The rise of the ‘Frankenstatute’

The once gray gravel stone roads now burst red, yellow, brown, and orange. Autumn leaves have taken over the streets of Cambridge, Massachusetts.

A stroll about my neighborhood block would, however, reveal that hidden beneath fall’s palette are figures of gargoyles and ghosts, mummies and monsters, werewolves and witches. Warm “Hellos!” are now replaced with mischievous albeit well-meaning “Boos!” and the local tooth-yankers and jawsmiths brace themselves for the busy month ahead of them.

Ah, yes! With the season’s turn, Halloween has come a-knockin’ at our door. So here’s me knocking right back, turning the otherwise candied affair into a learning moment. Trick or treat, indeed.

Frankenstein’s monster—though oft mistakenly, though understandably, referred to as “Frankenstein” himself—is depicted as a composite of mankind in no Vitruvian sense. A creature, a fiend, a wretch furnished by “the dissecting room and the slaughterhouse,” so Dr. Victor Frankenstein described.

Alas! There is something about Mary Shelley’s masterpiece that reminds me of home.

Philippine law, in many ways, is Frankensteinian. It is a medley of provisions taken from jurisdictions far and wide, and transplanted onto our legal landscape.

Take for example the nonestablishment clause of Philippine constitutional order. After 333 years under Spanish rule, during which Catholicism was the state religion, the Philippines was sold through the 1898 Treaty of Paris to the US, which mandated the separation of church and state. Yet, while our constitutional traditions may have been reshaped by our new colonizer, our civilian and penal laws from the días of yore remained largely intact. It is precisely for this reason that, despite the constitutional secular mandate, the Supreme Court continues to cite the Family Code’s religious underpinnings on issues such as same-sex unions and divorce, and the Revised Penal Code—which is in gist an anglicized rendition of the Old Penal Code and Spain’s Código Penal—provides for the crime of “offending religious feelings.”

Like Frankenstein, in large part we are not to blame. We, too, had our versions of Dr. Victor. We are but victims of our “creators.” Of the “enlightened” westerner playing god in places they had no business in.

Yet, again, much like Frankenstein, we cannot wholly escape the grips of culpability. We, too, have our share of blame. A prime example is Republic Act No. 10667, establishing the Philippine Competition Act (PCA).

(Note: For those not as familiar—and I consider myself a part of that list—competition law, or otherwise known as “antitrust law,” is that field of law that protects consumers from abusive business practices, such as monopolies and price-fixing. And to be sure: no, the PCA has nothing to do with competitive sports.)

Passed only in 2015, the Philippines was among the last countries to adopt an antitrust regime. This meant, of course, that at the time of the PCA’s drafting, Philippine legislators had an abundance of model laws. For example, while under United States antitrust doctrine agreements that are not per se illegal are assessed under a second standard called the “rule of reason,” European Union competition law looks at whether the agreement is anticompetitive by object or, alternatively, in effect. Each approach is recognized as a functional equivalent of the other, and either would have done for the purposes of the PCA.

In so many words, the Philippines had options. Legislators had templates they could build upon, learn from, and, perhaps for the less diligent among them, copy and paste. And so they did.

Faced with two options, the PCA incorporates the US “illegality/reason” tests under Section 14(a) and the EU “object/effect” tests under Section 14(b). As to why both sets of tests were at all necessary is the million-peso political question.

Philippine legal order is full of “Frankenstatutes.” Of laws stitched together from severed parts. But to much regret, these aren’t the only monsters in our history. To borrow from the old adage, as we all know so well: Fact is scarier than fiction.

Now there’s a spooky thought for you. Happy Halloween!

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