Silencing the Oracle!!

Atty. Ralph A. Sarmiento's Blogsite!

Friday, October 28, 2005

The Teacher is Irrelevant!?

I am reproducing below my recent exchange of text messages with a student (whose name I will withhold under terms of confidentiality) who was pleading that I teach them PIL (Public International Law) this coming semester in law school. I believe, however, that the teacher is really irrelevant because students of law are really supposed to be autodidacts if they are to understand and comprehend the nuances and intricacies of the law. The law is not taught; it is learned and studied. But please forgive the English; it is text messaging (SMS) English!

Student: Sir, gud pm! You gonna be teaching PIL? (more of a plea than a question).

Atty. Ralph: Ha ha! I hav actually thought about dat! I really wish I cud! However, it's also my subject at Lex Bar Review. ü

Student: I am... Well, dissatisfied with who's teaching the subject... :( i wish i can say that better... :( no chance?

Atty. Ralph: Why? Who's handling the subject? Isn't d teacher supposed to be irrelevant?

Student: :( If the teacher is irrelevant, why bother enrolling. Supposed to be competent to guide the student through logical labyrinths! Indi guid ya pwede na irrelevant. I need a teacher who can inspire and motivate me. Inspiration, motivation and guidance are never irrelevant! :(

Atty. Ralph: I think u just hav to learn to live w/ those constraints! But to say dat dey leave u w/ no inspiration, motivation or guidance is to disclaim a personal responsibility 4 pursuing an intellectual path dat is inescapably ur own & solely ur own. Make it ur own experiment in learning, seeking genuine inspiration, motivation or guidance dat can only come from within d broad spectrum of ur own will & intellect! ü

Student: I am a student... As such, it is my need to be guided by those whose experience and intellect precede and exceed mine. While i claim sole responsibility for my intellectual growth, i am still undeniably a young mind whose cerebral capacity is greatly influenced by those who come before me. Aren't we after all, in this study of law, merely building on the genius of the intellectual giants. Would Socrates or Plato have come up with the blueprint of their theories w/o their teachers' input? Of course, if the teacher is not of a worthwhile caliber, doesn’t justify the student's failure. But while there are competent teachers, it doesn’t excuse them from such an honored responsibility of moulding eager minds. And well, wouldn't that be something? ü

Atty. Ralph: D intellectual path is a truly a lonely path, but it's just part of d choices we make! I believe dat u wud ultimately just be riddled by perplexity and aporia if u insist on finding an Archimedian point outside of urself! What matters really is not inspiration or motivation but a deep personal commitment to, and a clear vision of, ur own intellectual path! ü

Student: And equating my saying that they leave me with no inspiration with disclaimer of a personal responsibility of my intellectual path is an arbitrary conclusion. Ive never pegged my thirst for knowledge with their ability to teach. ü but you are quite right and inescapably undisputed. I will make it my personal goal to learn much as i can. But what a lonely path it will be not to be surrounded by people whose intellectual capacity one respects. ü

Student: I hope you didnt get it the wrong way. Not to worry, i am no puppet controlled by hands other than mine. These external factors are never a premise, a benefit maybe. It is simply satisfying to be able to discuss the law with people who know that the law is not a one-dimensional science. ü but nonetheless you are right. I should get used to such a solitary endeavor. ü

Atty. Ralph: I am not a cynic or a legal nihilist, but I think to claim dat one really knows or cud know "what d law is" is nothing but plain & vain megalomania! Spare me! I really know nothing! I'm just an infantile legal thinker who has committed to free myself from technocratic legal thought & to proceed in a spirit dat questions all formula, doctrines & dogma! ü

Student: Yep, right you are. Even Einstein constantly insisted on questioning everything. Established data taken for a fact cannot be infallible against sound review and reasoning simply for being accepted. There are so many worthy discoveries and innovations yet! ü keep the unwavering determination. I will work on mine as well. ü

Saturday, October 15, 2005

I would have been a Physicist!

Not many people know that if I had not become a lawyer, I would have been a physicist. My physics teacher in high school, Mr. Villarico, was encouraging me to take up nuclear physics or at least any math-related course. That was why he almost fainted when I told him after our high school graduation that I had already enrolled in Political Science in preparation for legal studies.

But in taking up law and in becoming a lawyer, I never really said goodbye to mathematics. My mother, a math teacher herself, had told me that there really was no difference in the study of math and the law because in the latter, instead of numbers, what you have are words. Therefore, when I was in law school, I treated the law with mathematical precision. As such, when I see words making up a legal provision, I see them as numbers making up an equation, and when I see legal provisions, I see them as mathematical formulae for the solution of legal problems.

Friday, October 07, 2005

LOVE QUOTE from the Philippine Supreme Court

“Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations. x x x. Marital union is a two-way process. An expressive interest in each other's feelings at a time it is needed by the other can go a long way in deepening the marital relationship. Marriage is definitely not for children but for two consenting adults who view the relationship with love amor gignit amorem, respect, sacrifice and a continuing commitment to compromise, conscious of its value as a sublime social institution.” (Ching Ming Tsoi vs. Court of Appeals, 16 January 1997)

Freedom to Speak, to Criticize, and to Question

Can the press ask questions or make inquiries about official acts? Obviously, yes! But, can they ask questions or raise inquiries without being under threat of criminal prosecution for libel or defamation? To this question, I could not give an exact and definite answer, as I have been telling my students in Political Law. However, I will try to discuss some basic precepts on what I believe about the function of the press and the strengthening of their freedom to speak, to criticize, and to question.

When the press asks a question or raises an inquiry, it is an anti-democratic policy to approach the same with a threat to prosecute the member of the press for libel. Anti-democratic because it would be offensive to basic democratic goal of encouraging the vigilance of the people and press in the acts of public officials and is anathema to the guarantees of free press, speech and expression.

Of course, this is not to say that the press is immune from a libel suit. But if the press or media could no longer question or raise an inquiry into official acts without being under threat of prosecution for libel, then how could an ordinary folk question or raise an inquiry into acts of officialdom. Public officials, unless in a patently derogatory attack on their person, should not be easily angered with questions of people or the press about their official acts. They should instead welcome inquiries on their official acts in the spirit of transparency and openness to their constituents. Any official act is a public concern that gives the people, usually through the press, the right to question.

The press is considered as the “Fourth Estate” of our democratic institution and to borrow the immortal words of Congressman Pedro Lopez in his sponsorship speech of R.A. 1289, which amended Art. 360 of the Revised Penal Code on libel, “the press must be unshackled in fulfilling their mission as the eyes, ears, nose, voice and conscience of our people.” An examination of the jurisprudential developments in democratic countries shows that the trend is to give the constitutional guarantee of free press the broadest scope and the widest latitude. It may not be amiss to note that American decisions even go the extent of viewing the function of free press and speech as inviting dispute. In fact, an American Jurist once stated that the press may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

Therefore, the press, as the eyes, ears, nose, voice and conscience of the people, will always invite dispute and stir people to anger. This will always be the role of the press as the fourth estate of our democratic institution. We can even venture to say that the constitutional guarantee of free press can only have its true meaning if used by a press that asks questions rather than just reports, that makes inquiries rather than just accepts things, and that criticizes rather than just conforms.

Government functionaries should know that the press will always ask questions and will always make inquiries. And when the press speaks, it is the people that speaks through them, and when they make an inquiry, it is an inquiry of the people because as previously intimated the press is the eyes, ears, nose, voice and conscience of the people.

Therefore, government officers should have known at the time they sought the mandate of the people that they were to put on a new personality that would be open and susceptible to public scrutiny, questions and criticisms – a new public self that should co-exist with the principles of full public disclosure and transparency and other rubrics of democratic way of life. Hence, when the press asks a question, public officers should not answer with a threat to prosecute the person who asked the same, otherwise the ordinary people in the streets would be afraid to ask questions and this would not speak well of our democratic regime. Free speech and press could only achieve their true meaning in the battle of ideas; and the battle of ideas always starts with a question. When a question is raised by the people or the press about official acts, it is incumbent for the public official to simply answer the question and nothing more. This is how democracy works.

It is but proper to end this statement for free press by remembering the timeless words of Justice Malcolm in the celebrated case U.S. vs. Bustos (1918): “The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned (“balat sibuyas”) with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.

Reasons that Reason Does Not Know

Valentines is in the air and if there is one Supreme Court decision that would be a perfect representation of the Valentines spirit, it would be none other than a case that involves a teacher and a student of Tay Tung High School in Bacolod City, Philippines.  This is the case of Evelyn Chua-Qua vs. Pres. Exec. Asst. Clave and Tay Tung High School, Inc., G.R. No. 49549, August 30, 1990.

This case was actually an illegal dismissal case but a unique one because it involves the dismissal of a classroom teacher on the ground of alleged unethical conduct unbecoming of a dignified school teacher by reason of petitioner’s marriage to her student who was fourteen years younger than her.  Her continued employment was considered by the school as inimical to its best interests and would downgrade its high moral values.

When the dispute arose, Evelyn, the petitioner, was the class adviser in the sixth grade where one Bobby was enrolled.  Since it was the policy of the school to extend remedial instructions to its students, Bobby was imparted such instructions in school by Evelyn.  In the course thereof, the couple fell in love and in December 1975, they got married in a civil ceremony which was later ratified with the rites of their religion in a church wedding a month later.  Evelyn was then thirty years old while Bobby was only sixteen.

Tay Tung High School subsequently applied for a clearance to terminate Evelyn arguing that her actuations as a teacher constitute serious misconduct, if not an immoral act, a breach of trust and confidence reposed upon her and, thus, a valid and just ground to terminate her services.  It further charged Evelyn with having allegedly violated the Code of Ethics for teachers the pertinent provision of which states that a "school official or teacher should never take advantage of his/her position to court a pupil or student.”

Evelyn, on the other hand, maintains that there was no ground to terminate her services as there is nothing wrong with a teacher falling in love with her pupil and, subsequently, contracting a lawful marriage with him.

While no direct evidence of immoral acts had been presented, the Labor Arbiter granted a clearance for Evelyn’s dismissal from employment.  The Labor Arbiter, although conceding that there was no direct evidence to show that immoral acts were committed, he nonetheless indulge himself in speculating that "it is enough for a sane and credible mind to imagine and conclude what transpired during those times."

The Supreme Court, however, did not agree with the conclusions of the Labor Arbiter.  The supposed basis of the conclusion of the Labor Arbiter was the allegation in the affidavits presented by Tay Tung High School that Evelyn “stayed alone with Bobby in the classroom after school hours when everybody had gone home, with one door allegedly locked and the other slightly open.”  But surely, no logical inference of any immorality may be deduced thereon, especially considering that a door was open.

As such, the Supreme Court held that: “With the finding that there is no substantial evidence of the imputed immoral acts, it follows that the alleged violation of the Code of Ethics governing school teachers would have no basis. Tay Tung High School utterly failed to show that Evelyn took advantage of her position to court her student. If the two eventually fell in love, despite the disparity in their ages and academic levels, this only lends substance to the truism that the heart has reasons of its own which reason does not know. But, definitely, yielding to this gentle and universal emotion is not to be so casually equated with immorality. The deviation of the circumstances of their marriage from the usual societal pattern cannot be considered as a defiance of contemporary social mores.”

Sexual Harassment and Freedom of Expression

Sexual harassment can take two forms: (1) “quid pro quo” harassment, which means “something for something” which typically involves the what is known in universities as “lay or fail” or in workplaces as “lay or lay-off”; and  (2) “hostile environment” harassment that is said to exist when harassment creates hostility that makes the environment no longer conducive for a person to either work or study.

The first or the “quid pro quo” type does not pose much of a problem to “freedom of expression.” For while there are words involved, they are not protected speech or expression under the Bill of Rights.  What is restricted in regulations such as this is not speech or expression involved but the illegal nature of the action or transaction implied by the same –in this case the request or demand for sexual favors.  Thus, the speech component is only incidental to the illegal action proposed.

The second or the “hostile environment” type is troubling or problematic from the freedom of expression standpoint.  If confined to abusive demands for sexual favors, physical abuse such as unwanted touching (“chancing”) and targeted verbal harassment, it would have no collision with freedom of expression.  However, while a well-intentioned regulation, its scope has grown well beyond said things and has approached some type of offensive speech that is constitutionally protected.

Whether we like it or not, even sexists or male chauvinists have freedom of speech and expression.  It cannot be seriously disputed that in some work environments, humor and language are rough hewn and vulgar.  Green jokes and sexual conversation may abound.  But as long as there is no pattern of targeted and/or intentional verbal abuse, they cannot constitute sexual harassment without clashing with free expression rights.

Another problem is the nebulous and overbroad definition of “hostile environment” harassment.  For example, Atty. Jocelle Batapa, a Resource Speaker of the Delivery of Justice to Disadvantaged Women Coalition Project contends that under the R.A. 7877 (The Anti-Sexual Harassment Act of 1995), there can be an action or prosecution for “hostile environment” sexual harassment even without a request or demand for sexual favors.  However, the portion of R.A. 7877 that deals with “hostile environment” harassment cannot stand alone without the “quid pro quo” element because it does not define any act, much less as a crime or offense.  A broad definition of “hostile environment” sexual harassment such as “callous insensitivity to the experience of women” in one university manual or as “including behavior not overtly sexual but may be as subtle as a look” in another, leaves men of ordinary intelligence guessing as its meaning and differing as to its application.  By failing to clearly define or provide adequate notice of what constitutes illegal behavior, said law would “chill” freedom of expression.  How can mortal men avoid prosecution – except, of course, by not speaking?

Lastly, by aiming not just at harassing conduct, but also at offensive language, “hostile environment” harassment laws are violative of freedom of expression.  It is like saying that speech that shows animus against women is harassment and speech showing kindness is simply speech.  This is diametrically opposed to the basic principle of “content or viewpoint neutrality.” Justice Oliver Wendell Holmes, Jr. once wrote in Abrams vs. U.S. that “the ultimate good desired is better reached by free trade in ideas, — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”  Any regulation that restricts speech or language because it is offensive to women would always be unconstitutional, regardless of the setting because it threatens to alter the free marketplace of ideas.  While workplace speech may receive less protection than speech in a public forum, any restrictions that are placed may be done only on a viewpoint-neutral basis.  The speech or language may be offensive, but as Justice Hugo Black wrote in Dennis vs. U.S., freedom of expression is not for those “safe” or orthodox views which rarely need its protection.