Jollibean

from www.jollibean.com

Yes, Singapore copies too.

I don't know the real story... whether Jollibee has ever tried to sue or whether they can even win this case.

This can certainly be an interesting debate about protecting well-known Filipino marks. 

If Jollibee can't be protected as THE well-known mark, then all others might as well be lost in overseas commerce.

Have a cup of Jollibean while you think about it...

from www.jollibean.com

Shangri-La Restaurant Lives

Shangri-La Restaurant in Times Street, Quezon City, Philippines

From the trademark-junkie favorite Shangri-La International v. Developers Group (G.R. 159931, March 31, 2006 and January 22, 2007) case. 

_____

Read the two Shangri-La cases in the Philippine Supreme Court here:

first case:

http://www.lawphil.net/judjuris/juri2006/mar2006/gr_159938_2006.html

second case:

http://www.lawphil.net/judjuris/juri2007/jan2007/gr_159938_2007.html

Diner Dash in the Flesh

Copyright & Trademark Infringement in One Strike

spotted along Bayani Road, Taguig City, Philippines

Philippine Jurisprudence: The Skechers Trademark Case (2011)

Skechers, USA, Inc. v. Inter-Pacific Industrial Trading Corp.

G.R. No. 164321 (2011)

Skechers, USA Inc. is the owner of the registered trademarks “Skechers” and “S within an oval logo”.

Skechers filed a criminal case for trademark infringement against several store-owners that were selling shoes branded as “Strong” and bearing a similar “S” logo. The Regional Trial Court (RTC)  issued search warrants, allowing the National Bureau of Investigation (NBI) to raid the stores and confiscate 6,000 pairs of shoes.

The accused moved to quash the warrants, saying that there was no confusing similarity between the “Skechers” and the “Strong” brands.

The RTC granted the motion to quash and ordered the NBI to return the seized goods. The court said that the two brands had glaring differences and that an ordinary prudent consumer would not mistake one for the other.

On certiorari, the Court of Appeals (CA) affirmed the RTC ruling.

The matter was elevated to the Supreme Court (SC).

Issue: Did the accused commit trademark infringement?

Yes, the accused is guilty of trademark infringement.

Under the IP Code (RA No. 8293), trademark infringement is committed when: 

Remedies; Infringement. — Any person who shall, without the consent of the owner of the registered mark:  

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark or the same container or a dominant feature thereof in connection with the sale, offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or  

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth: Provided, That the infringement takes place at the moment any of the acts stated in Subsection 155.1 or this subsection are committed regardless of whether there is actual sale of goods or services using the infringing material. (emphasis supplied)

There is trademark infringement when the second mark used is likely to cause confusion. There are two tests to determine this:

1. Dominancy Test – the court focuses on the similarity of the dominant features of the marks that might cause confusion in the mind of the consumer. Duplication or imitation is not necessary. Even accidental confusion may be cause for trademark infringement. More consideration is given to the aural and visual impressions created by the marks on the buyers and less weight is given to factors like price, quality, sales outlets and market segments.  

Applied to this case: The SC found that the use of the “S” symbol by Strong rubber shoes infringes on the registered Skechers trademark. It is the most dominant feature of the mark -- one that catches the buyer’s eye first. Even if the accused claims that there was a difference because the “S” used by Skechers is found inside an oval, the fact that the accused used the dominant “S” symbol already constitutes trademark infringement.  

The SC disagreed with the CA reasoning that the “S” symbol is already used for many things, including the Superman symbol. Even if this is true, the fact that Strong used same stylized “S” symbol as that of the Skechers brand makes this a case of trademark infringement. The same font and style was used in this case. The Superman “S” symbol is clearly different from the “S” in this case.  

2. Holistic or Totality Test – the court looks at the entirety of the marks as applied to the products, including the labels and packaging. You must not only look at the dominant features but all other features appearing on both marks.  

Applied to this case: Both RTC and CA used the Holistic Test to rule that there was no infringement. Both courts argued the following differences: 

• The mark “S” found in Strong Shoes is not enclosed in an “oval design.”

• The word “Strong” is conspicuously placed at the backside and insoles.

• The hang tags and labels attached to the shoes bears the word “Strong” for respondent and “Skechers U.S.A.” for private complainant;

• Strong shoes are modestly priced compared to the costs of Skechers Shoes.
 

Also using the Holistic Test, the SC corrected the lower courts and ruled that the striking similarities between the products outweigh the differences argued by the respondents:

• Same color scheme of blue, white and gray;

• Same wave-like pattern on the midsole and the outer sole;

• Same elongated designs at the side of the midsole near the heel;

• Same number of ridges on the outer soles (five at the back and six in front);

• Same location of the stylized “S” symbol;

• The words "Skechers Sport Trail" at the back of the Skechers shoes and "Strong Sport Trail" at the back of the Strong shoes, using the same font, color, size, direction and orientation;

• Same two grayish-white semi-transparent circles on top of the heel collars.

The features and overall design of the two products are so similar that there is a high likelihood of confusion. 

Two products do not need to be identical, they just need to be similar enough to confuse the ordinary buyer in order to constitute trademark infringement (Converse Rubber Corporation v. Jacinto Rubber & Plastic Co., 186 Phil. 85 [1980]). Also, the difference in price cannot be a defense in a case for trademark infringement (McDonald’s Corporation v. L.C. Big Mak Burger, Inc., 480 Phil. 402, 434 [2004]).

There are two types of confusion:

1. Product Confusion – where the ordinary prudent purchaser would be induced to purchase on product in the belief that he was buying another.
2. Source or Origin Confusion – although the goods are different, the use of the mark causes the consumer to assume that both products originate from the same source. 

Trademark law protects the owner not only from product confusion but also from source confusion. Protection is not limited to the same or similar products but extends to all cases where:

• The consumer is misled into thinking that the trademark owner extended his business into a new field;

• The consumer is misled into thinking that the trademark owner is in any way connected to the infringer’s activities; or 

• The infringement forestalls the normal potential expansion of the trademark owner’s business.

Trademark law does not only protect the owner’s reputation and goodwill, it also protects the consumers from fraud and confusion. 

In this case, it is clear that there was an attempt to copy the trademark owner’s mark and product design. In trademark infringement cases, you do not need to copy another's mark or product exactly. Colorable imitation is enough.

Is Copyright a Human Right?

Some writers are convinced that copyright is merely a statutory benefit -- that is, it cannot exist without the law.


Like many writers from Europe, however, I subscribe to the old world philosophy that copyright is a human right -- that it transcends business interests and embraces the sacred relationship between the creator and the creation -- the author and the work.


Although domestic laws and treaties do contain provisions on protecting intellectual property, they cannot be considered the ultimate source of these rights. They do not arise from agreements or legislation, but from human nature as creator.

Two important pieces of international law articulate this philosophy:


1. Article 27 (2) of The Universal Declaration of Human Rights (UDHR), known to be the document of authority for human rights, reads: 

Everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author;

2. Article 15 (1) of The United Nations Covenant on Economic, Social and Cultural Rights (UNCESCR) also reads: 

The State Parties to the present Covenant recognize the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Like any other person of any other profession, artists, authors and scientists deserve to make a living from their talents. More importantly, they must be acknowledged as the creators of their work. 


So is copyright a human right? To give a yes or no answer to the issue would be a serious oversimplification that ignores the history and philosophy behind copyright.


The right answer would have to be "partially" -- copyright is partially a human right. At least in the Philippine legal system, it has to be understood this way. Why? Because our law fuses (or confuses) the concept of copyright in the civil law and the common law sense.


Civil law traditions treat copyright or author's rights (droit d'auteur to the French; Urheberrecht to the Germans) as a sacred bond between the author and the work. These rights form what we call in the Philippine IP Code as moral rights. Moral rights, particularly the right of paternity, ought to last forever (e.g. William Shakespeare's authorship to Hamlet will never expire by mere passage of time). 


This is the part of copyright which I am inclined to declare as a human right -- the right of paternity. Like any other human right, it is imprescriptible, inherent, inalienable and universal. Authorship, therefore, must be likened to a status rather than a right. For a right often disappears after the death of the owner while a status of paternity lasts forever.


So what is the right of Paternity? Section 193.1 of the Philippine IP Code describes it as 

the right to require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work 

The old intellectual property law (PD 49) correctly declared that the right of paternity lasts forever. The new law downgraded the right to last only for as long as the economic rights (generally the author's lifetime plus 50 years). This is unacceptable because it limits that part of copyright that is a human right. Today, a bill is being discussed in the Philippine House of Representatives to revert back to the old rule. I hope that the fruit of these discussions finds its way into law very soon.


Common law traditions, on the other hand, tend to focus on the economic benefits of copyright and how it can be used to generate wealth. In Philippine law, these are called economic rights. Economic rights necessarily last only for a certain period of time because they are only statutory grants used to secure a return on investment plus profits for the creator of a work and his or her heirs. 


This is the part of copyright that I consider merely a temporary grant by law, which may be removed or suspended for a greater public purpose. They are not imprescriptible, inherent, inalienable or universal. They, therefore, do not possess the essential characteristics of human rights. 


So here we have the Philippine copyright system. By way of Spain, we carry the long-standing traditions of civil law going back to the Roman Empire -- a philosophy which treats authorship with unique but well-deserved reverence. By way of America, we carry enterprising prowess of the common law tradition -- a philosophy grounded more on giving each creator a livelihood and a chance at survival. And somewhere in the middle of all this, we find ourselves still trying to figure out what to do with our inexhaustible creativity and how it can lift us up to better places. 


For now, we can rest better knowing that we do possess human rights as creators... Partially.

_____

For further reading:

See Mark Robert A. Dy, Teach the World to Sing: Restructuring Philippine Copyright Law under a Regime of Free Expression and Culture (2009) (unpublished J.D. Thesis, Ateneo de Manila University School of Law) (on file with the Ateneo Professional Schools Library). 

Simply Great

To become truly great, one has to stand with people, not above them.

- CHARLES DE MONTESQUIEU

In this world of greed and inflated egos, this is a story that must be told so that we might remember that there are still wonderful people out there... that there are still gestures of greatness, no matter how seemingly simple for the originator.


This week, some people from work and I were doing the final edit of a WIPO Copyright Book. We wanted to "Filipinize" the book by changing the examples to suit Filipino culture and experience.


One of the examples in the book was a comic strip by a famous American cartoonist. We wanted to transform the page, and one thing instantly came to mind: Pugad Baboy by Pol Medina, Jr.


I was hesitant at first in asking Mr. Medina for permission to use one of his book covers for the publication. Nevertheless, we sent him an email and formally asked for his permission.


He replied and said "yes" immediately. We were ecstatic. 


And so that was that... or so we thought... 


Three hours later another email arrives... and lo and behold... Mr. Pol Medina, Jr. sent us a strip specially customized for IP Philippines.

This was so much more than we could ask for. He was able, to sum up in four boxes what the office has been trying to do for many decades.


Medina is one of the biggest names, if not the biggest, in the industry. He reportedly earns five figures each day for a single strip on the Philippine Daily Inquirer... and yet, with this single stroke, he obliterated the mystique that surrounded his person and his empire... his generosity and humility is something that just gives me goosebumps each time I think about it.


We don't need to save lives to be great. We don't need to die as martyrs or run for president to be remembered forever.


Sometimes, doing what you do every single day generously and with a humble heart is enough. This time, it truly was.


Mabuhay ka, Pol Medina, Jr.! Mabuhay ang Pugad Baboy!


To know more about the cartoon, see:
http://en.wikipedia.org/wiki/Pugad_Baboy

Yellow

I am not embarrassed to tell you that I believe in miracles.

-    CORAZON C. AQUINO

Have we forgotten?


… that we were once the masters of democracy?


… that in 1986, long before anyone had even heard of Barack Obama, there was a more pronounced and dynamic miracle here in our very own islands?


… that we were the envy of the world for our singular display of peace, reconciliation and true power?


Back in the day when power was yielded by the vicious, it was unthinkable that a housewife with no political ambition could topple down a twenty-year-old empire. The proud few fell under the furious voice of the humble in glorious unison. 


“No more”, they said. 


“Not in my country”, they said even louder.


To avoid falling into the trap of romanticizing the past too much, understand that it was no secret that Tita Cory had her share of failures and frustrations. As her administration was cursed by violent coups, natural disasters, and economic ruin, she had an army of critics that watched her every move. This forced her team to be dynamic in both composition and strategy. In the end, she never really settled in. There was no calm -- no settling of the dust from the aftershock of Marcosian and natural devastation. She sat at the edge of her seat during her entire service.


President Aquino was not your typical idealized hero. She was not one who rose from the masses to become a champion of the people. She was never in war, or tortured, or humiliated. She was part of the elite Cojuangco family that had much in life. She had everything she ever needed, including a US education, a secure family and a fount of inexhaustible finances. 


She could easily have sat back to watch the wicked and the greedy devour each other while keeping her family safe, not losing a single night’s rest. But she chose a difficult life. She chose to jump into the fray and serve her God and her people. 


It was her great personal sacrifice that won for us a sustained increase in national hope. It was this -- her resolve to abandon the quiet life that she craved in exchange for a life lived for everyone else -- that made the Filipino people feel even human again.


The years when she was in the Palace were not the most productive years for the Philippines… they were not the happiest years… they weren’t even the most peaceful years… 


… but they were certainly the most hopeful years.


And we lost this because we have forgotten that it's not what you have or what you've been through that defines you as a true leader… It’s how much you’re willing to give up.


That is the story of Corazon C. Aquino.


And it is a story we must constantly revisit and learn from.


Because certain great sacrifices have to be made in the months to come… and we shall see who will finally step up to take the challenge head-on.


Rest in peace, Madame President.

Royal Blues

Published in Cebu Gold Star Daily

No law granting a title of royalty or nobility shall be enacted.

-     THE PHILIPPINE CONSTITUTION

One of the most unsightly words in the English language is entitlement. It suggests baseless superiority of a group of persons because of accident or the work of their forebears. It suggests that genetics and succession absolutely decide one’s rights and options in life. 


What I hate even more is that we allow this to be true by our actions and inaction.


The people who run this country and the world mostly consist of these presumptuous heirs of the wealthy and powerful. They are the landowners who resist the changing social needs and choose to keep their huge tracts of unproductive land for their own pleasure. They are the sons and daughters of privilege, luck, and influence who breeze through life with fancy clothes, nightclubs and designer drugs. They carry their names proudly like banners of moral terrorism against all who live quiet normal lives.


We may not have a nominal house of nobles, but our government seems to act like one. During the past weeks, many of these persons who claim to be our representatives have proved to act only for themselves and those they owe allegiance to. They use culture, breeding, and pretty words to justify keeping what they already have, without moving an inch to improve the lives of those who look up to them for succor. 


Feudalism in Europe and Japan has ended long, long ago. But the Philippines still carries the system with pride. People still lord over the poor just as they did during the middle ages. Too bad our nobles do not fight it out as the knights of olden times did. Too bad our system of choosing leaders no longer involves strength, intelligence, and compassion, otherwise we would have a President who is a combination of Manny Pacquiao, Epifanio de Los Santos, and Cardinal Sin. A very tall order, but a striking ideal, nonetheless.


We hate being called a nation of servants to our face, only because we cannot and will not face the unsweetened truth. We are servants under very few but very powerful masters. Most of us live under the poverty line, even after a full degree of college. The poor stay landless and dreamless as they eat scraps from the tables of the greediest members of Filipino society. 


And here we are, the educated middle class, caught in the center of a raging storm ready to erupt into cleansing bloodshed. We can either choose to imitate those above us and accumulate everything we can for ourselves, or we can look below us and pull up as many people as we can from their hellish lives. 


The good news is that we are not a defeated nation. Everywhere you look today you see collective movements and powerful dissent – clusters of resistance that act as breakwaters that stand against the crashing waves of the tainted and the corrupt. People from all walks of life, young and old, wealthy and poor are coming together to defend human solidarity against those who act only for themselves.


Let us bring down our masters by exposing them for what they truly are -- greedy animals, undeserving of the powers and duties entrusted to them. Let us be merciless in our search for truth so that we might all be able to act with our very best judgment.


To save our country and our people, we must be a nation of servants… and be damn proud of it.

Steering A Nation

Published in Cebu Gold Star Daily

If a man does not know what port he is steering for, no wind is favorable to him.  

-- SENECA

Individual behavior is a result of the series and combinations of rewards and punishments a person receives throughout his or her life. In the most extreme, those who commit criminal acts are placed behind bars or fined while those who accomplish great things are rewarded by fame and fortune. In the center is a wide expanse of gray area of where minor behavioral nuances can no longer be micromanaged. Nonetheless, they can be generally steered by policy and law.


Taxation is the system of reward and punishment that leads the general populace to move towards certain behaviors while avoiding others. It is a process of soft obliteration, where undesired actions less than criminal are quelled. Imposing high taxes on certain industries like mining or logging can protect the ecology by some measure. Lowering taxes on green industries can encourage investment in these protective ventures.


Unfortunately, this behavioral control mechanism is not fully utilized in our islands. European countries, for example, charge very hefty luxury taxes on vices while keeping collections minimum for education. It sends a message to people that if you want to use your money for unproductive activities, you have to pay a high price for it. If you use it for something desirable, you will get some reprieve from the tax collector.


In our case, the government has already tried to impose greater taxes on book importations. It failed mainly due to political pressure, not sound judgment. Many legislators have proposed large ‘sin taxes’ but they keep getting stopped in their tracks by industry lobbyists, resulting in the cheapest liquor and tobacco to be found in the region.


Governance is one great social experiment, and although there is some leeway for creativity, there are general policies that ought to be maintained. Education must be supported while violence is to be eliminated. Productivity and hard work must be encouraged while destructive behavior must be penalized. Health is to be protected while environmental damage must be kept at a negligible minimum. 


For now, it is comforting to know that our Constitution has tax measures that protect educational, religious and civic interests. But even the solid foundations of our organic law are being grinded by our so-called ‘representatives’, who have very fat business interests. There are those intent in practically selling the country to foreign powers who have no interest other than profit, while local farmers walk on, landless. 


How do we steer national behavior when those who vote on these issues in our behalf have interests that conflict with ours – when those who command our tax collectors and cops give in to the temptations that such awesome powers provide? 


It all comes down to the populace and their ability to come together and express their frustrations and aspirations through their votes and their collective actions.


Democracy is not dead. It only remains misunderstood, misguided and unclaimed. In less than a year’s time, we will once again be collectively challenged to act with our best judgment. 


Let us steer the nation harder to a better place this time. 


No more excuses.

Greatest of Virtues

Published in Cebu Gold Star Daily


If you’ve seen the film The Devil’s Advocate, you will certainly remember Al Pacino as the dark prince, repeatedly describing vanity as his “favorite sin”. 


Indeed, it is the greatest evil we could allow into our lives because it is the essential first step in getting into more trouble. Pride is the attitude of the wicked and the cruel. It leads to selfishness, deceit, envy, greed, ignorance and finally, violence. History is filled with famous proud butchers: Napoleon Bonaparte, Hitler, Genghis Khan, Joseph Stalin, Mao Zedong and our very own Ferdinand Marcos. These highly intelligent and highly ambitious people were pinnacles of human pride and brutality. They just didn’t know when to stop, and so their own mortality silenced them and cursed them upon the dark pages of human history forever. 


On the flip side of the coin, I believe that humility is the greatest virtue accessible to humanity. Great deeds of love and kindness are products of the most humble figures in history: Siddhārtha Gautama, Muhammad, Jesus Christ, Mahatma Gandhi and Mother Teresa. These are people that millions try to emulate, because they were great in their humility. They did not claim glory or wealth, but their small individual acts of kindness snowballed into global movements for change and unity. 


Humility is also the key to successful relationships. It ensures that we do not put ourselves above other people. It keeps our eyes and ears open, giving us a life of perpetual learning. It reminds that everything we are, have and know are fleeting – that we are a fraction of a speck in the grand scheme of the universe. 


Proud people just talk loud, exclude everyone from their tiny worlds and never run out of excuses each time they fail. They live in constant fear and distrust. They believe in the illusion of superiority, and waste their time chastising others who they consider inferior. They cannot survive even the smallest form of criticism, and so they shut themselves inside tiny boxes ignorance and fear. They become slaves to wealth and power, always clawing for more. Never having a moment’s rest. Never satisfied. They stop growing and drag everyone else down with them.


Humble people do not speak of their achievements and talents, but celebrate them by using them for others. They know that they live on borrowed time and work with borrowed resources. With this mindset of gratitude, they are able to create lasting good in their circles of influence. With humility comes detachment from material things and temporary successes, giving us freedom to move, discover and understand.


I say these things because I want to be reminded of that slippery slope we are prone to rolling into, as we grow older. That ominous tendency to glorify ourselves comes to haunt us more often as we accomplish more. Celebrating degrees, titles and awards are all well and good for a night. But when we get back into the difficult real world, we are all the same. None of it will matter. We all have to pull our own weight and help those who cannot. 


The funny truth is this: The more we learn, the more we realize that we know so little. 


As I end my long years formal education, I pray that I will never forget this… as well as those around me.

The World is Skewed

Published in Cebu Gold Star Daily


On paper and as an ideal, globalization promises a new economic world order that will uplift humanity to heights difficult to imagine. The free exchange of goods and services promises to create a single global market where the only restriction is the law of supply and demand. 


Grand plans… grand promises… but at what cost?


To get to that ideal, many people have to give up their livelihood. Small-scale farmers and fishermen will have to abandon their trades when faced by the uncontrollable influx of cheaper imported goods. Small-scale businesses and neighborhood shops will be crushed under the heels of large foreign-owned shopping centers. 


Cheaper goods and services might look like a strong selling point for consumers, but you have to remember that every consumer is also a producer and a service provider. What use are cheaper goods when people’s incomes are obliterated by unfair competition? What’s the point of having retail prices of your favorite grocery store cut in half when you have to close your own shop permanently?


To make this great economic omelette, we have to break a whole lot of eggs. Millions will plunge into hopeless destitution, while the few truly big businesses continue to balloon into grotesque proportions. The poor stay poor, the middle class joins them and the rich become gods.


To look at the end-goal without seeing the painful steps leading to that goal is Social Darwinism at its very worst. It attacks the life, liberty and property of the most marginalized sectors of society, widening the already vast chasm that separates the rich from the poor. Social ills are exponentially amplified, turning pride of labor into systematic worldwide greed. 


Powerful first-world countries welcome globalization with arms wide open, but for a tiny nation like ours, nationalist economics is our final line of defense against the tidal waves of mass production just waiting to erase entire industries and cultures. 


I do not dare to question the bigger-picture wisdom of economics experts, but to my mind, the evils needed to reach their goals are simply unacceptable. 


Is there a way around it? Is there a better way to do this?


There is. But for now, richer countries are not willing to give us a truly meaningful and effective quid pro quo situation. Their industries are allowed to flourish in our land, while they prevent our greatest and most abundant resource from being fully utilized. If they are allowed to sell their goods here without restriction, our people should be allowed to travel to and work in their countries similarly without restriction. This is how we create a formidable middle class. This is how economic balance is achieved. This is how globalization becomes a cultural revolution, rather than just a concept of economics. Instead, they use security reasons and terrorism scares to keep global trade consistently skewed in their favor. 


I used to be a believer in big-picture economics and full globalization. But as we draw deeper into this socio-economic experiment, the picture becomes uglier and uglier. Maybe it’s time to take a few paces back, cut our losses and try to figure all this out.


Higher productivity is no excuse for the perpetuation of human suffering. In its present form, globalization is a lethal pill to the most vulnerable nations in the world. Unless we come up with a better strategy and an honest will to bring economic fairness in the world, all this is simply unacceptable.

Philippine Emancipation

Published in Cebu Gold Star Daily


The Philippines is the oldest democracy in Asia. In our minds, we believe strongly in equality, freedom, justice and human rights. 


In our minds.


We are one of the poorest nations in the world and yet we have the most number of servants per household. We live in a country where it is customary to leave the care of our children and our homes to people we pay a very minimal amount of money and provide very few benefits to. 


The rich down to the middle class have become so accustomed to this social setup that they see no reason to stir the waters with inconvenient change. The poor who constitute the ‘informal service industry’ also do not complain, either because of innate Filipino meekness or simply because they feel ‘lucky’ to even have a job at all. 


Worse than the low wages are the ‘house rules and conditions’ we impose upon them. We confine them in our homes inside tiny living quarters with bad ventilation and nothing but a straw mat to sleep on, while we sleep soundly on soft mattresses inside air-conditioned rooms. They do nothing but work all day everyday and are always on call, often disturbed from their sleep late at night to open our gates as we come home from clubbing or a poker game. The next day, they wake up before the sun to water the plants, sweep the floor, cook breakfast and walk the dogs, so that when their masters wake up, everything is in perfect shape. We always eat before they do and provide them with either our leftovers or unhealthy canned goods and noodles. We give them a day off but expect them to come home in time to prepare supper. We prohibit them from dating because we fear losing their services should they decide found a family of their own. 


Sound familiar?


Of course, I speak of averages. The worst ‘masters’ among us shout at their helpers and even call them names. In the very worst scenarios, physical abuse is an everyday thing.


The best of us offer education and health benefits to our domestic companions and even give them opportunities to augment their income through livelihood programs. Some employers always have their helpers with them at the same table no matter where they choose to dine. Few even get to travel around the world for free. But this, of course, is an anecdotal rarity.


Nonetheless, most of our house helpers suffer the very worst working conditions in and outside the country. Even Philippine labor law treats them as sub-human workers who deserve much less than everyone else who works as hard or less.


This unspoken Filipino caste system has gone on for so long that we even export our helpers to every country in the world who would have them. Some foreign employers have inherited our habits and take the atrocities even further by confiscating their helper’s passport and locking them up in their houses. 


It is no revelation that foreigners see the Philippines as the number one outsourcer of help. Our people manage and maintain the households of thousands upon thousands of people all over the world, and they get very little in return. Few complain. Few earn enough to live decent lives and die with dignity. 


Why do we allow this? 


Because it is convenient.


This is something we do not bother to even talk about. Maybe it took a few heart piercing words by a Hong Kong writer to make us see our own errors. Indeed, the truth hurts. But what do we do about it? 


These are the people we trust with our most precious possessions: our homes and our children. Do we really want to treat them badly?

Check and Balance

Published in Cebu Gold Star Daily


A recent Pulse Asia survey regarding the Filipino opinion about charter change shows that about 42% reject it. But the more alarming finding is that 57% of Filipinos know little to nothing about the Constitution. Although I have this inherent distrust for survey results, experientially, this figure seems to be true. Even I knew very little about our most basic law before entering law school. I just never bothered to learn it back then. And like so many of our Filipino youth, I just didn’t care.


Now that I work for the Filipino people, I have no choice but to do care. So allow me to explain our system of government and how it is supposed to work. 


Our government is composed of three parts or branches. 


We have the Legislative Branch or the people who make the laws. These are the House of Representatives and the Senate. Legislative Power is otherwise known as the Power of the Purse because it is the lawmakers who design the national budget.


We have the Executive Branch or the people who implement the law. These are the President, the Cabinet members and everyone else working under the different departments. Executive Power is also called the Power of the Sword because it is the Executive that imposes the law and controls the police and the military.


Finally, we have the Judicial Branch or the people who interpret the law in actual cases. These are the Supreme Court justices and the justices and judges of the lower courts. Judicial Power is sometimes referred to as the Power of the Scales because it is the courts that have the final word on actual cases or controversies. 


Power is spread out among these three branches because of a long history of world experience that if power belonged only to one person or to a single family, there will be tyranny. By giving specific groups specific powers and duties, they are able to check and balance each other’s actions so that minimal damage will arise out of any fault or error by any individual person in government. In other words, our system essentially is a result of a well-placed mistrust in human nature. This is called the Separation of Powers.


How do these checks and balances work? In several ways:

1. If Legislature approves a bad law, the Executive can veto it. If the Executive abuses his veto, the Legislature can, in turn, override it by getting a higher vote.
2. If the Judiciary makes a bad decision in a criminal case, the Executive can pardon the convicted person and set him free.
3. If the Executive assigns unworthy or questionable persons to the Cabinet or to certain key government positions, this decision can be rejected by the Commission on Appointments under the Legislative Branch of government.
4. If certain government officials, namely the President, the Vice-President, the Supreme Court Justices, the Commissioners of the Commission on Elections, Audit and Civil Service, and the Ombudsman prove to be unworthy of their positions, they can be impeached with the initiative of the Legislative Branch.
5. Finally, if any person in government exercises his or her power with grave abuse of discretion, the Judiciary can reverse, modify or set aside that abusive exercise of power and order that person to behave properly.

All these are designed to keep power in its proper place.


Sadly, these checks and balances have mostly been illusory in recent years. The Supreme Court Justices, Members of Congress and even the Ombudsman are either friends or family of the President. There exists a personal touch that contorts the entire system into something no longer recognizable as a democracy. The Philippines has been disfigured under the rule of pakikisama. What we used to consider as a value is now proving to be a serious liability and a blockade against national unity and freedom. 


After all is said and done, the ultimate check and balance comes from us – the common people. We vote for our leaders, their policies, attitudes, experience, education, faith, prejudices, mistakes, triumphs and yes… their families. Our collective decision will form our collective destiny. 


I hope we can all remember this next year.


Register. Vote. And use nothing less than your very best judgment.

Death of a Taxman

Published in Cebu Gold Star Daily




Taxation is perhaps the most boring subject matter I can think of to write about (and the most detested subject for those who ever took the bar exams). But taxation remains, or at least it ought to be, the most effective tool for social justice. 


Long before agrarian reform, welfare and socialized housing, there was taxation. Taxes are nothing more than enforced contributions to society, where people give a certain percentage of their earnings to fund State services. It is clearly designed as form of socialism or equalizing device to shrink the gap between the rich and the poor. 


Here are the basic premises for taxation: 

1. People gain wealth by using State services and systems (e.g. land, business grants, government contracts, etc…). 
2. The more wealth you gain from this system, the more you have to contribute to keep that system running.
3. If you are poor, you need help, so you are exempted from giving your contribution to the State until you can rise to a level where you can support yourself and those who depend on you.

From this, we formed a system where the fortunate support the unfortunate to a certain extent so that the latter are given enough breathing space to improve their lot in life. Progressive taxation means that those who have more must give more, while those who have less are given assistance. 


In its proper sense, taxation ought to be taken from income – money that is gained. This ensures that taxes do not cut deep into the resources needed by people to survive. This ideal has been mangled because the rich find ways to avoid paying their rightful contributions to society. Those who ought to be supporting society are the hiding behind tax shelters and offshore dummy corporations. They avoid their social responsibility and make all these fancy legal excuses to justify greed.


So how does the government respond? By creating non-progressive fixed taxes, like the misleadingly named value-added taxes, that burden everyone equally, rich or poor. This painfully upsets the balance. After all, equal treatment of unequal people is inequality. The purpose of taxation is mangled, and people don’t know why they are suddenly paying 12% more for something that they’ve been consuming for a very long time.


On the other hand, people are quite justified in refusing to hand out their hard-earned money without seeing concrete results. Massive corruption and incompetence of government have left us a cynical people. Angry. Restless. Our taxes do not seem to be making more schools. They do not seem to stop the violence in our streets. They do not give us clean air or water. They do not seal the cracks on our roads or provide enough supplies to our hospitals. They do not seem to provide health, safety, justice, education, convenience or even access to state services.


The nasty people from both the business sector and government have turned us into this nation of whining idiots, always complaining about things we think we cannot control. They have transformed us into people who would rather ignore the difficult reality than actively steer it towards a better place. The greed of the few has virtually doomed us all… all because of money… all because our best defense against greed and inequality also involves money.


In spite of all this, I believe that a tight, disciplined and brutal taxation system managed by people with the same qualities is one of the keys to moving forward. Obliterate all the fixed taxes and optimize progressive income tax collection. This is the surest way to swell our middle class and give a fighting chance to our poor. 


The wealthy support the poor. 


That is the design. 


That is the way it should be.