The Blessing, The curse, and the Hope of Democracy
The blessing of democracy is that the single vote of the poor man can equalize the single vote of the rich man.
The curse of democracy is that the single vote of the irresponsible voter can annihilate the single vote of the conscientious voter.
The hope of democracy is the single vote of the poor but conscientious voter, for together, the poor comprise the majority and hold the real power in a democracy.
As a nation, let us all celebrate the blessing, abhor the curse, and protect the hope of democracy.
The Maguindanao massacre in Mindanao was the worst public display of barbarism in recent Philippine history.
Even during the entire Martial Law regime, no such public display of massacre happened. (The massacres of over 50 people in one sitting during Martial Law could have been done in private, though.)
Given the situation, ordinary police action using ordinary rules of police engagement would have been inefficient, ineffective, inadequate.
After all, barbaric and systematic gunning down of innocent women and weaponless journalists being made to kneel before being shot goes beyond the usual commission of crimes.
The crimes were committed without fear of the law. That was the unique element of the massacre.
There was premeditation, planning, and engineering during the commission of the massacre and in the subsequent attempt to hide the evidence using heavy equipment to crush vehicles and bullet-ridden bodies into layers of soil.
Without fear of the law!
Thus, the enraged public needed an action, a very aggressive police action to arrest the suspects and to dismantle their huge private murderous army and eventually to exact vengeance and justice.
The police action that the public needed is similar to Martial Law.
Thus, from my viewpoint, we needed a "police action" that can give us a "similar" force and efficiency of a "Martial Law."
I call this the "doctrine of equivalent action."
The hitherto "unnamed, unidentified undefined" desired action is a police action, meaning it is an executive action by the chief executive, acting as a chief executive. This desired police action is, therefore, a civil action exercised by the chief executive in his/her capacity as head of the civilian government.
For lack of better term, for the moment, I will call this police action as the "Martial Law equivalent action" or simple "Equivalent Action" or simply, "EA."
The action should not be a military action being exercised by the President acting as commander-in-chief of a military organization. It should not be a Martial Law action.
Thus, I make a distinction between the "military action" which is "Martial Law" on one hand, and the "police action" which I call as "Equivalent Action", on the other.
Why the distinction?
The "Equivalent Action" is a civil, police action which does not require the elements of "invasion, rebellion, or imminent danger thereof." It is not a political decision, rather a management decision. It does not expire over a fixed period but subsists until the resolution of the case and the attainment of the objective of exacting justice.
On the other hand, "Martial Law" is a military action. It requires the elements of "invasion or rebellion." It is a political decision in addition to being a military strategy decision because it has to satisfy constitutional requirements. It expires over a fixed period although a subservient congress can extend it indefinitely.
So far, the legal community is divided on the basis of the phrase "invasion or rebellion." Some are in favor of the martial law, some are not.
However, the frustrated, enraged general public are almost unanimous: this is the way the government should handle the barbarians at the gate, the mindless savages who massacred helpless women, journalists and civilians with heartless premeditation and callous engineering. Without fear of the law, without fear of punishment, without fear of vengeance.
As we can see, the public having seen the barbaric massacre supports the Martial Law action ignored the legalities of the term "Martial Law."
The public, therefore, desires the "Equivalent Action", the civil police action that attains the objectives of justice and vengeance without the requirements of "invasion, rebellion, or imminent danger thereof."
What does this mean?
The people are satisfied with the results of the action, not the actual terminology being used.
So here is a tip for GMA and future dictators.
It is within the means of a management decision of a civilian organization, the means of an executive decision of a civilian government to enforce an "aggressive police action" without the need of imposing martial law.
Avoid the term "Martial Law." Don't use it.
Remember, when for the first time in modern Philippine history, the government used the term "State of Rebellion?" The Supreme Court declared that such declaration of "State of Rebellion" was a "political question" beyond the ambit of the Supreme Court.
GMA could repeat the same strategy.
Invent a new term, use this term as the basis of an aggressive police action, and let the lawyers debate the implication of the term in the courts.
The President does not even have to invoke actual "invasion or rebellion."
Because the new term is "unnamed, unidentified, and undefined," the vagueness and the doubt will have to be resolved in favor of "political question", beyond the ambit of the Supreme Court.
Will this result in creeping Martial Law for the entire country? Like the story of the slowly boiled frog?
Ordinarily, that's what extrapolation is all about.
However, there is the fallacy of extrapolation. We cannot just assume extrapolation.
There is always an asymptote. For the Philippines, the people have realized that Martial Law cannot just be imposed in the entire country, again, without them rising against it. Their previous experience with Martial Law gives us a reasonable basis to say that the people have an asymptote of their tolerance for it.
Just because Martial Law has been imposed in Maguindanao with many of the public supporting it does not automatically mean that the same public will support Martial Law imposed in the entire country.
This leaves the Chief Executive about two years of breathing space.
The people do not want "Martial Law", but they want the "Equivalent Action."
And, consequently, I could be the first detainee of the "Equivalent Action."
(PS:
1. Strategy vs. tactics.
This article discusses the Strategy of the Equivalent Action, and leaves the tactics with respect to habeas corpus, rebellion as a political crime, etc as another subject.
2. This is an exercise in thought; and does not reflect my political beliefs)
I have been busy compiling a set of talking points, ideas, facts and figures that should be useful for a presidential candidate who thinks that the economy is a serious factor in running the country.
While I don't intend to circulate this to the general public, I am writing this down to communicate to a future policy maker some ideas that economists and politicians have overlooked.
The idea for Hyperwage Theory came to me sometime in 1995 when I was working among US and British expatriates in Hong Kong and was assigned to several world capitals (New York, London, etc) as a result.
The central idea of course is Purchasing Power to the lowest worker. However, at the time, I did not have the full backing of economic principles to back up my discovery. Since then I have read many textbooks and history of economics with the eye of somebody going against conventional economic wisdom.
The first time I wrote about Hyperwage Theory (it was not called Hyperwage Theory then) was on May 2, 2002 in my BusinessWorld column. That was the Part 1.
Therefore, officially, Hyperwage Theory is 7 years old today.
However, part 2 was actually written in 2005 (three years after Part 1). It was in Part 2 that I settled on the name Hyperwage Theory.
I actually wanted to call it "High Purchasing Power Theory" but this phrase was too wieldy, too long, too generic, and lacking the originality of an freshly invented word. And people will be referring to it as HPPT Theory?
I settled on Hyperwage Theory although this term alone scares away first time readers.
I figured, Hyperwage is a controversial term, but, hey, I invented it and its catchy and short.
Part 1 by itself is self-contained, it described the theory and principles behind the theory. It should prove to be self-evident.
Part 2 and the series was serialized for 33 weeks (whew!) in 2005 and the series was the detailed explanation of the basic tenets mentioned in Part 1.
For all intents and purposes, the economic policy makers and the government executives were exposed to Hyperwage Theory in 2005 (four years ago).
Hyperwage Theory made the term "purchasing power" fashionable, and I am happy that I achieved my first goal with my theory, and that is "awareness."
And you can read so many accounts purporting to debunk Hyperwage Theory but look at their arguments: Do they stand on solid ground or are they just repeating the ideas of the authors of textbooks.
And why do Third World people still line up at US embassies looking for that golden visa if not in search of Hyperwage?
As long as they cannot answer you that with common sense, don't easily believe those detractors. They are not saying anything new, they are repeating the same economic ideas that have perpetrated and actually worsened the poverty conditions in Thirld World countries.
Keep these in mind as your read the articles of the opponents of Hyperwage. (But remember, the government and the politicians have started to catch on: Purchasing Power is not a popular soundbite for them. Isn't that a signal, they are beginning to see the value of Hyperwage Theory?)
Now, Hyperwage Theory has become a byword, (the butt of jokes), and Purchasing Power is the economic jargon of the times.
Have you heard about "consuming power", "spending powers" "buying power" spoken by the senators, congressmen and economic advisers to the President?
Before 2005, purchasing power was hardly a word, they uttered.
Now, that they have dipped their feet in the pool, are they ready for US$1.50 per hour (or P20,000 per month) salary for the domestic helpers?
Whatsoever you do to the least of your workers, you do unto the economy.
Portrait of the
Street Strategist
as Bar Examiner
- 5 -
T
his is the continuing pseudo-treatise on the portrait of the Street Strategist as a bar examiner on how to maximize the effectiveness of the bar examinations as the only reference performance metric (RPM) of the candidate, and how to minimize its inherent shortcomings.
In Part 1, we discussed the oblique ratio decidendi establishing the reason why a person who is not even qualified as an examiner should possess the wisdom to conjure up this treatise. In Part 2, we discussed the basic operations of the bar examinations. In Part 3, we discussed the species of bar examiners, their positives and negatives. In Part 4, we discussed the ego of the bar examiners and reviewed a few idiosyncratic bar questions.
In this part, we shall discuss more questionable aspects of test construction as practiced by the examiners over the years.
Great Wall
A reader wrote to correct me that the Great Wall of China cannot be seen from the moon. Yes, if we go by Microsoft Encarta and other web sites lifting and regurgitating the same information from a single source, it cannot be seen from the moon.
On the other hand, during the space race in the late 1960’s to early 70’s, astronauts claimed seeing the Great Wall. Both accounts could be right. After all, given the current state of earth pollution, the satellite cameras and Space Shuttle astronauts probably could no longer see what the cosmonauts could have seen decades ago. And that anecdote about the guards could have been pure yarn. Anyway, what counts is message not the medium.
Misdirected fear
Now back to the bar. Question: What is your greatest fear with respect to the bar examinations?
I don’t have to survey the entire population of 5,000 bar candidates, but based on anecdotal evidence, the following would be the generalized response: “I am less afraid of being asked about my general knowledge of the law and jurisprudence. I am more afraid that the bar examiner will give whimsical and capricious questions that he himself could not answer correctly or cannot answer within the given time or questions that do not test my analytical skills or has no bearing with the realistic legal practice for a new lawyer.”
Thus, the apprehension of the bar candidate is misdirected, his focus is tangential, and his concern is obtuse.
The candidate is afraid that the bar examinations will not test him on what he knows; he is afraid that the bar will test him on what he does not know.
Lack of philosophy
For the candidate, the bar examinations, being limited only to 20 major questions, has become a game of approximating the whim, caprice, and vanity of the bar examiner rather than the judicious process of measuring his analytical skills in integrating and applying different concepts of law and jurisprudence to a legal situation.
The central focus of the bar is the law and jurisprudence, not the whim, caprice and vanity of the bar examiner. The examiner should be invisible.
Otherwise, the weight of the bar as the single most important reference performance metric of the candidate’s analytical thinking process will be reduced to zero.
My theory is that the examiner is an expert in the law but not in test construction. Most likely, the examiner has not adopted his own pervasive philosophy of test construction.
If this is the case, I am going to offer one such philosophy including one such operational implementation towards the end of this series.
Nomenclature
Let’s go over this question in the 2003 Bar:
A, B, C, D, and E made themselves solidarily indebted to X for the amount of P50,000. When X, demanded payment from A, the latter refused to pay on the following grounds: (a) B is only 16 years old. (b) C has already been condoned by X. (c) D is insolvent. (d) E was given by X an extension of 6 months without the consent of the other four co-debtors. State the effect of EACH of the above defenses put up by A on his obligation to pay X, if such defenses are found to be true.
Truthfully, how long will it take you just to internalize and visualize the personalities? You are supposed to think about each and every one of the situations above and write down your answer in a total of ten minutes. Therefore, you have about two minutes per situation. Even if you have perfect information, I doubt if you can write down your answer directly from your brain in two minutes for each situation.
In the bar, every minute counts. As examiner, it would be unconscionable to cause the candidate to devour five minutes just to visualize the entities involved. And this will happen if the examiner is not sensitive to minor things.
An examiner does not realize this additional burden of visualization because it takes him days to think, create, and write down a single problem. Thus, being the creator, he doesn’t feel the burden of initial visualization of the bar problem.
Unfortunately, the candidate does not have this advantage of several days or months familiarizing with the situation envisioned in the bar question.
What’s the deal with A, B, C, D, & E? Why not use names like Adolph, Blaine, Charles, David, and Edward?
There’s a huge difference when normal names are used. Can you feel the difference? There’s that intuitive, realistic, familiar visualization.
As examiner, the Street Strategist will be sensitive to minor things, even those things that other examiners will never ever consider. Remember, we should not burden the candidates unnecessarily, even in the minor matter of nomenclature.
Be it resolved that all bar problems use regular names to minimize the visualization burden. Now, that’s being sensitive to the plight of the terrified candidates.
Unconscionable
In Part 4, I gave examples of my idea of whimsical questions. Yet, despite of the fact that I told you that the answers are very long, I don’t think you really have an idea of how long those answers are. You see, there is a big difference between being told how long the answers are, and the actual experience of reading them.
So, let’s have an example of how tyrannical these questions could be. In the 1977 Bar in Civil Law, there were 20 questions but each of them has sub-questions, about 12 minutes per question. Review the following question and see if you could have picked your brains, formulated your answer and most importantly wrote it down in 12 minutes for all the three sub-questions.
Bar 1977 Question 6:
What are the modes of acquiring ownership and other real rights under the New Civil Code?
What is tradition and give five kinds of tradition which are provided in the Civil Code
What are the requisites of usufruct? How is it constituted and how do you distinguish it from ownership and from lease? What are the modes of extinguishing them?
Answer provided by the UP LawCenter:
A. Under our Civil Code, the modes of acquiring ownership and other real rights are the following:
1. Occupation
2. Intellectual creation
3. Prescription
4. Law
5. Donation
6. Testate and intestate succession
7. In consequence of certain contracts, tradition
B. Tradition is a derivative mode of acquiring ownership and other real rights by virtue of which they are transmitted from the patrimony of the grantor, in which they have previously existed to that of the grantee by means of a just title, there being both the intention and the capacity on the part of both parties.
The different kinds of tradition which are recognized in the Civil Code are:
1. Real tradition
2. Constructive tradition
2a. traditio symbolica
2b. tradition longa manu
2c. traditio brevi manu
2d. traditio constitutum possessorium
3. Quasi-tradicion
4. Tradicion por ministerio de la ley
C. There are two requisites of usufruct, the essential and the accidental. The essential requisite is the right to enjoy the property of another, while the accidental requisite is the obligation of preserving the form and substance of such property. The latter is accidental, because the title constituting the usufruct or the law may otherwise provide as in the case of abnormal usufruct.
A usufruct may be constituted:
1. by law
2. by the will of private persons expressed in acts inter vivos
3. by the will of private persons expressed in a last will and testament
4. by prescription
Comparison (ownership vs. usufruct)
Ownership has for its attributes:
1. the right to enjoy (just utendi, jus fruendi, jus abutendi)
2. the right to dispose (jus disponendi)
3. the right to vindicate or recover property (jus vindicandi);
Usufruct is limited merely to the enjoyment of the property (jus utendi and jus fruendi)
Comparison (lease vs. usufruct)
1. As to nature of right – Usufruct is always a real right, whereas lease becomes a real right only when registered.
2. As to constitution – Usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by prescription, whereas lease is as a rule constituted by contract
3. As to the person constituting it – In usufruct the person constituting it is the owner, whereas in lease the person constituting it need not be the owner.
4. As to extent - Usufruct includes the right to use and enjoy the fruits (jus utendi, jus fruendi) of the thing, whereas lease is more limited.
5. As to duration – There is no limitation to the duration of the usufructuary right, whereas there is a limitation to the duration of a lease right.
6. As to repairs – The usufructuary is responsible for ordinary repairs, whereas the lessee is not.
7. As to taxes – The usufructuary is responsible for taxes on fruits, whereas in lease the lessee is not.
Usufruct is extinguished:
1. By death of the usufructuary, unless a contrary intention clearly appears.
2. By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct.
3. By merger of the usufruct and ownership in the same person.
4. By renunciation of the usufructuary
5. By total loss of the thing in usufruct
6. By termination of the right of the person constituting the usufruct
7. By prescription
Perfect information time
So, were you able to answer the above question in 12 minutes? Of course, you didn’t. Why not try this one: Just copy all the answers above on a sheet of paper; can you finish in 12 minutes?
Did you forget any of the enumeration above? Sorry, try your luck next year. Now, who says law doesn’t need memory work? It’s the bar exams itself that’s the proof. Res ipsa loquitur: the thing speaks for itself. Remember, almost all the 20 questions have sub-questions of the same style.
Even if you had the time, could have you remembered all those enumerations and distinctions above?
And even if you have memorized all of them, and the rest of the 2,200 plus articles of the Civil Code, has the above question tested your ability to think and apply your legal knowledge to a legal question? The answer should be a resounding, “No,” right?
There is a sacred responsibility that comes with being a bar examiner. And that includes avoiding an impossible imposition on the candidates. For instance, many examiners do not realize that their questions are impossible to answer in the given time as exemplified above.
How to avoid this problem? Allow me to share a personal experience.
There were a few occasions in my younger days when I had to give examinations to a college class, and I didn’t know the time limit to be set.
Yet, I knew that the academic lives of these students depended on this time limit and I didn’t want to have the guilty conscience of destroying their future because of a whimsical and arbitrary time imposition on them. Some of these young people would lose their scholarships forever.
Here’s what I did. I solved the problems one by one, in the step-by-step solution that I considered as the perfect solution. I timed my answers.
Bear in mind, that I know what the perfect solution was, after all, I designed the problems.
I was merely writing it down the way I expected a perfectly arranged solution ought to be. That interval was what I called the “perfect information time”(PIT).
Note that this was extra work for me, spending time to answer my own problems, something which is not normally done by examiners.
Since a student will have to read the problem and analyze it, and make corrections along the way to refine his solution, he would spend much more time than the PIT.
Formula
I invented a formula of the Student Answer Time (SAT) as the PIT plus some extra analysis and composition time (ACT). Thus: SAT = PIT + ACT.
And so it came to pass that I knew exactly what was the PIT, and I assigned the ACT so that the SAT is double the PIT. Therefore, I knew the SAT was not whimsical and capricious.
Back of the book
But then, I soon realized that the ACT that I was giving wasn’t even enough. There were still complaints. Most of the problems I created were not designed for simple application of a formula but designed to use particular insights that were not even discussed in the class although these insights were discussed in a previous semester. The problems used integration of different bits and pieces from all over the place.
For example, I remember this particular problem that I designed that was impossible to solve using the normal algebraic methods but could be solved in ten minutes using polar coordinates, the latter being a concept that is covered in first year math. But how on earth could have you have thought of using polar coordinates? That was the test of critical analysis.
In fairness, I gave it a bonus problem. If any student solved that I would have awarded him the Nobel Prize as well.
When students complained that the time for the exam was not enough, I began to question my own methods. What exactly did I want from them in terms of knowledge and understanding as measured by the test? Speed? Memory?
Then it dawned on me that in real life, the answers are not found in the back of book. In fact, they can open the book when they are going to practice their professions years later.
I realized that what I really wanted from them was to know what part of the book they should be looking at. I wanted them to know where and how to find the solutions.
Finally, I wanted to assess their thinking process, analysis, and integration of separate concepts as applied to a single problem, and not their memory.
Open book, indefinite time
Forthwith, I instituted a simple but very revolutionary experiment: Open books, open notes, no time limit.
If I had the courage to institute such an examination regime, it was because I knew that the problems were designed in such a way that they would have to use their analytical skills.
For an exam that was designed for one and a half hours, the students would eventually submit in two to three hours. Most of them give up, after all, sitting for three hours is enervating. And for those who stay behind after three hours, I would ask them how much time they needed, and whether such additional time would really cause them to formulate a solution. They can continue in the faculty room.
It’s a different case if you are pursuing a solution and you need time for it or if you are just waiting for a miracle from above.
Result? It was fairly easy to know who deserved promotion and who deserved retention.
Of course, this method cannot be applied in full to law school or the bar, but the principle of testing analytical skills rather than memory is there.
Yet, I still received complaints. Some students wanted to revert back to the close book, time limited exams? Why? They realized that my problems would have to be tempered down since they cannot open books and they have to finish it under a time limit. In short, under scarce resources I would be forced to give reasonably easier exams. I, too, began to see their logic. There’s always a trade-off somewhere.
Nobel Prize
And you cannot say that I’m just shooting the bull. I apply these principles to myself as well. For instance, in my article Broadcaster, I wrote about submitting in 30 minutes when the exams was designed for two hours because I could not write anything anymore. It was the equivalent of no-time limit which I could not have availed of, anyway.
As for examples of problems whose answers are not found in the book, these are the problems that I have tackled together with you in the last five years as the Street Strategist albeit those problems were irrelevant, immaterial, and inconsequential.
By the way, before I leave this topic, I have a minor fun problem for you. I will award a copy of my book Strategy Myopia to the first five individuals who can email me their correct solutions. Even if you answer late, you still have the chance because the first answers could be wrong.
Here is the problem: “A guard dog is tied to the outside wall of a cylindrical tower with a radius of 10 meters. If the leash of the dog is exactly half-way round the tower, how much ground area outside the tower is covered and guarded by the dog?”
Come on guys, even a grade four student understands circle and radius. It’s like I’m giving away my book for a song, right? And, by the way, with your correct solution, in addition to awarding you my book, likewise, I will award you the Nobel Prize.
