UP Law Hosts CALESA Project

The UP College of Law hosted the Sixth Spanish-Filipino Congress in Malcolm Hall, June 10-11, 2022. With the theme of “Modernizing Criminal Law and Private Law,” delegates from the University of Malaga, Spain, and from local Universities gathered to share their discourse on the subject.

The Congress was an activity of the CALESA (Capacity building for Legal and Social Advancement) Project of the European Commission, coordinated by the University of Malaga with other international partner institutions in higher education. In the Philippines, this cooperation focuses on the development of law and legal education and the UP Law Center is listed as a partner institute.

The sixth Congress began with Dean Juan José Hinojosa Torralvo (Faculty of Law, University of Malaga) and Professor José Manuel de Torres Perea (Coordinator, CALESA Project) sharing the significance of the relationship between Spanish and Philippine laws. Professor Torres Perea introduced the CALESA Project and discussed its goals. Both speakers honored the late Professor Ruben F. Balane, respected legal scholar and mentor to generations of Filipino law students. Professor Balane was literate in Spanish and “[i]n his last few years, he helped build a continuing exchange between Filipino and European legal scholars and institutions.”^[1]

Associate Dean Solomon F. Lumba as the host, also gave an opening message. He noted that the CALESA project was Professor Balane’s dream and that he lamented that Professor Balane could not witness his dream fully realized. He welcomed the delegates and introduced the keynote speaker, Senior Associate Justice Marvic M.V.F Leonen.

In his speech, Justice Leonen challenged the delegates to think critically about justice and the law. He began his talk by pointing out the difference between the two concepts. He elaborated on the thought that what is legal is not necessarily just. He talked about how we need lawyers who can use the law to achieve justice and social change. Relating this to the theme of the Congress, he pointed out the unstated framework of the CALESA project: “The law is not yet just, and we should continue to work towards social justice.” Justice Leonen concluded his speech by commending this initiative.

The UP Conchords of the College of Music serenaded the delegates after the keynote speech.

This was followed by representatives of various partner institutes who expressed their enthusiasm for the CALESA project via a video presentation. Among them were (1) Magnifico Señor Don José Ángel Nárvaez Bueno (Rector de la Universidad de Malaga), (2) Fr. Karel S. San Juan, SJ (President, Ateneo de Zamboanga University), (3) Hon. Rosmari D. Carandang (Chancellor, PHILJA), (4) Jose Mari G. Hofileña (Dean, Ateneo De Manila University School of Law), (5) Jose Mari U. Tirol (Dean, University of San Agustin College of Law). Other partner institutes featured in the video were UCD Sutherland School of Law, Ireland, NOVA School of Law, Portugal and Deusto Law School, Universidad de Deusto, Spain.

Former Dean Fides C. Cordero-Tan opened the first plenary session of the Congress. She acknowledged the partners of the CALESA project and oriented the delegates regarding the remaining events (viz., breakout rooms for those participating on Zoom, fellowship, etc.). She then provided an overview of the plenary session.

First Plenary Session (Day 1)

For the first plenary session, the focus was on criminal law with two speakers and reactors. The first speaker was Professor José Luis Díez Ripollés, and the reactor was Professor Theodore O. Te.

Professor Díez Ripollés presented the “Recent Trends in Spanish Criminal Law.” He outlined the history of the Spanish penal code and the criminal law reforms after its enactment. He elaborated on the criminalization and decriminalization of various acts from 1995 to 2003 and 2010 to 2015. In addition, he noted the reform trends in liability, sanctions, and crimes. Finally, he gave an overview of the current state of criminal law, focusing on terrorism, road traffic crimes, euthanasia, juvenile justice, and minority discrimination.

For his reaction, Professor Te focused on the “antiquated modernization” of the Philippine Revised Penal Code. He expressed his appreciation of the progressive character of the Spanish Penal Code and its reforms in response to changes in their society. Professor Te pointed out that in contrast to Spanish laws, the Philippines has more specific “special laws” — making the RPC the exception rather than the norm. To make it easier to study and enforce, he suggested that the special laws should become amendments to the existing penal code. Finally, he remarked that the system of penalties in the Philippines needs to be more contextualized and responsive to a developing society.

The second speaker of the first plenary session was Professor José Becerra Munõz, and the reactor was Professor Filomin C. Gutierrez.

Professor Becerra Munõz discussed the law-making process and how it was a crucial aspect of criminal policy. He explained every stage of the law-making process by summarizing the questions to consider when drafting a criminal law (e.g., clarity of the wording, practicality of implementation, and policies promoted by a current administration). He shared the criminal laws passed in the Spanish Parliament from 2000 to 2020 and the breakdown of who proposed the legislation (i.e., the government and its actors). He remarked that it was essential to evaluate criminal legislation constantly. In conclusion, Professor Becerra Munõz gave recommendations to better the law-making process.

In her reaction, Professor Gutierrez provided a sociological standpoint on the complexities of criminal law. She commended Professor Becerra Munõz’s presentation because it showcased criminal law’s relationship with society and the power dynamics in creating the said laws. To elucidate her point, Professor Gutierrez examined the developments in the death penalty discussion and juvenile justice legislation. She provided studies with similar analysis frameworks and emphasized how understanding the law-making process was essential. In summary, Professor Gutierrez posed the principle of obedezco pero no cumplo (I obey but do not comply) to explain her sociological standpoint. Like in other colonized regimes, the principle reveals the flaws of a top-down crafting of the law.

Attorney Lee Edson P. Yarcia facilitated the Q&A portion of the plenary session, which produced valuable insights. Topics covered were the factors that influenced Spain to decriminalize certain acts, observations on the impact of penal reforms in Spanish society, and the relevance of social media in criminal law reform.

Second Plenary Session (Day 1)

In the second Plenary Session of the CALESA project, juris doctor students from different universities were given the floor to present their papers during the Rapid Fire Session.

Ysabel Layson from the University of San Agustin presented her paper “All Men are Equal before the Law, but what about Women?” which confronted the issue of inequality of treatment regarding men and women in the Revised Penal Code. She noted that women are punished more severely than men in cases of marital infidelity under Articles 333 and 334. The inequality is more pronounced in Article 247, where parents are criminally exempted from murdering their daughters, but is silent concerning the murder of their sons.

Ervin Caro, also from the University of San Agustin, discussed how freedom of expression in the advent of social media, while not censored, is diluted by those who operate under anonymity. In his paper titled “Where is the Lie? Democratic Decay through Disinformation,” he suggested that public policy should lean towards information that is being received by the public; hence there is a need for (1) literacy development, (2) intervention of the state through regulation, and (3) amending laws regarding disinformation.

Ashraf Baird of Ateneo de Zamboanga discussed the two theories on which the Revised Penal Code is based in his paper titled “What it Means to Punish in 2022.” He noted that there is a problem with how we view criminal justice and that it is a mission not just for one agency but for all stakeholders to streamline the process for speedy, inexpensive, and adequate legal development consistent with the Constitution.

Matthew Dayday and Amer Macadcasim, Jr. of the University of the Philippines proposed the inclusion of COVID-19 as a Fortuitous Event in their paper on “(Un)Fortuitous Event: The Covid-19 Pandemic as a Fortuitous Event”. They discussed the requisites of a fortuitous event and applied them to the COVID-19 pandemic, where they noted that it should not be used as a blanket defense since the mere existence of a pandemic does not entail non-fulfillment. Instead, the fortuitous event should refer to the severe restrictions on travel and transportation. They proposed that pandemic-related events be included in fortuitous event clauses and that the government should have interpretations of fortuitous event defenses.

After the Rapid Fire Session, Senator Leila De Lima, through her representative, Attorney. Catherine Sy discussed Modernizing Criminal Law by Updating the Approach to Criminal Behavior. Senator De Lima stated that society tends to view those who find themselves on the wrong side of the law as having lost their fundamental rights as human beings. She then discussed the steps that were taken in updating the Revised Penal Code, such as the creation of a Criminal Code Committee, which introduced several changes such as the simplification of categorization of crimes, the usage of numeral levels instead of Spanish or Latin terms, and the automatic inclusion of civil remedy in the criminal action. To fix the broken criminal justice system, she posited that treating the ills that cause crime is as vital as treating the harms that crimes cause.

The second plenary session ended with a video presentation about the CALESA project and a summation by Attorney Jacqueline Espenilla of the various topics and issues covered by the esteemed speakers at the Congress.

First Plenary Session (Day 2)

Professor Eugenio Olmedo Peralta, a Commercial Law Senior Lecturer at the University of Malaga, began the first plenary session of the CALESA Congress’ second day. He said his interests included the relation between economic reasoning and legal policies, particularly in competition law, intellectual property law, energy, and the use of new technologies. He talked about the European legal framework for competition in the digital market. Professor Peralta discussed the concept of “killer acquisition,” stating that while there are digital markets often strong at the beginning, there comes a time when companies become so strong that they acquire other businesses not because they are interested in “integrating their business model into theirs,” but because they primarily want to “kill the competition.”

Associate Professor Jose Jesus Disini Jr., Director of Technology Law and Policy Program of the UP College of Law, reacted to Professor Peralta’s discussion by stating that he had “no doubt that the principles in (the) European law will find their way to the Philippines.” He expounded that “the Data Privacy Act (of the Philippines) took inspiration from the GDPR” or the General Data Protection Regulation of Europe, in fact to the point that some of it has been translated into our law. He opined that “there has been an inability or unwillingness on the part of (local) regulators to regulate.” To prove his point, he stated that “the two biggest companies operating in the country earning revenues through advertising, are Google and Meta, neither of which has juridical presence here.” He noted that there has been little action on the part of the government to regulate them. The sense that “they are better off operating offshore” is not only true for them but also for local start-up companies. However, Professor Disini observed that we have a “very strong fintech (financial technology) start-up community in the country” and regulated cryptocurrency starting as early as 2017. He emphasized that, with the want of these fintech start-ups to comply with Philippine law, it is as if all that is needed is the willingness on the part of the government to regulate these industries.

Second Plenary Session (Day 2)

In the Rapid Fire Presentations, University of San Agustin College of Law student Justin Francis C. Bional discussed “The Philippine Party-list System and Representation of Marginalized Populations.” He posed questions such as: Would amending the party-list system Act be beneficial to ensure clearer definitions for marginalized groups? And how do we ensure the party-list system from being co-opted by traditional politics and political dynasties? From Ateneo de Zamboanga University College of Law, Nisha A. Imlan focused on the controversial issue of the hijab and its use in the public sphere. She stated that it is sanctioned, banned, and even criminalized in some countries. However, the hijab must be seen as an exercise of freedom of religion and expression. Luis Miguel L. Tirador, a University of San Agustin College of Law student, criticized the determination of a minimum wage in the Philippines. He posited that “we need something that is more just and fair to our laborers, and that, perhaps, the minimum wage should be raised.” Kaitlynne Therese A. Reyes, an Ateneo de Zamboanga University College of Law student, talked about environmental governance in the Philippines, particularly raising air quality standards in the country. She commented that “environmental defenders and advocates are calling on the National Government to truly implement the provisions of the Clean Air Act to raise air quality standards in the Philippines in compliance with the 2021 WHO Guidelines and in keeping up with international best practices.”

Assistant Professor Emerson Bañez, who teaches at the UP College of Law and Head of the UP Institute for the Administration of Justice, delivered a talk on civil law following a video tribute to the late Professor Ruben F. Balane. Professor Bañez shared an anecdote that “even as [Professor Balane’s] eyesight began to fail, we tried our best to accommodate him and pushed through with some of his projects,” stating that they went as far as reading out sections of his text to him so that he could simultaneously edit it.

Professor Bañez’s talk was about a particular paper of Professor Balane regarding the computational law aspect of reserva troncal. He stated that unlike the frameworks generally used by others, this paper dove into a single provision of the Philippine Civil Code. He then asked, “how do we make computers understand or at least process legal concepts predictably?” He explained that the data-driven approach involved feeding a particular algorithm with millions of data sets and we reward it for getting it right. He said the “feedback loop” would allow it to understand rich texts such as law.

On the other hand, Professor Bañez then argued that the semantic approach involved only the leading experts, such as human beings, “explicitly declaring the structure and the content of legal concepts, relationships, and the rules that bind them.” For Professor Bañez, the path that the late Professor Balane took “in breaking down the subject – each word, each line, each provision – can be a universe in itself. He believed that “this is the approach that we need to encourage so that we can model law computationally.”

Third Plenary Session (Day 2)

For the third plenary session of the CALESA Congress, Associate Professor Jose Manuel de Torres Perea of the University of Malaga’s Department of Civil Law, Ecclesiastic Law, and Roman Law talked about “the law on the reform of the Civil Law and procedural legislation to support persons with disabilities in the exercise of (their) capacity.” He remarked that “until now, in Spain we distinguish between juridical capacity and capacity to act.” However, he stated that the terminology was changed last year to adapt to the United Nations Convention. According to Professor de Torres, since last year, “we speak of personality when one is born, and when one is of legal age; we now speak of legal capacity.” He said that, from hereon, persons with disability were in charge of making their own decisions. This implies that “only when it is not possible to provide support by any other way, representation from now is absolutely exceptional in Spanish law.”

The last plenary speaker of the CALESA Congress, Professor Jose Antonio Castillo Parrilla of the University of Granada, talked about the “legal issues and challenges related to the massive news of artificial intelligence in the European Union.” He discussed the challenges faced by the Artificial Intelligence Act and the challenges on civil liability stemming from using artificial intelligence as a product.

Senior Lecturer of the UP College of Law Attorney Celeni Guinto delivered the summation for Day 2 of the CALESA Congress. She stated that for the first plenary session, we discussed regulating digital markets to foster competition and innovation. We learned about the current problem of undue market power gained by the gatekeepers of the digital markets. In the second plenary session, Guinto shared that promising Juris Doctor students presented topics of the Philippine party-list system, the rights involved in the wearing of the hijab, novel ways of computing the minimum wage, and environmental governance in the Philippines. Guinto articulated that “a fitting tribute was given to Professor Ruben F. Balane who, as we know, would have been glad to personally exchange ideas with us in this event.” However, she shared that his legacy lived on as Professor Emerson Banez discussed how Professor Balane’s old paper on reserva troncal was made modern by subjecting it to computational analysis, making it available to future generations of law students and practitioners. In the final plenary session, Guinto shared that we heard about the recent reforms in the capacity of disabled persons under the Spanish Civil Code.

^{[1] Edgardo Carlo Vistan, II and Solomon F. Lumba, “Remembering Our Dear Professor Balane“}