues, many of whom he taught, cannot give this man five more months!

Etched in granite at the lobby of Malcolm Hall, the U.P. College of Law proudly proclaims that we teach law in the grand manner.

I would like to think that I teach law in the grand manner because I teach law students, first, to become good persons. One cannot become a great lawyer unless one is a good person first.

Certainly, modeling ingratitude cannot be part of teaching law in the grand manner. Butif it is, then perhaps it really is time to really tear down that wall with those words etched in granite because then teaching law in the grand manner--in this way--would be one big, cruel farce.

Tuesday, November 20, 2007

The Legal Equivalent of the Kitchen Sink

In my line of work, I had to learn early on to take whatever victories I get and manage to learn to roll with the punches, learn from the losses and try not to get too embarrassed from my galactically stupid mistakes.

A friend of mine told me that I am the lawyer's equivalent of St. Jude; if you know what he is patron saint of, you might catch the analogy. I didn't know what to think then but later on, I felt complimented.

Early on also, I've had to learn many little things about the law that would help--in any way--secure those precious little victories. One provision of the Rules that I stumbled upon early on is Rule 135, section 6 (non-lawyers, feel free to tune out after this; you're welcome to read on though if you wish. ), an innocuous provision of the rules that no one (well, except I, he he he) in law school teaches. It is what I fondly call the legal equivalent of the kitchen sink (the figure of speech is "throwing everything at a problem, including the kitchen sink). It reads:

Sec. 6. Means to carry jurisdiction into effect. -- When by law, jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules.

In short, what does it mean? It is license given to a court--any court-- to invent, to create, to magically conjure up remedies that the Rules or the Law did not even dream of, for so long as it is consistent with the law or the rules. Note that Article VIII, sec. 5(5) gives the power to promulgate rules on pleading, practice and procedure only to the Supreme Court but this one, Rule 135, sec. 6 gives to any court the power to adopt any process or mode of proceeding.

In my line of work, where clients generally don't have a defense, or a witness, or a witness who is credible, or cannot be bought, intimidated, frightened off or killed, that is the kitchen sink.

Recently in the very first case involving the writ of amparo (it is docketed by the CA as 00001 ), I cited this rule in our Position Paper for the petitioners; one of the justices commented, "I did not realize that rule existed. That is a very powerful rule. However did you discover that?" I just smiled.

My answer would have been, had I been minded to answer: "Sometimes, necessity, or utter and sheer desperation, is the mother of invention or resourcefulness."

That's how I discovered the legal equivalent of the kitchen sink.

Saturday, November 10, 2007

Politics as Usual, in the Grand Manner

I have blogged about how I feel about the current Dean of the law school, Salvador Carlota. He is a conservative in many ways--his ideas, his ways of doing things, even his vision for law school. As a liberal in many ways, I seriously did not think that I would ever find life serving with and under him. To my surprise, I did.

While my vision of law school and legal education and even life and law are very different from his, I have enjoyed my service with him at the helm of the law school. Inevitably, I would find myself wishing that the Dean would have more progressive thoughts or ideas but I would always weigh that against what he has done for the law school during his term--to stabilize the law school and to try (operative word: try) to unite and integrate the law faculty. And he has succeeded in bringing stability to the law school simply because he has been present and he has been a hands-on dean. It is a good way of leading by example to see the Dean in his office when he should be in his office and in class, when he should be in class; save for a few official travels, the Dean has been in Malcolm Hall when he shoud be. That, and the fact that his record as administrator cannot be doubted, has brought some stability to Malcolm Hall.

Now, that stability is threatened again simply because of politics as usual. In the coming days, the spectacle of a divided faculty will once again be in full display--simply because some people just cannot wait.

The Dean retires on December 10, 2007 yet but, even as the usual and traditional courtesies have yet to be accorded him, the first salvo has already been fired by those who cannot wait to make him a lame duck.

I marvel really at human character and human nature; what is it about the lust for power that makes people do such things? I note that even vultures wait for the prey to die before swooping down.

I would have wanted to describe all these as "a great shame" but I guess "shameless" would be a better word.

Monday, November 05, 2007


At the start of a new semester of law school (and for the underbars out there, the first day of work for many), let me give some space to Alan Dershowitz (Felix Frankfurter Professor of Law at Harvard, also a litigator, columnist, lecturer and prolific author; he has been counsel for the accused in many high profile cases in the U.S.) who, in Letters to a Young Lawyer writes this interesting and certainly provocative piece.

Dont' Do What You're Best At
By: Alan Dershowitz

Some of the least happy people I know are those who figure out what they are best at and then tailor the job to their particular expertise. The problem is that what you're best at is not necessarily what gives you the most gratification or what is most important. Our educational system steers students towards courses and areas in which they excel. Grades are, after all, quite important to getting into college and law school. And it's ok to take courses in which you will excel. But courses last only a few months. Life is forever. So pick a career, or an area within your career, that balances excellence and gratification. It should challenge you every day and have you waking up eager to confront the day's challenges. Obviously you don't want to pick something you're not very good at, no matter how much you might enjoy it (for me, that would be basketball) [Ted's Note: It is uncanny that I would have the same notation as regards basketball, which I enjoy greatly but am not skilled at] Pick an area that you're quite good at but that gives you so much joy that you can't wait to get up in the morning and go to work.

Early in my career, when I was less controversial, I was offered law school deanships and university presidencies. I knew enough about myself to turn them down. In one instance, I wrote a "Groucho Marx" reply, saying that I would not want to join a club--or in this case, a school--that would have me as its dean. A dean or president must be able to bring people together. I drive them apart. I am a provocateur, not a pacifier. I would enjoy the prestige of being dean, a president or perhaps a judge, but I would hate the day-to-day aspects of the job.

I know too many people who have taken prestigious jobs--deanships, chairmanships, judgeships, professorships, partnerships--simply because they were flattered to be offered them. Understand the difference between being offered a job and accepting it. It is flattering, even career-enhancing, to be offered a prestigious job, but it is a terrible mistake to accept the job unless it is right for you--at the stage of life you are when it is offered.

Having said that, another word of caution: Don't love your work too much, especially if you're a lawyer. When I was a young lawyer, my elders would talk too about the law being a jealous mistress or loving the law. Don't love the law. It will inevitably disappoint you. Understand that the law is a tool, a mechanism, a construct. It is a false idol like so many others in life. In one respect, there is no such thing as "The Law." What we call the law is a process, a group of people, some ideas, precedents, books. Don't respect the law, unless it merits your respect. The law in Nazi Germany or in apartheid South Africa or in the Jim Crow South did not deserve respect. The Supreme Court's decision in Bush v. Gore should be followed--that's what it means to live under the rule of law. But it should not be respected, any more than the robed cheaters who wrote it should be respected. American law today sometimes deserves respect, other times it deserves condemnation. It must always be obeyed, but it need not be admired. Honesty is more important than respect.

If you don't love the law, what should you love (aside from loved ones)? Love liberty. Love justice. Love the good that law can produce. Aspirations don't disappoint, so long as you realize that the struggle for liberty, justice and anything else worth pursuing never stays won.