Crossborder practice and multidisciplinary practice in the field of law seem to be the global rule of the day if we study the texts and spirit of the World Trade Organization (WTO) agreements and the current model rules of the American Bar Association (ABA). I have written about it in my previous blogs.
Below is the recent column of Raul Pangalangan, former dean of the college of law of the University of the Philippines, who promotes the idea of liberalizing the allegedly protectionist constitutional provisions of the Philippines insofar as certain professions are concerned, e.g. law, accountancy, medicine, and others.
Among other things, Pangalangan stated:
1. “For the legal profession, to which I belong, the Supreme Court has in fact barred not just foreigners but even Filipino citizens who got their basic law degrees abroad — which in turn favors the locally-trained native-born”.
2. “The time has come to reverse the pattern, whether by congressional revision or by judicial reinterpretation. We must advance the national interest by enabling the most sophisticated clients to access the most sophisticated professionals who can meet their price. Insulating the professions within a nationalist cocoon will stunt intellectual growth and foster in-breeding. The only way to ensure that we are competitive globally is by competing globally and winning”.
3. “Moreover, at a practical level, protectionism simply doesn’t work. One, even with the ban in place, foreigners still get to do the juiciest and most creative phases of the work, and yet stay safely below the protectionists’ radar screen. They remain invisible to local regulators by coming on board as consultants rather than, say, counsels of record. There are so many ways to tell when the professional relationship begins and what sort of advice or work constitutes practice of a profession.”
Form your own opinion.
Personally, I feel that we may allow foreign lawyers to work as in-house legal consultants of their foreign corporate clients which are licensed to do business here but only insofar as the giving of legal advice in relation to the laws and jurisprudence of the countries of nationality of their corporate clients are concerned; and that they must work with and through local Filipino law firms insofar as the giving of legal advice with respect to Philippine laws and jurisprudence are concerned.
As to appearances in courts and administrative tribunals and the handling and management of actual court and quasi-judicial litigations are concerned, I am against giving foreign lawyers such a privilege because they do not have the competence insofar as Philippine laws, jurisprudence and litigation rules are concerned and, further, because local lawyers can more ably and competently handle and manage such kind of legal work.
No attempt by Congress and the Supreme Court to liberalize the entry of foreign lawyers here should be done without widely and democratically consulting the local voluntary bar associations in the whole country, not only the mandatory Integrated Bar of the Philippines.
Passion For Reason
Protectionism isn’t for professionals
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 00:47:00 02/27/2009
Filipino professionals should seek reciprocity, not protectionism. Competition is not our enemy, it is our friend. For as long as we are confident that we stand shoulder to shoulder with foreign professionals, what we should do is not to keep out foreigners but tear down barriers that stop us from competing on a equal terms. Let us not raise protectionist walls but build merely a level playing field.
I am a total outsider to the high-profile feud within SGV & Co., the country’s leading accounting firm, and have followed the story only in the newspapers. Some accounts say that one camp has on its side the protectionist clause of the Constitution that excludes all foreigners from the practice of all professions. The argument goes: If the Manila-based SGV is “integrated” into the international firm Ernst & Young, the Filipino accountants will merely front for their foreign principals thus circumventing the Constitution, much to the chagrin of the politically correct nationalists hereabouts. I’m sure the row involves other complex issues, but my focus here is solely the entrenched protectionism of the professions, why it is disturbing and how we can solve it without Charter change. (Why give our impostor President yet another excuse for Charter change?)
Sure, the nationalists have the law on their side, but even that is not ironclad. “The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.” The exclusion is sweeping, but Congress can make exceptions. Most probably Congress won’t have the guts to stand up to the partisans of old-school nationalism, and indeed the protectionist urge is rising, not ebbing. For the legal profession, to which I belong, the Supreme Court has in fact barred not just foreigners but even Filipino citizens who got their basic law degrees abroad — which in turn favors the locally-trained native-born.
The time has come to reverse the pattern, whether by congressional revision or by judicial reinterpretation. We must advance the national interest by enabling the most sophisticated clients to access the most sophisticated professionals who can meet their price. Insulating the professions within a nationalist cocoon will stunt intellectual growth and foster in-breeding. The only way to ensure that we are competitive globally is by competing globally and winning.
Let’s hear it from Jose Rizal: “[G]enius knows no country, [it] sprouts everywhere, genius is like light, air, the patrimony of everybody, cosmopolitan like space, like life, like God.” This quote I found quite appropriately at the National Museum, beside Juan Luna’s “Spoliarium,” Gold Medal winner at the 1884 Madrid Exposition of Fine Arts. (The Silver Medal went to Felix Resurreccion Hidalgo’s “Christian Virgins Exposed to the Mob.”)
Worse, protectionism actually gives shelter to archaic and unethical practices. To my fellow lawyers out there: We know that there are Filipino workaday practices that are seen locally as a badge of survivorship and “abilidad” [ability] but abroad actually constitute shameful grounds for disbarment that the true professional doesn’t mention in polite conversation.
Moreover, at a practical level, protectionism simply doesn’t work. One, even with the ban in place, foreigners still get to do the juiciest and most creative phases of the work, and yet stay safely below the protectionists’ radar screen. They remain invisible to local regulators by coming on board as consultants rather than, say, counsels of record. There are so many ways to tell when the professional relationship begins and what sort of advice or work constitutes practice of a profession.
It doesn’t help, for instance, that the Supreme Court has so broadly defined law practice to cover “any activity, in or out of court, which requires the application of law.” If an incontinent foreigner arrives at the Manila international airport reads a sign saying “Bawal jumingle dito,” and contains himself, he had thus just engaged in the unauthorized practice of law right after someone translates for him the word “jingle” and conjugates it in Tagalog.
Moreover, despite the rising tide of nationalism these past decades, the SC has actually held that Filipino CPAs enjoyed reciprocity in one foreign jurisdiction when, it turns out, no governmental impediments stood because in the first place their accountants were “chartered” by private societies, not by the state. Again, knee-jerk patriotism was unable to detect real barriers to the Filipino accountant. There are subtle ways to exclude us (e.g., non-recognition of professional credentials, like the de-certified nursing boards after a recent cheating scandal) or for us to exclude them (e.g., give the bar exams in Filipino and ask them to use certiorari as a verb in the future tense).
In a way, this entire debate is actually moot and academic. With or without protectionism, foreign firms end up having to tie up with Filipino firms in order to do local business. The tie-up is the inevitable localization of global practice. The only thing that protectionism does is to downgrade it as a constitutionalized form of rent-seeking. We end up doing the same thing, but feel cheap doing it.
In the Constitution, the “Filipino professionals only” clause is found in the article on the National Economy and Patrimony. The Filipino professional is a national resource, no different from gold mines in our mountains, the waters flowing in our rivers, the airwaves for telecommunications — all these are the Filipinos’ sole domain. But professional expertise is distinct in one respect: it thrives best in competition with the brightest. Protectionism, how many more crimes will be committed in thy name?
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20090227-191270/Protectionism-isnt-for-professionals
