This example is an attempt to simplify and illustrate the conundrum surrounding the practice of

professions by foreign nationals in the Philippines. The parents are our government and the children are
the citizens. Under Article XII, Section 14 of our Constitution, the government seeks to protect its
children by providing that, the practice of all professions in the Philippines shall be limited to Filipino
citizens Yet in the next breath qualifies it with save in cases prescribed by law.

Republic Act No. 8981 (a.k.a. the PRC Modernization Act of 2000) is an example of the statutory
permission referred to. Under the law, the Professional Regulation Commission has the power to
approve the registration and authorize the issuance of a certificate of registration/license to a foreign
professional who is registered under the laws of his country and whose registration issued therein has
not been revoked.

Last year, PRC Resolution No. 2012-668 laid down the guidelines for implementing this statute and held
that, pursuant to Presidential Decree No. 541, former Filipino professionals who have become
naturalized foreigners are still allowed to practice their professions in the Philippines. Also, foreign
nationals under the General Agreement on Trade in Services (GATS) and other international agreements
may opt to practice their professions in the Philippines subject to agreed terms and conditions.

One of the driving forces behind allowing foreigners to practice in the Philippines is the international law
concept of reciprocity. Simply put, this encapsulates the policy of quid pro quo on an international level.
Hence, R.A. 8981 also provides that in order for a foreigner to be granted a license to practice in the
Philippines, the laws of his foreign state or country must allow the citizens of the Philippines to practice
the profession on the same basis and grant the same privileges as those enjoyed by the subjects or
citizens of such foreign state or country. Reciprocity is often used as a tool of negotiation.

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However, the reality of the situation is that very few foreign nationals apply to the PRC other than for
temporary permits. First of all, the administrative requirements are difficult to comply with. Second, few
foreign professionals find the low-paying jobs here to be any kind of enticement.

Furthermore, some foreign professionals circumvent the procedure entirely because their undertakings
are not strictly legal. For example, foreign doctors who have been performing illegal stem cell
procedures in posh downtown hotels for millions of pesos have recently made headlines. The DOH has
only approved so far the Autologous Adult Stem Cells which are taken from the patients own
blood, bone marrow and fat, yet these are not the purest forms of stem cells. Some foreign doctors,
however, have been performing illegal procedures using stem cells derived from human embryonic
tissues and even alternative xenogenic (plant or animal) tissue cells. And although these are arguably
more potent, the health risks are also much higher. Patients have already died as a result of
complications. The fact that these sessions are conducted in hotel rooms without the benefit of a lab,
staff, or medical equipment makes it all the more dangerous. The Philippine government therefore,
through the Department of Health, the Board of Medicine and others, has been very active recently in
taking up means to regulate the practice.

This is all well and good for trying to protect people from snake oil, medicine after all is a field of special
responsibility. But in cases not as problematic as stem cell therapy, there may be excessive prudence.
Last year, there was discussion of having licensing requirements extend past these new, untested
treatments and into regular practice of medicine. The proposal involved having medical missions pay for
permits to practice in the country. These types of barriers, both financial and logistical, may discourage
aid to much needed areas from foreign bodies. Considering the universality of the science of medicine,
one would imagine this is a little unnecessary for doctors who are licensed elsewhere.

Finally, certain professions remain closed to foreigners, usually on account of the great public interest in
the practice (i.e. the practice of law); yet perhaps it is time to revisit this position again. Last January 16,
speaking before members of the Integrated Bar of the Philippines, Senator Angara insisted that the
Philippines ought to open the practice of law to foreigners. He pointed out the need of our country to
change with the rest of the world, explaining that the Philippines is the only country left in Asia which
does not allow foreign lawyers to practice within its borders. It is a process of isolation which will
invariably leave the Philippines out of the loop internationally. Indeed, between GATS and the
imminence of the integration of the ASEAN Economic Community in 2015, it behoves us to check
whether our paradigms need shifting.

* * * *

It has been said that arguing against globalization is like arguing against the laws of gravity. Kofi
Annan

Let me now zero in on the controversial rule that Justice Secretary Leila de Lima and several others have
been ranting about.

Rule 4, Section 5 of the JBC rules provides:

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Disqualification. The following are disqualified from being nominated for appointment to any judicial
post or as Ombudsman or Deputy Ombudsman:

1. Those with pending criminal or regular administrative cases;

2. Those with pending criminal cases in foreign courts or tribunals; and

3. Those who have been convicted in any criminal case; or in an administrative case, where the penalty
imposed is at least a fine of more than P10,000, unless he has been granted judicial clemency.

* * * *

Let me join the chorus of opposition seeking an amendment to the rule. And I do support the
proposition that rules should be applied equally.

Given the relative ease within which any one can file a case in our country (without any real
consequential penalty for the person who files in the event the case is dismissed), the JBC should not
automatically disqualify candidates with pending cases.

I was a victim of such Legal harassment. Three days before I was interviewed, a complaint was filed
against me and a PCGG colleague for actions committed by our predecessors. If the case was truly
meritorious, query as to the timing of the filing particularly since the alleged actions complained about
happened years ago? And to think that in order to comply with one of the requirements for nomination,
I had earlier obtained a clearance dated July 4, 2012 from the Office of the Ombudsman certifying that I
had no pending cases therein.

Indeed, the penalty of automatic disqualification raises both due process and presumption of innocence
issues. It is not only fair that nominees be given the opportunity to adequately respond to any
opposition filed, but that the JBC should also conduct a preliminary proceeding that will allow it to make
a prima facie determination on the gravity of the charge and weight of the evidence presented. In the
same vein, former Senator Rene Saguisags eloquent observations on this point are instructive:

I have kept hammering and pounding that both the Constitution (Art. III, Sec. 14*2*) and the Universal
Declaration of Human Rights (Art. 11), which forms part of the law of the land, presume innocence.

If it is so concerned with charges, then the JBC may more reasonably have an aspirant sign an
undertaking of automatic resignation effective when an adverse judgment may have become final,
unappealable and executory. This a litigious society we live in where anyone can charge anyone. Thus a
witness may not be asked whether he is facing a charge but must answer to the fact of his previous
final conviction for an offense. Rules of Court, Rule 132, Sec. 3(5). A wise provision the JBC has turned
on its head.


Ninoy Aquino faced so many spurious charges. But, even as a convict, not by final judgment, he was
allowed to run. Even Romy Jalosjos (I helped handle his electoral cases on eligibility), won two
reelections by ever-widening margins, and stripped of his post in Congress only by final, unappealable
and executory judgment the fairer policy the JBC incomprehensibly rejects in gross violation of a basic
human and constitutional right.

Bottomline, the JBC rule should be amended so that a pending case would not result to an outright
disqualification. Rather, a case should be independently assessed by the JBC and used as one of the
criteria to decide whether a nominee should be included in the short list. This way, a persons
presumption of innocence is honored, due process rights are observed but at the same time, the
integrity of the JBCs vetting process is preserved.

* * * *
Legal safeguards: Because of the abuses experienced during the 1972 martial law regime, the framers of
the 1987 Constitution provided checks to the Presidents Commander-in-Chief powers. Among the
safeguards instituted are: 1) The suspension and/or proclamation shall not exceed 60 days unless
Congress extends it; 2) Congress, if not in session, needs to convene within 24 hours while the President
has 48 hours to submit a report in person or in writing to Congress. While Malacaang was able to
comply with the 48-hour requirement when it submitted the report last Monday, it took Congress 96
hours to convene reasoning that they could not get together earlier if there was no report to consider.
Another reason they posed for the delay was the need to formulate rules for the joint session; 3)
Congress, voting jointly, by majority vote of all its members, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Note that this is the only instance
in the Constitution where joint Congressional voting is provided so the votes of the bigger House of
Representatives can overwhelm the smaller Senate; 4) The Supreme Court may review the factual basis
of the decision within 30 days from filing of an appropriate proceeding. As of this writing, seven
petitions have been filed questioning the proclamation so a decision will need to be promulgated by the
high court within the first week of January 2010; 5) Martial law does not suspend the operation of the
Constitution, supplant the functioning of courts or legislative assemblies nor authorize military courts to
take jurisdiction over civilians; 6) The suspension of the privilege of the writ of habeas corpus only
applies to persons judicially charged for rebellion and that any person arrested or detained shall be so
charged within three days, otherwise he shall be released. However, our prosecutors should keep in
mind that the penalty for murder is much higher than the penalty for rebellion.

Legal effects: The crime of rebellion is clearly defined in the Revised Penal Code. Its objective is to take
up arms against duly constituted authorities. It is a political offense directed towards removing
allegiance from established government. That seems not to have happened in Maguindanao. So from a
strictly legal perspective, martial law is not justified. And yet the enormity and brutality of the crime
could sway our lawmakers and justices to go beyond the legal realm. The subsequent discovery of
sophisticated weapons, not to mention the luxury homes and vehicles, provide added emotional
support for them to look the other way.

To be honest, I am not sure how martial law as envisioned in the 1987 Constitution impacts
administrative governance. For example, does it allow the military to conduct warrantless arrests and
searches in the entire province? How does the appointment of a martial law administrator affect the
hierarchy of authority in the local government unit? The forthcoming Supreme Court decision should be
instructive on these points. Regarding the latter, I hope that any technicality brought about by the
martial law proclamation will not be used to frustrate the ends of justice.