Response on the Challenges to the Practice of Law and ASEAN Integration

 

 

It has only been lately that many of us took serious notice of the inevitable and impending occurrence that by the end of the year, on December 31, 2015, the ASEAN Economic Community (AEC), with the Philippines as an integral partner, shall officially be established. This comes in the wake of the ASEAN Charter, which was entered into by the Philippines and nine other ASEAN countries, on November 20, 2007.

 

Because of the ASEAN Charter, the Philippines becomes a member of a new legal entity. We are now part of a new legal regional community, committed to opening our borders, in order to create a single market and production base... with effective facilitation of trade and investment in which there is free flow of goods, services and investment [and to] facilitate movement of business persons, professionals, talents and labor, and freer flow of capital” (Art. 1, (5) ASEAN Charter).

 

While first and foremost we are Filipinos, we are now also citizens of ASEAN officially and legally. A new era has dawned upon us. It is an era of integration, open transnational borders, and liberalization.

 

While the integration and cross-border liberalization of the relationships among the 10 countries brings with it new opportunities and expected benefits to the people of ASEAN, it also brings great tests and challenges. While the original and principal thrust of ASEAN agreements were political and economic, it becomes inescapable that the new realities in ASEAN would have a critical impact on the laws and legal systems of the member countries, the lawyers, the legal communities, law students, and legal education.

 

The prospect of attempting to harmonize the diverse legal systems of the 10 countries of ASEAN – so that they can work with each other without sacrificing the independence and integrity of each – shall be a daunting endeavor. This is because among the 10 member countries of ASEAN we can find communist systems, authoritarian regimes, democratic governments of varying forms and types, and contrasting judicial systems. The gigantic challenge is to find a way to blend them into a rainbow governed by a rule of law acceptable to all.

 

Liberalizing the legal profession within and among ASEAN countries shall be easier said than done. For example, if we were to compare the Philippines and Singapore, one discovers that Singapore has been exploring, with varying degrees of success and failures, ways and means to liberalize its legal services and open it even to non-Singaporean lawyers and practitioners. Obviously it is making an early bid, before any of the other countries in the region, to become the legal hub of the new ASEAN community.

 

In contrast, the Philippines has a very prohibitive and protectionist policy on the practice of law. Our Constitution expressly limits the practice of law only to citizens of the Philippines. We must still arrive at a consensus on whether we want that changed or not. And even if we wanted to, we as lawyers know how difficult it is to amend the present constitution considering its vague provisions on amendments.

 

Even with the built-in difficulty, the fact of the matter however is that today there are already more and frequent exchanges of legal services with foreign lawyers within our own country. They come in many shapes and form.

 

And we must, even now, disabuse our minds in the belief that only the elite law firms in the Makati and Manila area will be affected by the liberalization in the practice of law.

 

There are many concerns that will soon need the attention of even the so-called “provincial practitioners” like us and many of those gathered here. Among them would be labor, indigenous peoples, human trafficking, drugs, environment, mining, human rights, and so forth, especially when such concerns touch the livelihood and the families of ordinary citizens that live within our areas. Very soon the ASEAN integration will touch most of us. We cannot continue to dwell merely with parochial concerns.

 

Very soon also, in the resolution of cross-border disputes, we must learn to use avenues outside of the regular courts. Access to justice will continue to be redefined. If we are to become relevant, we cannot allow the lawyers from other ASEAN countries to marginalize the Filipino lawyer in dealing with transnational legal interactions concerning our country and people. Like all other lawyers in the other ASEAN countries we are all beginners in this experiment. We cannot afford to lose to our neighbors by default.

 

The lawyers of today can in a sense be considered pioneers in the new frontiers of regional law. The law of the ASEAN will be written by the present jurists and lawyers, but will continue to be crafted by the next generation of lawyers in the coming decades. We are fortunate in that we will participate in the same discourse to chart the direction that ASEAN regional law will take in a manner equal with all other lawyers of the region. But our parity with our colleagues in other countries will not however be given to us on a silver platter. We must earn it. We must compete with them to deserve it. 

 

The coming generations of Filipino lawyers must be better prepared than those of us who today are simply thrown into the water and forced to swim and survive the unexplored currents of integration and liberalization.

 

The common observation, and not without basis, is that the Philippine legal education today is bar-oriented. The curriculum is geared towards exposure to bar subjects so that law schools can prepare their graduates for the bar and get a high passing percentage. It is still the accepted benchmark for schools and bar candidates.

 

Debates about how legal education can be improved and whether the bar exams continue to be the best gauge for law graduates and the best preparation for future members of the bar have long bedeviled the legal community. While we had the luxury of time and leisure to engage in that discourse in the past, we must now re-examine Philippine legal education with a sense of urgency.

 

Our graduates must be able to keep up not only with local law, but with the opening of our borders to the new legal ASEAN community, they must also be able to hold their own among their peers from other countries, otherwise lawyers from other countries will dictate the pace of the evolution of the law even within our borders.

 

 

The above-piece was delivered by UB School of Law dean Pablito Sanidad Sr. in an event at the University on May 23, 2015.

   

 

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