Bernas Opinion Inquirer

Comelecs war with Buhay and Patay tarps
By Fr. Joaquin G. Bernas S. J.

Philippine Daily Inquirer
12:24 am | Monday, March 11th, 2013 45 586 514
Does the Commission on Elections have the power to order churches to take down posters hanging on church walls expressing their views about the Reproductive Health Law and senatorial preferences? The Bacolod diocese says no, and other dioceses are threatening to follow. I too would say no. Involved is the power of the Comelec to regulate elections and implement election laws. The power flows from the Comelecs constitutional duty to ensure fair and honest elec tions. But because election campaigns highly involve competing communications, election rules can heavily involve regulation of speech. The Constitution gives to speech the highest degree of protection. Jurisprudence distinguishes between content-neutral regulations and content-based regulation of speech. A contentneutral regulation is merely concerned with the incidents of the speech and merely controls the time, place and manner of the speech under well-defined standards. A content-based restraint is censorship and is concerned with the content of the speech. Clearly, the tarps involved contain both political speech and religious speech, both highly protected by the Constitution. The political aspect of the tarps involves electoral choices. It urges people to vote for senatorial candidates who opposed the RH Law and to vote against those who supported the RH Law. The religious aspect arises from the fact that the tarps express competing religious views about the morality of the reproductive health regulation. And since both aspects of the tarps are intended to influence the choice of the voters, they are a form of electoral campaigning. Clearly, the political and religious aspects of the tarps are beyond the jurisdiction of the Comelec. But it is within the power of the Comelec to impose regulations that are content-neutral, such as those touching on size, place and manner of publication. This is the sticky part of the controversy between the Comelec and the Diocese of Bacolod. The regulation of the size of posters and tarpaulins is probably the least controversial. The cost of posters and tarpaulins depends on their size, and the reach of their influence also depends on size. The Comelec has the duty to maintain equality of electoral opportunity. My understanding is that the diocese is willing to trim down the size of the tarps but, in the spirit of a cat-and-mouse game perhaps, alternatively to increase their number. Another problem about outdoor signs are the aesthetic and public safety aspects. As one de cision put it, While signs are a form of expression protected by the free-speech clause, they pose distinctive problems that are subject to the municipalities police powers. Unlike oral speech, signs take up space and may obstruct views, distract motoris ts, displace alternative uses for land, and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise. However, this has not come up in the Bacolod controversy at all. A more problematic aspect of what the Comelec wants to do with the Bacolod tarps is their location. They are hung outside the church building within private property. Comelec regulations allow the posting of signs on private property provided that the property owner consents. The church has not only consented but is in fact the sponsor of the tarps. The current controversy is perhaps the first of its kind in Philippine jurisprudence. It may be for this reason that the Supreme Court is handling it gingerly. This, however, is not a new problem in United States jurisprudence to which we usually have recourse when dealing with local laws that are of US origin. The case I remember best is one involving a sign posted by a property owner on her front lawn proclaiming, Say No to War in the Persian Gulf, Call Congress Now. The sign violated a city ordinance. When prosecuted, she challenged the constitutionality of the ordinance. She won. The Court ruled, among others, that the city had totally foreclosed that medium (of communication) to political, religious or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns, during which they are displayed to signal the residents support for particular candidates, parties or causes. They may not afford the same opportunities for conveying complex ideas as do other media, but residential signs have long been an important and distinct medium of expression. Because of this, I would defend the legal position of the diocese. However, let me conclude by saying that while I would defend the action of the diocese on constitutional grounds, I oppose it for pastoral reasons. The content of the tarps are both politically and religiously divisive. Catholics are divided over whom to vote for; they are also divided over the morality of the RH Law. To brand as Patay those who in good faith believe in the morality of the RH Law following the teaching of some moral theologians is not an effective way of fostering church unity. It can drive away people from the church.
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Sabah and US
9:52 pm | Sunday, February 24th, 2013 9 305 198
Sabah has once again become front-page material because of the move of the heirs of the Sultan of Sulu to enforce their claim to a portion of the territory. It may be good to understand what the heirs of the Sultan of Sulu are claiming. As I see it, they are not claiming political sovereignty over the territory. Sulu, not being a sovereign state itself, cannot be claiming sovereign powers over Sabah. What is being claimed is proprietary right. They claim to be the owners and lessors of the property with Malaysia as lessee-successor to a British company. The Philippine government itself sees the current problem merely as proprietary and not involving sovereignty. But is there a sovereignty problem? There is, but it has been dormant for some time now and there is no indication that the current administration wishes to resuscitate it. After all, we are concerned about preserving peace among the Asean nations. Moreover, we have accepted the friendly cooperation of Malaysia in solving the Bangsamoro problem. But a look at the sovereignty issue involved in the Sabah problem may be useful. Part of the problem is permanently recognized by the Constitution. It is not essential that a constitution should have a delimitation of a states national territory. After all a constitution is domestic law and it is not binding on other nations. But our Constitution has an article on national territory for a very special reason. And the Sabah issue is now also there. In 1935, there was a compelling reason for a careful delineation of Philippine territory in the Constitution. The Constitutional Convention then was aware that it was formulating a Constitution for a government that would not yet be politically independent of the United States; and there was, at that time, the fear that the United States would allow the dismemberment of the nation. The desire of the convention was to tie the hands of the United States and prevent America from slicing off any portion of Philippine territory. Tying American hands was possible because the TydingsMcDuffie Law, which authorized the drafting of the Constitution, required that the work of the Convention be submitted to the United States government for its acceptance. Thus, acceptance of the Constitution by the United States would have been acceptance of the territorial claims of the Philippines. As Delegate Vicente SingsonEncarnacion put it: Debemos poner aqui lo que es necessario para nosotros que nos consideramos como una cosa necessaria, a fin de que despues no se conviertan algunas de nuestras islas en yoyo o sea, que Estados Unidos retire lo que hoy de buena gana nos concede. In other words, there was a recognition that a constitution is not an international law but only a municipal law and, as such, binding only on the nation promulgating it. No provision in a constitution binds any other nation. But for reasons peculiar to the Philippines then, the Constitutional Convention also wanted to convert the 1935 Constitution into an international agreement binding on the United States by obtaining that nations acceptance of the provision on national territory. And that is what happened. When the 1971 Constitutional Convention was formulating the constitution which was to become the 1973 Constitution, the delegates debated on whether to have an article on national territory at all. You can look at the Feb. 14 and Feb. 15, 1972, records for some entertainment. Some of the speeches are dead serious, others comic, and most of them utterly forgettable. At any rate the convention decided to adopt an article on national territory. After fumigating the 1935 version of overt colonial odor, the convention added to the 1935 claim two international challenges: one made the catch-all claim of all other territories belonging to the Philippines by historic right or legal title, and the other asserted Philippine acceptance of the archipelagic principle. The adoption of the archipelagic principle has not created waves; but the catch -all claim of territories belonging to the Philippines by historic right or legal title irritated Malaysia which saw the phrase as the assertion of Philippine claim over Sabah. As indeed it was. And it became an obstacle to smooth relations with this Asean neighbor. Once again, in the 1987 Constitutional Commission, there was debate on whether to drop the entire article on national territory. In the end, the decision was to keep it. Indeed, it would have been awkward to drop it if, after carefully enshrining it in earlier constitutions, it would be abandoned now. The debate then shifted to the claim over Sabah. The Sabah debate ended with a softened statement staking its claim in the following language: all other territories over which the Philippines has sovereignty or jurisdiction. The original phrase had said exercises sovereignty or jurisdiction. Exercises yielded to has on the argument that a state could have jurisdiction over an area where another state is exercising jurisdictionwhich Malaysia was doing over Sabah. The language fitted the dormant but still not abandoned claim to Sabah.
It is clear that even with the recent movements in Sabah, the current administration is not inclined to awaken the dormant claim. I agree. Awakening it would serve no useful purpose. We are having enough problem dealing with Chinas territorial claims.
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The antidynasty campaign

11:52 pm | Sunday, February 17th, 2013 5 172 116
People get the government they deserve. What people deserve is expressed through their preferences in an election. We have been having elections since 1987 when the antidynasty provision in the Constitution first appeared, and the people have chosen, administration after administration, their preferences, dynasties and all. Indeed, there is an antidynasty provision in the Constitution. It was first proposed in the Committee on Local Governments but was rejected there. It was revived during the debates on the Declaration of Principles and State Policies. In those debates, the choice was between passing on the responsibility for laying down an antidynasty provision to Congress and leaving the choice to the people in an election. The Constitutional Commission passed on the responsibility to Congress. But why did not the Constitutional Commission itself formulate a meaningful antidynasty law? I can recall two reasons. First, it was thought that leaving the choice of government officials to the voters rather than limiting the choice of voters would be the more democratic option. Second, nobody proposed what an antidynasty provision with teeth would look like. Hence, the anti-dynasty provision was buried in the Article of the Constitution whose provisions are generally non-self-executing, thereby leaving it to Congress to do the dirty job. The State shall prohibit political dynasties as may be provided by law. The power to do something about political dynasties has been in the hands of a series of Congresses since 1987. Nothing significant on the subject has taken place. Why is this so? Aside from selfish motives that might indeed exist, what has prevailed to this day is the reasoning that leaving the choice of government officials to the voters rather than limiting the choice of voters would be the more democratic option. If Congress were to provide for an antidynasty law, what would it look like? One draft which has been languishing in Congress reads something like this: Political Dynasty shall exist when a person who is the spouse of an incumbent elective official or relative within the second civil degree of consanguinity or affinity of an incumbent elective official holds or runs for an elective office simultaneously with the incumbent elective official within the same province or occupies th e same office immediately after the term of office of the incumbent elective official. It shall also be deemed to exist where two (2) or more persons who are spouses or are related within the second civil degree of consanguinity or affinity run simultaneously for elective public office within the same province, even if neithe r is so related to an incumbent elective official. Unfortunately the people who would be asked to approve a bill like this would themselves come under the definition of dynasts. Look at the list of candidates running for office now. If Congress, either as a legislative body or as a constituent body, cannot propose a meaningful antidynasty amendment, can a Constitutional Convention do it? There is no clamor for a Constitutional Convention for this or for anything, for that matter. Realizing perhaps that the desired amendment will not come from Congress or even from a Constitutional Convention, the antidynasty proponents now are asking for amendment directly passed by the people through initiative and referendum. What are the chances of success? First of all, a definition of what a political dynasty means has to be formulated. Who will do it? The Constitution does not say who will do that for the purpose of the initiative. The conclusion is that anybody can do it. Can the campaigners against political dynasty succeed in agreeing on one formula to be presented to the people? Not very likely. Let us suppose, however, that the usually independent great minds can agree on a formula, what else is needed.?First, lest we forget, Congress must first pass a law authorizing constitutional amendment by initiative and referendum. In 1997 the Supreme Court ruled that the current Initiative and Referendum Law does not authorize
constitutional amendments yet. A contrary Court majority opinion in 2006 was an obiter dictum, that is, not a binding rule. Second, if and when constitutional amendment by initiative and referendum is finally passed, the approved common formula must be submitted to the people in a referendum. What percentage of the votes cast is needed to bring the matter to a referendum? Amendments to this Constitution may likewise be directly proposed by the people through initi ative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. Finally, if there is a successful call for a referendum, what percentage of the voting population is needed to ratify the proposal? The Constitution says a majority of the votes cast in a plebiscite. No amendment attempt has succeeded yet in this system. Hence, to the antidynasty campaigners I say, naught have I for your comfort, yea, naught for your desire, save that the sky grows darker yet and the sea rises higher. That is, unless voter education succeeds first.
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Arroyos fight for release on bail: Round 10

12:58 am | Monday, February 11th, 2013 4 344 292
In the middle of last week one of the lawyers working for the release on bail of former President Gloria MacapagalArroyo came to me asking if there was anything I could do to help. I said that, much as I would like to, at least for humanitarian considerations, I was afraid that anything I said would just be counterproductive for the reason that I am considered kapamilya. As many know, one of my nephews is now married to Luli Arroyo. For this reason, positions I took in the past were sometimes brushed aside brainlessly even by some whom I normally respect simply because a Bernas has become a member of the Arroyo family. This is insanity, of course, but it is part of life. After my visitor left I thought about the purpose of her visit and I concluded that there should be no harm if I discussed in general terms what the right to bail is and who may be constitutionally denied the right to bail. My intention would be to reach the minds of those who are interested in forming their own judgment. The raft of anti-GMA cases, of course, is related to the locally and internationally touted campaign for daang matuwid. (My visitor last week talked in general terms to me about the plunder case against GMA arising from official actions connected with the Philippine Charity Sweepstakes Office; other cases had already been dismissed by the Sandiganbayan.) Within this broad issue I shall limit myself to the legalities involved in the right to bail specifically in a plunder case. The right to bail, as every first-year law student will know, is a mode short of detention which insures that an accused will make himself or herself available when needed in a court proceeding. The right to bail is an important support to the constitutional right to be presumed innocent because it enables the person released to make proper preparations for defense. It is very clear in the Constitution that bail can be denied only when two narrow grounds are verified by a court in a hearing where the parties are heard. First, the crime charged must be punishable by death or reclusion perpetua. (Jurisprudence has interpreted the provision as including not just reclusion perpetua but also life imprisonment, a penalty strictly speaking different from reclusion perpetua.) Second, the evidence of guilt must be strong. The burden of proof is laid on the prosecution. Unless both of these requirements are satisfied, release on bail is a matter of right no matter how serious the accusation might sound. The penalty required by law can easily be verified simply by looking into what the Penal Code says or what the special law which imposes life imprisonment says. The trickier part is determining whether the evidence of guilt is strong. A judicial hearing is required for this. What does strong evidence of guilt mean? The Supreme Court has defined it as proof evident or evident proof which means clear, strong evidence which leads a well-guarded dispassionate judgment to the conclusion that the offense has been committed as charged, that accused is the guilty agent, and that he will probably be punished capitally if the law is administered. It is also referred to as Presumption great which exists when the circumstances
testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excludes all reasonable probability of any other conclusion. In the case of the crime of plunder, for which GMA is accused, what must be proved by strong evidence for the court to deny bail? This question was extensively discussed by the Supreme Court in the plunder case against former President Joseph Estrada. Plunder is a crime which can be committed only by a public officer. It is committed when a public officer amasses ill-gotten wealth amounting to at least P50 million (not a mind-boggling amount by current reckoning) through a combination or series of illegal acts. What series or combination of acts might be proved? The Plunder Law enumerates six clusters of criminal acts. On the basis of this list, the information against GMA makes out three. In general, they are: illegal diversion of funds, raiding the public treasury and unjust enrichment by taking advantage of official position. To deny GMA bail, the prosecution must prove any one of these charges by evidence strong or presumption great. And the decision will be made not just by any court but by the Sandiganbayan. We await the outcome of Round 10. GMA has won earlier rounds. I understand from my visitor last week that GMA is now fighting this round at 88 pounds.
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Of Padre Damaso and other things

11:27 pm | Sunday, February 3rd, 2013 459 2958 2451
The Celdran Case. Article 133 of the Revised Penal Code punishes anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful. There are two elements in the offense: (1) That the act or acts complained of are performed in a place devoted to religious worship or during the celebration of any religious ceremony; and (2) that the act or acts must be notoriously offensive to the feelings of believers. When you strip the provision of its religious element, what you have is something similar to the offenses of violation of domicile (Article 128) or interruption of a meeting (Article 131). Both of these two offenses can also result in offended feelings, but feelings are not factored into these offenses. However, 128 and 131 can be violated only by public officers. What has attracted attention to Article 133 is the religious element in the offense. Essentially, what is punished in Article 133 is speech, whether oral or symbolic, which offends the feelings of others because of its religious content or surrounding circumstance. Hence, an important question that must be asked is whether Article 133 violates freedom of expression and free exercise or nonestablishment of religion, especially since the crime is listed among crimes against the fundamental law. Freedom of speech is violated when speech is restrained or punished even if the speech does not present a clear and present danger of a substantive evil which the state has the right to prevent. Free exercise of religion is violated when a person is prevented from or punished for externalizing his religious belief or is forced to do something contrary to his religious belief. Nonestablishment of religion is violated when the state shows preference for one religion over others or prefers religion to no religion. Carlos Celdran is being ordered punished for offending the feelings of others by speaking, orally or symbolically, against religious values dearly held by others. In other words, he is being punished for religious speech. I thought that this kind of offense already disappeared after the events of 1902. What about his disturbance of a religious gathering? If Celdran were a public officer, which he is not, you might hold him under Article 131 as a disturber of a peaceful meeting, an offense that is religion-free. Perhaps it is enough that Celdran is already apologetic. Incidentally, the penal codes of, at least, California and New York, have provisions similar to our Article 133. But not everything American is worth imitating! Finally, Article 133 also raises an intriguing question: When a priest or bishop castigates or consigns to the netherworld those who oppose the Reproductive Health Law in a sermon before a captive audience of churchgoers, should he be penalized by the State or canonically censured for offending religious feelings? After all, defenders of the RH Law also have feelings! What is good for the gander should also be good for the goose.
Comelec in eye of brewing storm. Elections are important. For that reason, the Comelec is given by the Constitution special powers during an election period (which this year started last Jan. 13 and ends on June 12). It says: The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information An important campaign tool used by politicians is speech in its various forms. Hence, during this period regulatory instruments used by the Comelec can come into conflict with the important and highly protected right of speech. However, according to the Supreme Court, the technical effect of the constitutional provision is that, when a Comelec regulation during the election period comes into conflict with the right of free speech, there is no presumption of invalidity. Until candidates or parties succeed in declaring the regulation invalid, it continues to be in effect. A few conflicts on this issue have gone to court and the Comelec has not won all of them. With the increasing heat of the election season, conflicts are again bound to arise. The first hot one that has arisen is the recent requirement of prior approval by the Comelec for a candidate to guest on any bona fide newscast, bona fide news interview, bona fide news documentary. The Comelec regulation elaborates thus: To determine whether the appearance or guesting in a program is bona fide, the broadcast stations or entities must show that: (1) prior approval of the Commission was secured; and (2) candidates and parties were afforded equal opportunities to promote their candidacy. On its face, the need for prior approval is a form of prior restraint, and it is. Normally it would be presumed to be invalid. But, as stated earlier, it stays in effect until a court declares it invalid because, under jurisprudence on the special power of the Comelec during the election period, it is presumed to be valid. More conflicts may be coming before the end of the election period. If you are interested in the possible sources of conflict, look up Resolution No. 9616 on the Comelec website.
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Unfinished debate over the RH law

12:37 am | Monday, January 14th, 2013 127 1838 1554
A recent article on the Kennedy legacy published in The Tablet, a British Catholic weekly, recalls a speech of John F. Kennedy given before a hostile crowd of Protestant ministers. Kennedy said: I believe in an America where the separation of Church and State is absolute; where no Catholic prelate would tell the President should he be Catholichow to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference, and where no man is denied public office merely because his religion differs from the president who might appoint him, or the people who might elect him. The speech, given in the heat of a presidential campaign, was designed to quell fears of a Catholic president. To a large extent it served its purpose as shown by the election of Kennedy as president. In 2012, another Catholic but Republican candidate, Rick Santorum, would contradict the Democrat Kennedy saying, I dont believe in an America where the separation of Church and State is absolute. The idea that the Church can have no influence or no involvement in the operation of the State is absolutely antithetical to the objectives and vision of our country To say that people of faith have no role in the public square? You bet that makes you throw up. Political campaign speeches tend to be absolutist in tone and frequently have to be subjected to distinctions in order to arrive at the full truth. Kennedys statement, for instance, about the grant of public funds to religious institutions have been nuanced by recent jurisprudence. Government financial aid may now be given to religious institutions provided that the grant (1) is for a secular legislative purpose, (2) must have a primary effect that neither advances nor inhibits religion, and (3) must not require excessive government entanglement with the recipient institution. A number of other decisions have refined this teaching. As to religious influence on the life of society, we are too aware of the excesses of churchmen, or of efforts to prohibit the reading of the novels of Rizal, or now of efforts of some preachers to exclude from the Church those who favor the RH law or to punish legislators who voted for the RH bill. The Catholic teaching on this subject may already be found in the Compendium on the Social Teaching of the Catholic Church, which says, Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups and Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.
During the earlier debates on the RH bill I myself had argued against some provisions of the bill that I thought should be deleted before its approval or should be challenged constitutionally if included in the partial version of the bill. Because of this, I and a number of colleagues offered ways of improving the bill and we published what we called talking points on the bill. I have studied the final version, the approved law, and I notice that the points that I would have considered constitutionally objectionable have been removed or nuanced. Moreover, the prohibition of abortion has been made more specific. But the debate on the approved law continues. I am rather disturbed by preachers who use their opposition to the law as a way of defeating electoral candidates who favor or have favored the law. Tactics are being used, which can have the effect of driving Catholics away from the Catholic Church or at least from Sunday Masses where the preachers subject the audience to prolonged attacks on the RH law and to threats of damnation against those who favor the law. As to the constitutional arguments being used against the law, which are not impressive. The arguments I have seen can be reduced to one sentence: The law is unconstitutional because it does not hew closely to the teaching of the Catholic Church on contraception. This is a throwback to pre-1908 political society in the Philippines. It forgets what the Compendium teaches: Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority. Worse yet, it ignores both the nonestablishment clause and the free exercise clause of the Constitution. P.S. on an unrelated subject. The Supreme Court is revising the Rules of Civil Procedure and will hold a National Conference on June 28-30, 2013. The deans of our countrys leading law schools and experts in Civil Procedure are already preparing drafts for the new rules. The Office of Justice Roberto A. Abad is open to receiving suggestions from all lawyers (newcivpro@gmail.com).
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Clerics and the political process

8:35 pm | Sunday, December 23rd, 2012 39 243 148
The debates on the reproductive health bill have died down, and now there is toe-in-the-water talk about divorce. Some friends have asked me what role clerics should have in matters involving controversial legislation. Let me be more general, however, and ask instead about clerical involvement in public affairs. One person who expressed in very strong language his opposition to religious involvement in public affairs was Barry Goldwater. He said: The great decisions of government cannot be dictated by the concerns of religious factions We have succeeded for 205 years in keeping the affairs of the state from the uncompromising idealism of religious groups, and we mustnt stop now! Goldwater could not have been more inaccurate historically. Whether viewed against American history or Philippine history, the statement is false. Churches have influenced American politics from the days of Jefferson down to the prophetic preaching of Martin Luther King and the pastoral letters of the American bishops. Likewise in the Philippines, religion has been involved in politics from the days of Fathers Gomez, Burgos and Zamora down to the pastoral letters on social justice and on the conduct of elections. I do not see this involvement coming to an end. Depending on circumstances, it can even intensify, as it did in the RH-bill debates. But it is legitimate to ask how clerical activism fits into the Philippine political culture. A question often asked is whether a cleric may run for public office. There is no constitutional obstacle to that. There was a Supreme Court decision under the 1935 Constitution which said that clerics, much like firemen and policemen, should not run for public office. But the decision was actually a minority decision upholding a statutory provision at the time when the Constitution required a two-thirds vote of the Supreme Court to declare a law unconstitutional. As to the obstacle arising from Canon Law prescription, it is not insurmountable. What remains, therefore, is a question of prudence or propriety. This writers view on this is that in principle, a cleric must choose between being fully a Church minister or a public official. Combining the two can be both religiously and politically unhealthy. Another important question touches on the substance of the preaching of clergy and religious. Preaching does not simply refer to sermons and homilies in church. Included are public or semipublic pronouncements such as blogs or columns.
Certainly, no one will deny the clergy the right to preach about morality. That is their task and they would be remiss in their duties if they habitually avoid moral issues. This is all part of ordinary religious preaching. It is a different matter, however, when out of general moral teachings, specific public positions are advocated such as impeachment, Charter change, the banning of jueteng or even the RH bill. Of course, there are specific conclusions that flow naturally from some general positions. But specific practical conclusions do not always come out naturally. The fact that an act is clearly sinful does not lead to the easy conclusion that therefore it should be penalized. If it were, our prisons would be more crowded than they already are. Why is it that people sometimes do not want their religious leaders to tell them what specific actions they should take or what political conclusions they should make? It is all part and parcel of being a citizen of a democracy. I have my own mind. Dont insult me. Let me draw my own conclusion! This is a perfectly legitimate attitude. To avoid alienating people who have such an attitude, a cleric must carefully and respectfully present his conclusions. If the practical conclusions are presented as the product of ones own study and are presented for people to agree or disagree with, then no one should feel insulted or offended. Much less should a cleric threaten hellfire against those who disagree. Another objection to specific pronouncements by clerics is that their competence and their access to needed facts for drawing conclusions are limited. Rarely is their expertise related to economics, law, sociology, or politics, etc. Specific conclusions about the morality of economic or political decisions can depend very much on the dynamics and nuances of these specialized fields. If the cleric has competence in these fields, then his conclusion can be more persuasive. However, it is also good to remember that even the people whose task it is to make important decisions that impact on the lives of peoplesuch as legislatorsdo not always have the needed expertise on what they may be talking about. Some easily talk through their hat. But this is no reason for a cleric to be reckless. While a cleric, however, should not be reckless in his statements, neither should he be inordinately pusillanimous. There are political and economic decisions that have great moral significance. These should be faced, with prudence, yes, but not with cowardly avoidance of conflict. Risks are part of the apostolic mission. Clerics do make mistakes, out of carelessness, perhaps, or through excess of zeal, or even for more foolish reasons. But in my own estimate, mistakes and all, the courageous stand of clerics and churches can do much harm. The courage of the churches in the Philippines has made a significant contribution to improving economic and political life.
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The Casiguran controversy

10:46 pm | Sunday, December 16th, 2012 7 321 215
In my column last week I reported how the poor folks of Casiguran who marched to Manila to seek the help of President Aquino saw the Aurora Pacific Economic Zone and Freeport Authority (Apeco) project in their area. The following day I received a call from Reli German who wanted me to listen to the side of Apeco. I asked him to write down how Apeco saw things and to send me their thoughts. Now let me summarize the position of Apeco as contained in the letter of lawyer Malcom I. Sarmiento, president and CEO of Apeco, as forwarded to me by German. The 120 marchers do not represent the 3,000 households affected by the Apeco development. Those in the group who claim that their land was forcibly taken by Apeco are in fact informal settlers in a school reservation owned by Aurora State College of Technology (Ascot). The 105-hectare property in contention was originally designated as a school reservation by virtue of Proclamation No. 723 issued by American Governor-General Frank Murphy on Aug. 21, 1934. The Aurora National Fisheries School was created for this purpose. Republic Act No. 7664, which created Ascot, later mandated the integration of this fisheries school and all its resources, including the school reservation, into Ascot. This cannot be used for anything other than the original purpose. Despite this, Apeco has included these informal settlers among its housing beneficiaries under a program undertaken in partnership with the National Housing Authority (NHA). True, there were 28 families displaced by the construction of the airstrip, but this is a project of the Civil Aviation Authority of the Philippines (CAAP), which has extended to them financial assistance, and they have been included among the Apeco-NHA housing beneficiaries.
On the issue of ancestral domain, Apeco has never conducted infrastructure development activities in any of the Dumagat settlements within its area of coverage. We have already sought the help of the National Commission on Indigenous Peoples (NCIP) to facilitate Free and Prior Informed Consent (FPIC). Apeco recognizes the existence of ancestral domain, and supports the indigenous peoples in acquiring their Certificate of Ancestral Domain Title (CADT). Apeco carries with it the mandate to acquire lands on the condition that it provides just compensation in accordance with law. Apeco has been acquiring and paying for lands almost twice the assessed value. Apeco has never resorted to the right of eminent domain or expropriation to acquire lands. Neither has Apeco bought land nor coerced any one to sell their land at an unreasonably low price. Apeco has no intention to buy lands in the San Ildefonso Peninsula. We give due respect to the rights of existing ISF (integrated social forestry) beneficiaries in the area. That Apeco has cut 10 hectares of centuries-old mangroves to give way to its port is false and misleading. The port referred to is a Ro-Ro (roll-on-roll-off) port that is not within the boundaries of Apeco. This port was built decades ago, and rehabilitated by the Philippine Ports Authority as part of the previous administrations nautical highway program. Apeco has absolutely nothing to do with this port. Regarding the supposed lack of consultation on the creation of Apeco, we continue to conduct consultations to raise awareness about our development programs among the residents of Casiguran, as well as to seek their proposals on how Apeco can more effectively help them. These consultations were followed by several barangay assemblies. Finally, accusations of human rights violations against Apeco are mere fabrications. Apeco is for developmentfor the people of Aurora, supported by the people of Aurora. We appeal to those with vested interests to stop spreading lies that only serve to jeopardize the future of Auroras people. Obviously these are issues of fact about which, from the quiet of my room in the Ateneo Jesuit Residence, I am in no position to offer judgment. Meanwhile, last week the Casiguran marchers had a long dialogue with the President. The outcome of that dialogue, I am told, disappointed the marchers. But as one consequence of that dialogue, the President ordered an investigation to be made by government officials. I am sure that the investigators will also listen to the Apeco people, if they have not done so yet. We await the outcome of that investigation hopefully within the week. My sensecorrect me if I am wrongis that the result of the investigation will not satisfy the marchers and their supporters. The cultural roots of the problem are too deep. Hence, whatever the Presidents decision might be, that will not be the end of the matter. There still is the judicial process which can take care of both legal and factual issues. We should be hearing more about this. My stand on the RH bill I know that in its unamended form, the reproductive health bill was not perfect and I myself, mainly on constitutional and moral grounds, have offered criticism and suggestions. While the bill has undergone extensive amendment, it remains a work in progresseven as the Constitution is a work in progress. But there are many valuable points in the bill that can serve the welfare of the nation and, especially, poor women who cannot afford the cost of medical service. Let us not burn the house to save a pig. The surviving pig can be the subject of judicial challenge.
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Once more, the RH bill

2:51 am | Monday, December 3rd, 2012 57 1346 1010
Last Saturday I received an anonymous message through the Internet that said: Anti -RH bishops do not speak for the entire clergy. We, the silent Catholic clergy, support the RH [bill]. Poverty dehumanizes. To address it brings us closer to God. Pass the RH [bill]. That makes my Internet pal a candidate for exclusion from the Church and consignment to eternal fire by Archbishop Ramon Arguelles. Yet the message expresses a sentiment close to the heart of Luis Antonio Cardinal Tagle himself who, in an interview by the Tablet, said, The Church cannot and must not pretend to have easy answers to the dilemmas facing men and women today. Instead, it must be an attentive and listening Church only that way will people believe that God listens to them too. He went on: The Church must be a humble Church, modeling herself more on Jesus and being less preoccupied by her power, prestige and position in society. Still more: I realize that the sufferings of people and the difficult questions they ask are an invitation to be, first, in solidarity with them, not to pretend we have all the solutions.
[People] can resonate and see the concrete face of God in a Church that can be silent with them, can be as confused as they are, also telling them we share your situation of searching. Jesus Christ Himself would not make a facile Arguellian condemnation of my Internet pal. The Reproductive Health bill has traveled a long road and I myself have written about it and have likewise been consigned by some to the lower regions. I know that in its unamended form the bill is not perfect, and I myself, mainly on constitutional and moral grounds, have offered criticism and suggestions. I am not about to give up in my effort to help Congress come up with a bill acceptable to all. There is now, it seems to me, an openness among legislators that is encouraging. A couple of weeks ago the House of Representatives accepted a substitute bill containing very significant amendments. It is hoped that the bill will be subjected to the amendment process and approved before the House breaks for Christmas. The amendatory bill first came out in April. No action was taken on it by the House. The following were the salient provisions: Section 13. Role of barangay health workers. Instead of saying that they should give priority to family planning work, simply say they should help implement this Act. This should obviate the complaints that family planning is being given undue emphasis. Section 15. Funding mobile health services. Charge the funding to the national government instead of to the Priority Development Fund (PDAF) of congressmen while at the same time allowing individual lawmakers to use their PDAF. Section 16. Mandatory age appropriate sex education. Give parents the option not to allow their children to attend mandatory sex education while at the same time giving assistance to parents who want assistance in this matter. This is in conformity with the primary right of parents. Section 20. Ideal family size. Delete the entire provision. This will preclude further misinformation about the meaning of this provision. Section 21. Employers responsibility. Delete this because it is simply a restatement of Article 134 of the Labor Code. Deleting it will preclude further debate. Section 28(e) Prohibited acts. Delete the provision that penalizes any person who maliciously engages in disinformation about the intent and provisions of this Act. There already are penal limits to freedom of expression. In addition to the above amendments already proposed by the authors of the consolidated bill there are others that are worth considering. Let me mention a few: On age-appropriate reproductive health and sexuality education: 1.) Private schools can opt to provide an alternative sexuality education curriculum based on the schools religious beliefs or values. The government will monitor that there is a curriculum being implemented, whether the standard one or the alternative one. This is now in the substitute bill. 2.) If a public school cannot provide enough adequately trained teachers or there are public school teachers who cannot teach the governments curriculum because of religion -based objections, the proper government agency would send trained instructors to teach the sexuality education classes. 3.) An additional topic for the curriculum is the role of religious freedom and conscience in choosing the means of planning families. On prohibited acts: Any health care service provider, whether public or private, who shall require a person to undergo a sterilization as a condition for providing basic health care or emergency care or health care assistance to indigents shall be penalized. What were first presented last April were mere proposals. They still are to fay. But the acceptance of the substitute bill for plenary debate gives hope that there will be an RH law before Christmas. Rep. Edcel Lagman, the original author of the bill, might therefore receive his Christmas gift. It will not be a perfect law. But every law we have, even the Constitution, is a work in progress. There are many valuable points in the bill that can serve the welfare of the nation and especially of poor women who cannot afford the cost of medical service. There are specific provisions that give substance to these good points. They should be saved.
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Once more the party-list system

12:24 am | Monday, November 12th, 2012 0 123 6
In an earlier column, I wrote that I would not be unhappy if the party-list system were to be abolished. But to achieve abolition, a constitutional amendment is needed. Considering, however, that we have a president who is averse to constitutional amendments and who controls Congress which alone can set an amendment in motion, we must live
with the party-list system warts and all. Let me therefore just say something about matters that are being currently debated and are giving the Commission on Elections sleepless nights. To understand the debate about the party-list organizations themselves and the qualification of their representatives, we should go back to the text of the Constitution. It says: The party -list representatives shall constitute twenty per centum of the total membership of the House of Representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. There are two main questions arising from this text. The first question is whether the membership of the organization must always consist of the underprivileged labor, peasant, urban poor, indigenous cultural communities, women, youth and such other sectors as may be provided by law, except the religious sector; or is the required underprivileged membership only for the first three consecutive terms after the ratification of the Constitution? Since the start of the implementation of the system, the understanding has always been that the classes enumerated under the Constitution are examples of the classes which may initiate a party-list organization. They are usually referred to as underprivileged or underrepresented. The constitutional enumeration is not exclusive. It can include other sectors as may be provided by law but, of course, under the principle of euisdem generis. Thus Republic Act 7941 (Party-List System Act) has expanded the list to include fisherfolk, elderly, handicapped, veterans, overseas workers, and professionals to make a total of 12 sectors. But was it the intention of the Constitutional Commission that, for these sectors to continue as party-list organizations, the members must remain underprivileged and underrepresented? I do not see it that way. The reason that these underprivileged sectors were given three consecutive terms without competition was to help them build up their strength. And strength can come from the improvement of the lot of the members. This, after all, was the social justice aim of the party-list systemto uplift the life of the masses. The law, however, does not say what is to be done with the party-list organizations that have gained the strength of regular political parties and have grown capable of participating in the rough and tumble of regular party politics. Can the Comelec disqualify them now? It seems to me that legislation is needed to answer this question. The next important question is whether those who are to represent the party-list organization must belong to one or other of the classes of underprivileged citizens, that is, labor, peasant, urban poor, indigenous cultural communities, women, youth, fisherfolk, elderly, handicapped, veterans, overseas workers and professionals. The Constitution does not prescribe a social class requirement for the party-list representative. For its part RA 7941 simply says that the party-list representative must be a bona fide member of the party he seeks to represent for at least ninety (90) days preceding election day. The distinction that must be made is between belonging to a class and belonging to an organization. A party-list representative does not have to belong to one of the 12 underprivileged classes. But he must be a bona fide member of an organization championing the cause of the underprivileged. In other words, although he socially might not be one of them, his heart should belong to them. That, for instance, is what Mikey Arroyo claimed where his heart rested. Take another case, the Ako Bicol. The representatives of Ako Bicol do not belong to any one of the underprivileged classes. Although they are professionals, the professionals referred to by law are health workers, artists, cultural workers and the like but not high-priced medical or legal practitioners. From what I have seen in the papers, the representatives of Ako Bicol are not any of these! They seem to be bona fide members of the organization they represent. The Comelec did not question their bona fide membership; but the Comelec questioned the legitimacy of Ako Bicol itself. Ako Bicol was considered qualified three years ago. Was Ako Bicol disqualified now because the status of its members had improved or because the Comelec erred three years ago? If it was an error three years ago, does the disqualification retroact to three years ago? If it does, what would be the status of the current representatives? Jurisprudence places the task of determining the qualification of party-list organizations in the hands of the independent Comelec. Did the Comelec commit grave abuse of discretion by disqualifying Ako Bicol? P.S.: The best explanation of Undas I got was as an acronym for Unos dias de los santos y de las almas.
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Political dynasties
12:35 am | Monday, October 29th, 2012 2 466 41
There is a rising clamor for a law against political dynasties. Without a law implementing the constitutional prohibition, the end of dynasties is nothing more than a consummation devoutly to be wished. This, in fact, is true of practically all the provisions in Article IIs Declaration of Principles and State Policies. They need implementing laws. The big question is: What are the chances that an anti-political dynasty bill will become law? This is not a novel question. The constitutional provision itself was a subject of debate in the 1987 Constitutional Commission. The political dynasty provision was authored by Commissioner Jose N. Nolledo. A similar provision had already been rejected under the article on local governments, but Nolledo entertained the hope that the Constitutional Commission might still approve one because, as he said, It seems to me that th e resolution asking for a provision in the Constitution is very popular outside but does not seem to enjoy the same popularity inside the Constitutional Commission. He was also faintly hoping that Congress would do what the commission would not do. Hence his impassioned plea: And so I plead with the members of the Commission to please approve this provision. . . . [W]e leave it to Congress to determine the circumstances under which political dynasty is prohibited. The commission will not determine hard and fast rules by which political dynasty may be condemned. But I think this is a very progressive provision and, in consulting the people, the people will like this provision. I hope the commission will hear the plea of the people. The thrust of the constitutional provision is to impose on the state the obligation of guaranteeing equal access to public office. Although the provision speaks in terms of service, it is meant to be a blow in the direction of democratizing political power. Nolledo had the support of Commissioner (now Comelec Commissioner) Rene Sarmiento, who explained the rationale of the provision thus: By including this provision, we widen the opportunities of competent, young and promising poor candidates to occupy important positions in the government. While it is true we have government officials who have ascended to power despite accident of birth, they are exceptions to the general rule. The economic standing of these officials would show that they come from powerful clans with vast econ omic fortunes. But strong contrary views were also expressed. Commissioner Christian Monsods was brief: I just want to make the motion to delete Section 20 [now 26], first, because it has been argued and debated fully in the Article on Local Governments and this body has already made a decision on the same point; and, secondly, for the reasons I have stated, that I do not think we should curtail the right of the people to a free choice on who their political leader should be. Commissioner Blas Ople for his part argued that what were called dynasties were in fact not the causes of social evils but the result of socio-economic imbalances. He concluded that the commission should address these socioeconomic imbalances instead. He also noted that even under present conditions, less privileged citizens have succeeded in establishing themselves politically. He added: In my own province there are no longer any dynasties. There are other provinces where you find the word dynasty probably misapplied to a disti nguished family, let us say, to the Cojuangco and Aquino family in Tarlac or the Padilla family in Manila and Pangasinan, or the Rodrigo family in Bulacan, or the Laurel family in Batangas, and the Sumulong-Cojuangco family in Rizal, the Calderon family in Nueva Vizcaya, and Peps Bengzon has been calling my attention to the existence now of a Bengzon line of political officeholders in Pangasinan. This is not to say, Mr. Presiding Officer, that the Philippine society has been immobile. We see lots of evidence that, in fact, people disadvantaged by the accident of birth have indeed risen through their own efforts to become successful competitors of entrenched political dynasties in their provinces and cities. I can sympathize with Commissioner Nolledos concern about dynasties because he comes from a province which tends to be governed by political dynasties. Is that not right, Mr. Presiding Officer? The argument that the electorate should be left free to decide whom to choose is not without validity. Partly for that reason, the meaning of political dynasties has been left for Congress to define. But since Congress is the principal playground of political dynasties, the realization of the dream, that the provision on political dynasties would widen access to political opportunities, will very probably be exhaustingly long in coming. There is pending in the Senate, since 2011, Senate Bill 2649 authored by Sen. Miriam Defensor-Santiago. Her Explanatory Note pretty much sums up the arguments expressed by others f or the passage of such a bill. But the bill still languishes unattended. Will a constitutional amendment by referendum and plebiscite, as suggested by Comelec Chair Sixto Brillantes, succeed in drafting a provision that defines what political dynasty means? But amendment by initiative and referendum has had its own problems.
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The RP-MILF framework agreement (Part 2)

1:53 am | Monday, October 22nd, 2012 0 69 3
There was big hoopla at the signing of the Framework Agreement on the Bangsamoro between the Philippine government and the Moro Islamic Liberation Front last week. I found that somewhat amusing because one of the clearest characteristics of the agreement is its lack of clarity. It leaves so much unsaid. As the agreement itself says, The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year. So what did the parties really agree about beyond agreeing to continue working? Moreover, what will be achieved by the end of the yearthat is, a little over two months from nowwill not yet be the peace agreement itself but the guidelines to be followed in formulating the substantive provisions of the peace agreement. The full peace agreement will be the Basic Law formulated by Congress and approved in a plebiscite by the constituent units. Year 2016 seems to be the target. Let me now comment on some possible constitutional issues which need elaboration. The ministerial concept has been criticized. I have no problem with it even if I dont know what is exactly meant by it. I guess it can mean either a Cabinet form or a parliamentary form of government. Whatever it is, it really makes no problem because, while the Constitution specifies a presidential form of national government, it does not have the same prescription for local governments. We might recall that Metro Manila had a commission form of government which was neither prescribed nor prohibited by the 1973 Constitution. More crucial is the envisioned relationship between the central government and the Bangsamoro government. It is called asymmetric. Again I do not know what this is meant to hide. Could it be that the framework is just avoiding the term associative found in the Memorandum of Agreement on Ancestral Domain (MOA-AD) of 2008? If this is the case, we have to recall what the Supreme Court said of that relationship. The Court rejected it as having no place in the Constitution. Of course, the 2008 Court was referring to specific provisions of the MOA-AD containing the associative principle. We do not yet know what the current Court might say since we have not yet been told what the framework means by asymmetric relationship. Central to the formulation of the Basic Law will be the role of Congress. It is Congress that will enact the Organic Act for the autonomous region. The shape of Congress that will enact the Basic Law will be affected by the coming national elections. The senatorial and congressional campaigns, especially in regions that will be affected by the desired Bangsamoro Basic Law, will have to take into consideration the sentiment of voters in those areas. In framing the Bangsamoro Basic Law, the main guide should be the Constitution. This is not clearly reflected in the framework. The framework says that the provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties. Similarly, it says that the Bangsamoro shall have a just and equitable share in the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties. This seems to mean that Congress, in the formulation of the Basic Law, must accept any agreement of the parties. This seems to make Congress a rubber stamp for whatever the agreement wants. Again, this needs clarification. The framework recognizes as possessing the Bangsamoro identity those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full b lood together with their spouses and descendants, but adding that the freedom of choice of other indigenous peoples shall be respected. This is the same as the provision in the MOA-AD. Will this satisfy those who are not indigenous Moros? Both the MOA-AD and the framework lump together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, including Palawan. More acceptable is the provision of the current Organic Act which distinguishes the Bangsamoro people (that is, those who are believers in Islam and who have retained some or all of their own social, economic, cultural and political institutions) and other tribal peoples whose social, cultural and economic conditions distinguish them from other sectors of the national community. Another contentious issue will be determination of the areas that will be part of the Bangsamoro territory. What the framework proposes is larger than the Autonomous Region in Muslim Mindanao territory today. This will require a plebiscite as prescribed by the Constitution. Next there is the powerful Transition Commission. Will the Moro National Liberation Front be given a role? These are some of the potential issues already reflected in the current shape of the framework agreement. Other issues will arise from the final form of the framework when it is completed at the end of next December. Everyone will be waiting for that final framework agreement. It can either increase or diminish the volume of the current chorus of jubilation.
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The RP-MILF framework agreement (1)

12:25 am | Monday, October 15th, 2012 0 298 0
There is much rejoicing over the framework agreement reached between the Philippine government and the Moro Islamic Liberation Front about achieving peace in Muslim Mindanao. There is justification for the rejoicing mainly because we have overcome the stalemate that resulted from the rejection of the 2008 Memorandum of Agreement on Ancestral Domain (MOA-AD) by the Supreme Court, and the parties have agreed to stop fighting for now. The central issue of that 2008 failed process was the extent of the presidents power in pursuing the peace process. That issue is still alive. If the framework, like the MOA-AD, is challenged before the Supreme Court, once again the Court will have a big task to perform. As the prefatory statement of the Court in 2008 said, It must uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively. Some of the issues that arose from the 2008 MOA-AD may also be found in whatever final form the new peace agreement will take. The framework agreement is not yet the peace agreement. It is an agreement to work toward the formulation of the peace agreement. The very first section of the framework already announces the enormity of the challenge: The Parties agree that the status quo is unacceptable and that the Bangsamoro shall be established to replace the Autonomous Region in Muslim Mindanao (ARMM). The Bangsamoro is the new autonomous political entity (NPE) referred to in the Decision Points of Principles as of April 2012. The rejected status quo has its root in Article X of the 1987 Constitution, and in the organic act giving life to the current ARMM, a work of Congress. And as the organic act itself says: Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the votes cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision. It is therefore clear that Congressboth as a statutory body and, if necessary, as a constituent assemblywill be needed in the formulation of the final form of the peace agreement. The framework is an unfinished document. As the final provision says: The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year. What will be achieved by the end of the year, that is, by the end of next December, if at all, cannot yet be the peace agreement itself but the guidelines to be followed in formulating the substance of the peace agreement. The framework itself in its present form, notwithstanding widespread jubilation, already poses some procedural challenges and hints at the constitutional issues that may arise. A major procedural part of the framework itself will be the formation of the powerful Transition Commission. The composition of its membership can be a delicate issue. Will the Moro National Liberation Front have a role? The Transition Commission will make the preliminary draft of the substantive changes that the agreement proposes to achieve. What are the substantive issues already reflected even from the current framework which the government may have to defend or clarify? First, the framework says that the form of government shall be ministerial. The parties still have to clarify what this means. The framework says that the relation between the Bangsamoro and the central government shall be asymmetric. What does this mean? Is it different from the associative relati on rejected by the Court in 2008 as having no place in the Constitution? The framework recognizes the Bangsamoro identity of those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood together with their spouses and descendants. But the freedom of choice of other indigenous peoples shall be respected. Will those who are not ind igenous Moros be happy to be identified as Moros? The framework says that the provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties. Does this mean that Congress, in the formulation of the Basic Law, may not reject any agreement of the parties? And what about the Constitution? The framework says that the Bangsamoro shall have a just and equitable share in the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties. Does this mean the curtailment of the power of Congress, contained in the Constitution, to determ ine the local government share in the proceeds of natural resources in the area? The determination of the components of the Bangsamoro territory will surely be a contentious issue as it was in 2008.
These are some of the potential issues already reflected in the framework today. Will this administration succeed before Mr. Aquino steps down at the end of his presidency?
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What about the party-list system?

11:27 pm | Sunday, October 7th, 2012 0 120 0
Whenever I am asked what provision of the current Constitution I think should be amended, I do not say that nothing there deserves to be amended. In fact, I would be the first to say that what we have now is by no means a perfect document. It is a work in progress and will continue to be such for as long as the Republic lasts. In a recent talking engagement, I was asked what three provisions of the Constitution I would like to see amended. I gave two answers and one of them was for a serious reassessment of where the party-list system has brought us. I was not surprised when that answer received applause. After all, it is widely publicized that the Commission on Elections is now in the process of cleaning up the system. The original inspiration for the introduction of this novelty into the Constitution was a fairly widespread desire to give the underprivileged sectors of society the capacity to represent themselves in the affairs of the nation. The idea was generally accepted as valid, but the problem was how to put it into a workable formula that could produce the desired result. Nevertheless the Constitutional Commission went ahead to engraft it in the Constitution as an experiment. The experiment has been going on for 25 years now. That the Comelec is now engaged in a major cleanup campaign is proof that we have not yet solved that problem. Should we continue the experiment or end it? The experiment started with two related concepts found in the Constitution itself: sectoral representation and party-list representation. The first phase was sectoral representation. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth and such other sectors as may be provided by law, except the religious sector. How were they to be chosen? Until a law is passed, the president may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representation . . . Sectoral representation lasted for nine years. Thereafter the party-list system came into force. Under the party-list system, disadvantaged groups would still organize by sectors. Next, they register themselves as parties, and present themselves to the electorate. Hence, during election time, every voter casts two votes: one for a district representative and one for a party-list organization. A citizen can vote for any party. At the end of the day, the Comelec tabulates the votes cast to determine how many votes each party or organization garnered. In the earlier phase of the implementation of the system, only the party-list organizations which garnered at least 2 percent of the total votes cast for party lists could win a seat in Congress. Under this rule, while the party lists were entitled to 20 percent of the total seats in Congress, the 20 percent reserved for them mathematically could never be filled. Hence, the Supreme Court declared the 2-percent requirement as unconstitutional and the 20-percent share of party-list organizations as mandatory. Now, the Comelec keeps choosing qualifiers until 20 percent of the total seats in Congress are filled. The system as described seems neat enough. But why are party-list aspirants being disqualified? First, it is a known fact that elections cost money. The three-term grace period given to sectoral groups was meant to enable them to build up their resources in order for them to be capable of competing in the political arena. That was a tall order and I doubt that they succeeded in gathering enough political strength. Second, left to struggle in weakness, they become easy prey to stronger political parties or wealthy individuals with goals of their own. This easily results in the bastardization of the system. Third, as pronounced by the Court, participation in the party-list system is limited to the marginalized and underprivileged and the system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. The Court laid down guidelines for the Comelec to apply in deciding which organizations qualify. Among the guidelines was the requirement that the parties or organizations must truly represent the marginalized and underrepresented sector. The Comelec now is finding that many aspiring organizations do not satisfy this requirement. Moreover, the Court also ruled that party-list representatives themselves must represent marginalized and underrepresented sectors. That is, they must have at heart the interest of the party they represent. The problem,
however, is that possession of this ideological quality is not easily proved or disproved. How do you prove, for instance, that Mikey Arroyo has or does not have at heart the interest of the party he represents? This is not to say that there are no leaders that have arisen from the ranks of party-list organizations. A few have. But does their number justify the continuation of the experiment?
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Whats frightening about the cybercrime law?

1:55 am | Monday, October 1st, 2012 2 980 68
My relaxation reading these past few days has been Winter of the World, Ken Follets Book 2 of his The Century Trilogy. The first few chapters are about the gradual rise of fascism and Nazism amidst an unsuspecting world lulled by the idea that the government knows what is best for the people. Meanwhile, within our midst there is a debate going on about how to teach the facts and the lessons of martial law in schools. I find this to be an opportune moment to talk about the new cybercrime law or Republic Act 10175 to see what shades of Nazism, fascism and martial rule it might contain. The new law is getting to be the talk of the town these days in legal circles and has signaled hackers of government websites into action. Inevitably the controversy on the subject will reach the Supreme Court, and the decision should tell us more about the mind of new Chief Justice Maria Lourdes Sereno. Meanwhile, let me just put down a number of preliminary observations. The title of the law is AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES. The intention of the law, partly good and partly chilling, is set down in its Declaration of Policy. The good intention is to acknowledge the important role communication technology can play for the nations overall s ocial and economic progress. The chilling part is the empowerment of the executive arm to effectively prevent and combat [cyber] offenses by facilitating their detection, investigation and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation. As can easily be seen, the law deals not only with the most delicate rights of freedom of expression, freedom of communication, and the privacy of communication but also with the equally sacred right of the people to be secure in their persons, houses, papers and effects against government intrusion. These rights suffered during the period of martial rule. Their suppression or impairment is usually the target of governments that have dark intentions. When criticized, the facile answer given to critics by those with dark intentions is that these rights are not absolute. That defense is already being repeated by Palace mouthpieces. It is therefore a good time to look into the disturbing aspects of the law. We might begin by taking at least a preliminary look at some of the provisions which are now under attack. Section 6 of the law says: All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies, shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. Libel has been decriminalized in other civilized jurisdictions. Our legislature, instead, will throw us back to the dark ages by imposing a higher penalty for libel. In effect, the advance in communication technology is being treated not as a boon but as a bane. Section 7 says: A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. This is a clear invitation, if not to double jeopardy, at least to harassment through threat of a second prosecution. If you are thinking that second prosecution for the same offense is just an invention of American jurisprudence, guess again. Even under Spanish law it was already prohibited by the Fuero Real and the Siete Partidas. Section 7 is once again a throwback to the era even before Fuero Real and Siete Partidas were born. But what is most disturbing to many is Section 19 which says: When a computer data is pri ma facie found to be in violation of the provisions of this Act, the DOJ [Department of Justice] shall issue an order to restrict or block access to such computer data. There are very valid reasons for being frightened by this. I for one recall the law on search and seizure in effect during the past martial law period. Whereas now no search warrant or warrant of seizure may issue except upon probable cause to be determined by a judge, Section 19, now popularly called the takedown provision, does not require probable cause but only prima facie evidence determined not by a judge but by the Department of Justice.
This is a throwback to the provision under martial rule when warrants for the search and seizure of persons, houses, papers and effects could be issued by a responsible officer as may be authorized by law. Not only that: Whereas under the draconian rule of martial law warrants could issue only after examination under oath of the complainants and witnesses he may provide, no such safeguard is found in Section 19. It will not do to say that whatever shortcomings there are in RA 10175 will be remedied by its IRR (implementing rules and regulations). Rules and regulations cannot cure defects in a law. Moreover, RA 10175 is a penal law. In other words, it commands obedience under pain of punishment. Fundamental fairness therefore demands that those commanded should be able to understand what the command says simply by reading the law.
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Understanding Catholic universities

11:58 pm | Sunday, September 2nd, 2012 0 22 0
In discussing Catholic universities one must begin with Canon 808 of the Code of Canon Law which says: Even if it really be Catholic, no university may bear the title or name Catholic university without the consent of the competent ecclesiastical authority. In that technical juridical sense, the Ateneo and almost all other institutions in the Philippines, save one perhaps, which are publicly regarded as Catholic, are not in juridical terms Catholic. But are they Catholic in any other sense? Even Canon 808 suggests that institutions which do not have the ecclesiastical title of Catholic can in fact be really Catholic. The appellation of Catholic can come from various sources. It can come, for instance, from its origins as founded by various religious orders of men and women. That in fact is how most Catholic institutions in the Philippines started. The appellation also comes from what in fact they do. For this reason these institutions are recognized as affiliated with the Church even if not canonically Catholic. It must also be said that a canonical title is not the litmus test for being truly Catholic. Pope John Paul II in fact looks for more in a Catholic university. In a speech before Catholic universities in the United States, both canonically recognized and not, he said: A Catholic university or college must make a specific contribution to the Church and to society through high -quality scientific research, in-depth study of problems, and a just sense of history, together with the concern to show the full meaning of the human person regenerated in Christ, thus favoring the complete development of the person. Furthermore, the Catholic university or college must train young men and women of outstanding knowledge who, having made a personal synthesis of faith and culture, are both capable and willing to assume tasks in the service of the community and of society in general, and to bear witness to their faith before the world. And finally, to be what it ought to be, a Catholic college or university must set up, among its faculty and students, a real community which bears witness to a living and operative Christianity, a community where sincere commitment to scientific research and study goes together with a deep commitment to authentic Christian living. This is your identity. This is your vocation. . . . The term Catholic will never be a mere label, either added or dropped according to the pressures of varying factors. Briefly, a Catholic university is not just an institute for teaching catechism. Further, in the same speech, John Paul II emphasized the importance of academic freedom: As one who for long years have been a university professor, I will never tire of insisting on the eminent role of the university, which is to instruct but also to be a place of scientific research. In both these fields, its activity is deeply related to the deepest and noblest aspiration of the human person: the desire to come to the knowledge of truth. No university can rightfully deserve the esteem of the world of higher learning unless it applies the highest standards of scientific research, constantly updating the methods and working instruments, and unless it excels in seriousness, and therefore in freedom of investigation. It is in this context that Fr. Jose Jett Villarin has defended what the Ateneo professors have been doing. At the same time, this is the measuring rod according to which Ateneo professors, and other professors of Catholic universities, must examine their individual consciences. Similarly, those who criticize them must meet them in the context of the field of expertise from which they write and not only in the limited context of the Baltimore Catechism. One might also ask, is Father Jett being faithful to the teachings of the Society of Jesus? We Jesuits tend to disagree among ourselves about almost everything. As an Italian saying goes, Tre Jesuiti, quattro opinioni. Perhaps cinque or even more. But I think if we surveyed the opinion of Jesuits in school work we will find them overwhelmingly in agreement with the words of the superior general of the Jesuits, Fr. Peter-Hans Kolvenbach in an address titled The Jesuit University in the Light of Ignatian Charism. He said: Far be it from us to
try to convert the university into a mere instrument of evangelization or, worse still, for proselytizing. The university has its own purposes which cannot be subordinated to other objectives. It is important to respect institutional autonomy, academic freedom, and to safeguard personal and community rights. Father Kolvenbach goes on to insist that there is no inherent schizophrenia in the identity of a Jesuit college or university. In a Catholic university, or one of Christian inspiration, under the responsibility of the Society of Jesus, there does not exist nor can there exist incompatibility between the goals proper to the university and the Christian and Ignatian inspiration that should characterize any apostolic institution of the Society of Jesus. Father Jett told me at supper that Archbishop Chito Tagle, at the wake for Jesse Robredo, condoled and commiserated with him (probably with a wink!) as he parries the slings and arrows coming his way from loyal Catholic catechists. Jett can take it. He is young and was valedictorian of the same Ateneo college batch as Chief Justice Maria Lourdes Sereno.
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Bishops at war
10:01 pm | Sunday, August 26th, 2012 0 41 11
In the wake of the controversy about the Reproductive Health bill a couple of bishops have gone to war against university professors and, in the process, have issued dire warnings against Catholic universities. They threaten stripping universities of the title Catholic. I doubt that the bishops were thinking about what is happening to the Pontifical Catholic University of Peru because there is only one Pontifical Catholic University in the Philippines, and it is not the Ateneo. At any rate, are the bishops waging a just war? I will not attempt to answer that question. I will simply say that the professors and the universities can take care of themselves. But as election time approaches, there is also a threatening war against defenders of the RH bill who might dare run for public office in the coming elections. And since we, and not only bishops, are interested in the Churchs teaching on church and politics, we might all learn something from what a young Jesuit colleague of mine has put together in a piece from which I will freely quote or paraphrase. (Let this mention of my young colleague count as the required acknowledgment of sources needed to avoid accusations of plagiarism!) Will a holy war against candidates who support the RH bill get the support of Pope Benedict XVI? In Deus est Caritas, Benedict XVI emphasized the old Catholic teaching that the formation of a just society as a political task is not a direct duty of the Church; this task belongs properly to the laity. The role of the Church is indirect: to purify reason and inspire ethical political participation leading to the building of a more just society. The Catholic Bishops Conference of the Philippines (CBCP) its elf, as a plenary body, does not endorse nor disapprove candidates, but it allows individual bishops to do so. Such a two-level approach to granting or denying political blessings to candidates may prove to be confusing for Filipino Catholic voters who usually identify the statements and actions of individual bishops as the moral position of the entire hierarchy. But that is the price we pay for freedom of expression which, when not properly used by a church leader, can work even against the Church itself. It is also good to recall what the Second Plenary Council of the Philippines (PCP2) taught. My young colleague shared these quotations from PCP2: The public defense of gospel values, however, especially when carried into the arena of public policy formula tion, whether through the advocacy of lay leaders or the moral suasion by pastors, is not without limit. It needs emphasizing, that, although pastors have the liberty to participate in policy debate and formulation, that liberty must not be exercised to the detriment of the religious freedom of non-communicants, or even of dissenting communicants. This is a clear implication of Vatican IIs Dignitatis Humanae. This is not just a matter of prudence; it is a matter of justice. There may even be some Catholic believers who in all honesty do not see the truth the way the Churchs magisterium discerns, interprets and teaches it. In such a situation, the Church must clearly and firmly teach what it believes is the truth and require its members to form their consciences accordingly. Yet the Church must also, with all charity and justice, hold on to its doctrine on religious freedom that the human person is bound to follow his or her conscience faithfully, and must not be forced to act contrary to it. When a bishop tells his pro-RH bill congressional candidate that his diocese will campaign against him or her in future elections, the bishop is no longer seeking to persuade the legislator about the reasonableness of the Churchs position but rather the bishop is simply appealing to the legislators instinct of self-preservation. Such a tactic is counter-productive to the formation of a kind of politics that is based on principles because it reinforces a way of practicing politics that values expediency rather than service, justice and the common good.
Besides, the threat against candidates would be meaningful if there were such a thing as a Catholic vote. The CBCP itself, in its Catechism on Church and Politics for the 1998 elections, had denied the existence of a Catholic vote: There is generally no such thing as a Catholic vote or the Bishops candidates. This is simply a myth. It still is today. The CBCP Catechism provided for an extraordinary exception when a prelate can order the lay faithful to vote for one concrete political option: This happens when a political option is clearly the only one demanded by the Gospel. An example is when a presidential candidate is clearly bent to destroy the Church and its mission of salvation and has all the resources to win, while hiding his malevolent intentions behind political promises. In this case the Church may authoritatively demand the faithful, even under pain of sin, to vote against this particular candidate. But such situations are understandably very rare. The CBCP intended this exception to be used only on rare and grave occasions such as when the survival of the Church and its mission would be at stake. I doubt that the CBCP would apply this to a bishops desire to apply political pressure on a legislator to vote against the RH bill.
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A new chief justice; an amended HB 4244

2:05 am | Monday, August 20th, 2012 0 42 4
The basic, constitutional quality requirements for a chief justice are no other than competence, integrity, probity and independence. No one can possess all these qualities in a degree higher than all the other nominees. Not one of the nominees, for instance, can be said to possess the highest degree of competence in all fields of law. The scope of law is so broad that necessarily there are varying fields of specialization. Precisely the Supreme Court is a collegial body in recognition of this factand so that it can resolve the various problems that can be brought before it. In terms of competence, it can be assumed that all the nominees have sufficient competence to engage in the give-and-take debates within the Court. The qualities of integrity, probity and independence are interrelated. How the nominees are ranked according to these qualities is crucial for President Aquinos choice. Which of those are the most important for the goals that Mr. Aquino has in mind? His expressed dissatisfaction with those listed might give us an idea of what kind of chief justice he wants. Amending House Bill 4244. Those seriously studying the RH bill should take a look at the amendments already offered by the authors of the bill themselves. They are contained in Rep. Edcel Lagmans letter to Rep. Rogelio J. Espina, chair of the Committee on Population and Family Relations. However, to understand the proposed amendments, one must read and study HB 4244 and not just rely on criticisms by some who may never have read it, much less studied it. Yes, there are a good number of misconceptions about the bill, and there can be dishonest critics who set up straw men they can merrily attack. One may ask, for instance, how many among the Church authorities have read and studied HB 4244? This is an important question because I see the amendments as efforts to adjust to the transition from an established Catholic Church whose word was law to todays demands of freedom of religion. I propose the pulling together of the various amendments already accepted by the authors of the bill. Sec. 13. Role of barangay health workers. Instead of saying that they should give priority to family planning work, simply say they should help implement this Act. This should obvia te the complaints that family planning is being given undue emphasis. Sec. 15. Funding Mobile Health Services. Charge the funding to the national government, not to the lawmakers Priority Development Fund (PDAF) while at the same time allowing individual lawmakers to use their PDAF. Sec. 16. Mandatory Age-Appropriate Sex Education. Give parents the option not to allow their children to attend mandatory sex education; at the same time give assistance to parents who want help in this matter. This is in conformity with the primary right of parents. Sec. 20. Ideal Family Size. Delete the entire provision. This will preclude further misinformation about the meaning of this provision. Sec. 21. Employers Responsibility. Delete this because it is simply a restatement of Article 134 of the Labor Code. Deleting it will preclude further debate.
Sec. 28(e) Prohibited Acts. Delete the provision which penalizes any person who maliciously engages in disinformation about the intent and provisions of this Act. There already are penal limits to the freedom of expression. In addition to the amendments proposed by the authors of the consolidated bill, there are others which are worth considering. Let me mention a few: On Age-Appropriate Reproductive Health and Sexuality Education 1. Private schools can opt to provide an alternative sexuality education curriculum based on the schools religious beliefs or values. The government will monitor if there is a curriculum being implemented, whether the standard one or the alternative one. 2. If a public school cannot provide enough adequately trained teachers or there are public school teachers who cannot teach the governments curriculum because of religion -based objections, the proper government agency would send trained instructors to teach the sexuality education classes. 3. An additional topic for the curriculum is the role of religious freedom and conscience in choosing the means of planning families. On Prohibited Acts Any health care service provider, whether public or private, who shall require a person to undergo sterilization as a condition for providing indigent patients with basic health care, emergency care or health care shall be penalized. I realize that there are other urgent matters which Congress must consider. But the effort of some to block the period of amendments merely as a tactic for preventing the bills approval does a disservice to the nation.
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Quo vadis, JBC?

12:48 am | Monday, August 13th, 2012 041
As my law school colleague Tony La Via put it, in earlier days the president had to present an impeccable nominee for chief justice to the Commission on Appointments or risk being rebuffed. How true, how true! And we did get the likes of Manuel Moran and Roberto Concepcion. As I see it now, the Judicial and Bar Council seems to be hemming and hawing on the way to preparing a peccable list. It promises to be a proximate occasion for sinning. How else explain, among others, the debate on whether the rules of the JBC game should be changed while the game is going on. You dont do that even in high school competition. And this is judicial Olympics! A modern Henryk Sienkiewicz might be inspired to write a novel about a team of seven wading through the floods along Padre Faura, in mid-storm, and meeting Ninoy Aquino and asking him, Where are you going? and receiving the answer I am going back to the tarmac to meet my assassin again! At this point in our history it might be salutary to recall the high hopes for the JBC. Under the 1935 Constitution appointments to the judiciary had to go through the Commission on Appointments. Former Chief Justice Concepcion thought that the Commission on Appointments process was too politically tainted. He wanted a depoliticized process, a consummation also devoutly wished by many members of the Constitutional Commission. Hence Concepcion proposed a JBC which, in its final form, would consist of the chief justice as exofficio chair, the minister of justice and a representative of Congress as ex-officio members, and as regular members a representative of the Integrated Bar of the Philippines, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The regular members would be appointed by the president, with the consent of the Commission on Appointments, and the representative of Congress would be chosen by Congress. Whether or not the JBC could shield the appointment process from the vagaries of politics was tested when it was preparing a list of persons who could fill the vacancy to be created by the retirement of Chief Justice Reynato Puno. What appeared then was that the JBC could not stop a president who wanted to have her way. She had her way, and the mistake led to very tragic consequences for two people, not to mention for the nation. Already the flaw in the JBC idea was detected even during the deliberations of the Constitutional Commission. We can see that from the following exchange: MR. RODRIGO: Of the seven members of the council [JBC], the president appoints four of them who are the regular members. MR. CONCEPCION: Yes, that is right. MR. RODRIGO: So, majority of the members of the council are appointees of the president. MR. CONCEPCION: That is right.
MR. RODRIGO: Can the members of the council be reappointed? MR. CONCEPCION: They can be reappointed. MR. RODRIGO: Yes, they can be reappointed, because the tenure of office is staggered one is appointed for four years, the others are for three years, two for one. MR. CONCEPCION: The only purpose of the committee is to eliminate partisan politics. MR. RODRIGO: So, the member who is appointed for a one-year term can be reappointed for a three or four-year term. There is no limitation on reappointment. MR. CONCEPCION: Yes. Rodrigo stopped there; but the point of his questioning was that the new process, although intended to eliminate partisanship, strengthened the hand of the president, himself a very partisan animal, and thereby simply transferred partisanship from the Commission on Appointments to the Office of the President. It was for the purpose of lessening the influence of the president that the commission decided to require confirmation of the regular JBC members by the Commission on Appointments. Recent developments, however, both avoidable and unavoidable, have tended to strengthen the hand of the president some more within the JBC. The unavoidable development is the absence of the acting chief justice or the most senior of the associate justices from the chairmanship of the council. Whether we admit it or not the chief justice carries into the council a clout which the other justices do not yet have. But his absence is unavoidable because of the justifiable inhibition of all justices more senior than the present JBC acting chair. The burden, therefore, of keeping the JBC honest falls to a great extent on the shoulders of Justice Diosdado Peralta who seems to be enjoying the job. The avoidable development is the replacement of the justice secretary with an undersecretary from the Office of the President. True, both of them belong to the executive department. But the intent of the Constitutional Commission in specifying the justice secretary as ex officio was to remove the choice for this slot in the JBC out of the hand of the president. But given the opportunity to handpick a replacement for a department secretary in the JBC, President Aquino chose one who, by his physical closeness to the Palace, is less likely to exercise independent choice. Lets face it, unwittingly perhaps, we of the 1987 Constitution inser ted into the document aspects which have made the president of the 1987 Constitution more dominant than the president of the 1935 Constitution. One need not wonder, therefore, why the President is in no hurry to open the document for reexamination.
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RH bill: Dont burn the house to roast a pig

12:51 am | Monday, August 6th, 2012 287 11.1K 7962
A little over a year ago, or on May 22, 2011 to be exact, I wrote an article for the Inquirer titled My stand on the RH bill. With the vote on the Reproductive Health (RH) bill approaching, people have asked me whether my stand on the bill has changed. Let me restate the salient points I made then. First, let me start by saying that I adhere to the teaching of the Church on artificial contraception even if I am aware that the teaching on the subject is not considered infallible doctrine by those who know more theology than I do. I know that some people consider me a heretic and that at the very least I should leave the priesthood. But my superiors still stand by me. Second (very important for me as a student of the Constitution and of church-state relations), I am very much aware of the fact that we live in a pluralist society where various religious groups have differing beliefs about the morality of artificial contraception, which is very much at the center of the controversy. But freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act according to what one believes. Hence, the state should not prevent people from practicing responsible parenthood according to their religious belief, nor may churchmen pressure President Aquino, by whatever means, to prevent people from acting according to their religious belief. As the Compendium on the Social Doctrine of the Catholic Church says: Because of its historical a nd cultural ties to a nation, a religious community (like the Catholic Church) might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups; and Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority. Third, the obligation to respect freedom of religion is also applicable to the state. Thus, I advocate careful recasting of the provision on mandatory sexual education in public schools without the consent of parents. (I assume that those
who send their children to Catholic schools accept the program of Catholic schools on the subject.) My reason for requiring the consent of parents is, in addition to the free exercise of religion, there is the constitutional provision which recognizes the sanctity of the human family and the natural and primary right of parents in the rearing of the youth for civic efficiency and the development of moral character. (Article II, Section 12) Fourth, the duty to care for sexual and reproductive health of employees should be approached in a balanced way so that both the freedom of religion of employers and the welfare of workers will be attended to. In this regard it may be necessary to reformulate the provisions already found in the Labor Code. Fifth, I hold that public money may be spent for the promotion of reproductive health in ways that do not violate the Constitution. Thus, for instance, it may be legitimately spent for making available reproductive materials that are not abortifacient. Public money is neither Catholic, nor Protestant, nor Muslim or what have you and may be appropriated by Congress for the public good without violating the Constitution. Sixth, we should be careful not to distort what the RH bill says. The RH bill does not favor abortion. The bill clearly prohibits abortion as an assault against the right to life. Seventh, in addition, I hold that abortifacient pills and devices should be banned by the Food and Drug Administration. However, determining which of the pills in the market are abortifacient is something for the judicial process to determine with the aid of science experts. Our Supreme Court has already upheld the banning of at least one device found to be abortifacient. Eighth, I am dismayed by preachers telling parishioners that support for the RH bill ipso facto is a serious sin or merits excommunication! I find this to be irresponsible. Ninth, I claim no competence to debate about demographics. Tenth, I have never held that the RH bill is perfect. But if we have to have an RH law, I intend to contribute to its improvement as much as I can. I hold that the approval of the RH bill today will not end all debate about it. It will only shift the arena for debate from the raucous and noisy rally fields to the more sober judicial arena where reason has a better chance of prevailing. Finally, there are many valuable points in the bills Declaration of Policy and Guiding Principles which are desperately needed especially by poor women who cannot afford the cost of medical service. There are specific provisions which give substance to these good points. They should be saved even if we must litigate later about those which we disagree on. In other words, let us not burn the house just to roast a pig.
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The JBC, the Olympics and St. Ignatius

12:34 am | Monday, July 30th, 2012 0 83 30
About the time that the Judicial and Bar Council was winding down its interviews of the candidates for chief justice, the 2012 Olympiad opened. Although I did not watch all the interviews, I saw enough to be able to sense the spirit into which the candidates entered the fray. I found a good description of that spirit in one of the passages of an article by Nicholas King, SJ, professor of Biblical Studies at Campion Hall, University of Oxford, on the sporting metaphors in the letters of St. Paul. In 1 Corinthians 9:24-27 Paul writes: Dont you realize that the runners in the Stadium, all of them run, but only one gets the medal? You are to run in such a way as to win. (Each one) who is in athletic training exercises self-control (but they do it to win a medal that will fade away!); so I am running in such a way as not to be without purpose. When I box, I do it in such a way as not to land my blows on empty airinstead I let my body know who is boss, and I make it my slave . . . Paul, of course, was exhorting the Corinthian Christians to be serious about their Christian responsibilities as athletes are about training and winning. There is no question that each of the candidates for chief justice prepared to present themselves to win. Its just too bad that only one of the 20 will get the medal. In the course of the interviews, there were allusions to internal conflicts within the current Supreme Court and to conflicting views on the existence or nonexistence of such conflicts. Although the interviews showed no evidence of conflict among the candidates themselves, I might mention another Pauline athletic metaphor cited by King from Pauls letter to the Philippians, a letter which Paul wrote from prison. King refers to the passage where Paul, exhorting the Christians to work together, uses a Greek verb which roughly means playing on the same side together in an athletic contest. Paul uses the verb again when he is trying to persuade the two redoubtable ladies, Evodia and Syntyche, to stop scratching each others eyes out. This is by no means to suggest that among the ladies interviewed or in the Supreme Court there are redoubtable ladies going after each other! Paul was simply exhorting them to play on the same team as me and Clement, and the rest of our team. Later on, Paul would add: We are
engaged in the same agon, an agon being any kind of athletics contest and an agony is what you go through when you are in deep training for the Olympics. There are other sporting metaphors which King cites, but let me just conclude on a positive note with Paul talking again in athletic terms of my boast that I did not run a pointless race, nor was all my hard training pointless, and he is happy to have been through it all for the sake of the Philippians and their joy (see 2:17-18). This, I suppose, is where we hope the JBC Olympiad will lead to. Finally, since tomorrow (Tuesday) will be the feast of St. Ignatius, my favorite spiritual athlete, allow me to say a word about his Olympic experience. I guess that for many of us, one of the consoling facts about the life of St. Ignatius is that he was not born a saint. We have some in our Jesuit roster who were born saints, like John Berchmans, Stanislaus Kostka, and Aloysius Gonzaga. They died early in their youth. They were put up to us as our models when we were young Jesuit novices trying to become saints; but we were quite aware that it would be an uphill struggle for us because we knew that we carried a baggage more like that of the unreformed young Iigo. We were made aware that like Ignatius we would have to go through a Pauline agon. (For that reason, perhaps, God has not allowed me to die early.) Ignatius was born Iigo during an era when legislators were not yet fighting about family planning. He was the youngest of 13 children. He lost both father and mother at a very early age. That usually does not augur well for the development of a child. Thus, as might be expected, the young Iigo gave way to an abundance of wild energy. He himself tells us in his autobiography that he reveled in gambling, dueling and wenching. But, and this is a remarkable fact, as I always tell my law students, he never landed in jail. Although becoming a priest was farthest from his youthful dreams, he went through the early steps toward the priesthood by taking what were then called Minor Orders. These were enough to make him technically a cleric, and, in an era when there was no separation of church and state, these were also enough to give him immunity from arrest for minor offenses. (Even now, fortunately, being a cleric can get us out of minor traffic violations.) Significantly, Ignatius also joined military service; however, he fought and lost in only one battle, the defense of Pamplona. But now even our own Armed Forces honor him as patron saint with his statue presiding over Camp Aguinaldo and every major military camp. More significantly, however, we are all familiar with the story of his conversion while convalescing from battle wounds. Thence commenced his agon. In celebration of his feast, we can perhaps recall and be thankful for his foresight in founding the Jesuit Order and his skill in nurturing it from 10 members to 1,000 before he died. In the metaphor that has come down to us from the 35th General Congregation, Ignatius lit a fire, little fires in the hearts of his companions in the University of Paris, companions who themselves spread out worldwide to start a conflagration.
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Doable Charter change

11:08 pm | Sunday, July 22nd, 2012 1 137 22
In my column last week I ended with the suggestion that before Congress can attempt to touch the substantive provisions of the Constitution, it should first find a way of settling how it will proceed in light of the vague amendatory provision of the Constitution. I also said that the opponents of Charter change are probably saying: Lets see you do it! If what Speaker Feliciano Belmonte and Senate President Juan Ponce Enrile are saying about Charter change is an indication that there is an atmosphere favoring Charter change in both the House and the Senate, there may be a way of doing it quickly. What I wrote about earlier as a fourth mode of Charter change might be the way. What is this fourth mode? But first, what are the currently discussed and acceptable modes? The first is Charter change through a constitutional convention. This entails electing a body of representatives distinct from Congress. This can be as expensive as supporting a second Congress. The nation is sharply divided about using it. It also opens up the entire Constitution for total overhaul, a prospect I myself do not favor. The second is through initiative and referendum. This was tried by Sigaw ng Bayan and the outcome was a disaster. The third is through Congress in joint session assembled but voting separately. Congress in joint session simply converts itself into a constituent assembly. This is how it was done under the 1935 Constitution, and it can still be done under the current Constitution if only the House and the Senate can agree to use it. But like a constitutional convention, it opens the entire Constitution for examination and revision.
What I would call the fourth mode is Charter change through Congress doing it as two houses in separate sessions. The two houses can support a surgical mode of change focused only on one amendment. How will this work? It will work pretty much like the legislative process. It can start in either house with a bill proposing a focused amendment. The house where the bill is filed threshes it out as it does legislative bills and concludes it with approval by a three-fourths vote of all the members. The approved bill is next sent to the other house for a similar processing. Once a constitutional amendment bill is approved by both houses, it can be submitted for ratification by the people during the next national election. But where in the Constitution does one find this mode? The elements of this mode are all in Article XVII. The fundamental principle is that what is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress provided it can be traced somehow to the powers of Congress. It is clear from Article XVII that the power to propose amendments can only be activated by Congress. The two houses of Congress are not required, as they were under the 1935 Constitution, to be in joint session. Hence, it is quite possible for the two houses to formulate amendments the way they formulate laws as they are where they are. Once one house is through with a draft, it is passed on to the other house for action. If there is a prohibition, it can come either from the letter of the Constitution (and there is none) or from the fundamental structure of our constitutional government. Thus, for instance, the implicit prohibition of joint voting comes from the bicameral structure of Congress. Where will President Aquino be in all of this? It is clear that the President is adamantly opposed to constitutional change now. But it is also clear from the text of the Constitution that the president has no role in the formulation of amendments except to the extent that he can influence the members of Congress, as President Aquino did in the recent impeachment exercise. His direct role will only be in the formulation of the budget needed for the plebiscite. But if Congress is truly determined to achieve constitutional change, budgetary problems can be solved. This brings us finally to the will and willingness of Congress to make the change. Are Senate President Enrile and House Speaker Belmonte speaking for their respective houses or only for themselves? Will all the members of the House, and not just the famous 188, click their heels and salute when Belmonte calls for Charter change, as they did when President Aquino called for impeachment? Can Enrile succeed in overcoming the reluctance of the Senate to play in the Charter change game? Can the two of them coopt the President into their plans? There are as yet no clear answers to these questions.
Read more: http://opinion.inquirer.net/33185/doable-charter-change#ixzz2R48N8gxY Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook
Doable Charter change

11:08 pm | Sunday, July 22nd, 2012 1 137 22
In my column last week I ended with the suggestion that before Congress can attempt to touch the substantive provisions of the Constitution, it should first find a way of settling how it will proceed in light of the vague amendatory provision of the Constitution. I also said that the opponents of Charter change are probably saying: Lets see you do it! If what Speaker Feliciano Belmonte and Senate President Juan Ponce Enrile are saying about Charter change is an indication that there is an atmosphere favoring Charter change in both the House and the Senate, there may be a way of doing it quickly. What I wrote about earlier as a fourth mode of Charter change might be the way. What is this fourth mode? But first, what are the currently discussed and acceptable modes? The first is Charter change through a constitutional convention. This entails electing a body of representatives distinct from Congress. This can be as expensive as supporting a second Congress. The nation is sharply divided about using it. It also opens up the entire Constitution for total overhaul, a prospect I myself do not favor. The second is through initiative and referendum. This was tried by Sigaw ng Bayan and the outcome was a disaster. The third is through Congress in joint session assembled but voting separately. Congress in joint session simply converts itself into a constituent assembly. This is how it was done under the 1935 Constitution, and it can still be done under the current Constitution if only the House and the Senate can agree to use it. But like a constitutional convention, it opens the entire Constitution for examination and revision. What I would call the fourth mode is Charter change through Congress doing it as two houses in separate sessions. The two houses can support a surgical mode of change focused only on one amendment. How will this work? It will work pretty much like the legislative process. It can start in either house with a bill proposing a focused amendment. The house where the bill is filed threshes it out as it does legislative bills and concludes it with approval
by a three-fourths vote of all the members. The approved bill is next sent to the other house for a similar processing. Once a constitutional amendment bill is approved by both houses, it can be submitted for ratification by the people during the next national election. But where in the Constitution does one find this mode? The elements of this mode are all in Article XVII. The fundamental principle is that what is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress provided it can be traced somehow to the powers of Congress. It is clear from Article XVII that the power to propose amendments can only be activated by Congress. The two houses of Congress are not required, as they were under the 1935 Constitution, to be in joint session. Hence, it is quite possible for the two houses to formulate amendments the way they formulate laws as they are where they are. Once one house is through with a draft, it is passed on to the other house for action. If there is a prohibition, it can come either from the letter of the Constitution (and there is none) or from the fundamental structure of our constitutional government. Thus, for instance, the implicit prohibition of joint voting comes from the bicameral structure of Congress. Where will President Aquino be in all of this? It is clear that the President is adamantly opposed to constitutional change now. But it is also clear from the text of the Constitution that the president has no role in the formulation of amendments except to the extent that he can influence the members of Congress, as President Aquino did in the recent impeachment exercise. His direct role will only be in the formulation of the budget needed for the plebiscite. But if Congress is truly determined to achieve constitutional change, budgetary problems can be solved. This brings us finally to the will and willingness of Congress to make the change. Are Senate President Enrile and House Speaker Belmonte speaking for their respective houses or only for themselves? Will all the members of the House, and not just the famous 188, click their heels and salute when Belmonte calls for Charter change, as they did when President Aquino called for impeachment? Can Enrile succeed in overcoming the reluctance of the Senate to play in the Charter change game? Can the two of them coopt the President into their plans? There are as yet no clear answers to these questions.
Read more: http://opinion.inquirer.net/33185/doable-charter-change#ixzz2R48N8gxY Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

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