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About five years ago Manila was already battling over billboards.  As I recall, however, the issue then was fairly simple. The campaign was not so much about what the billboards contained but about where they were placed and how they were built. If place and quality of construction are the only factors in issue, regulation can easily be justified.  The state is sufficiently armed with police power which enables it to protect the health and safety of the public.  Protection of life and limb is a perfectly valid basis for regulation or even prohibition.

The MMDA has echoed safety as its concern in the current controversy.  But the issue of decency is what triggered the current campaign.  That is more delicate.

Billboards, of course, are property and definitely property is subject to regulation. But billboards are also a form of speech.  So you will have to deal with the distinctions and sub-distinctions  related to the regulation of speech.  Billboards might contain political speech urging support for proposed law or a senatorial candidate.  They might also contain religious speech.  Political speech and religious speech enjoy the highest form of constitutional protection. 

The current billboard controversy is about commercial speech.  Commercial speech is speech whose object is to invite a commercial transaction such as a sale or a contract.  The billboards in issue are about gentlemen’s briefs and ladies’ bras. 

How is commercial speech regulated?  For many years jurisprudence did not consider commercial speech protected by the Constitution.  The reasoning was that the broad powers of the state to regulate business included an equally broad power to regulate commercial speech.  But now commercial advertising enjoys constitutional protection. Jurisprudence now says that  “society also may have a strong interest in the free flow of commercial information.  Even an individual advertisement, though entirely ‘commercial,’ may be of general public interest.  The facts of decided cases furnish illustrations:  . .  a manufacturer of artificial furs promotes his product as an alternative to the extinction by his competitors of fur-bearing mammals, . . . a domestic producer advertises his product as an alternative to imports that tend to deprive American residents of their jobs, . . .”

Nevertheless commercial speech has not been accorded the same level of protection as that given to what is called “core” speech, that is, political and religious speech.  Thus the need for standards of regulation specific for commercial speech. 

Regulation of commercial speech now sets down four requirements. First, the advertisement being regulated must not propagate what is false or illegal. Second, the regulation must be intended to protect a substantial governmental interest. Third, the regulation must directly advance the governmental interest.  And fourth, the regulation must not be more than necessary to serve the government interest.

 We do not see what is covered by the briefs and the bras, so we cannot tell whether what lies behind is false.  But is the advertisement illegal?  There are two categories of speech which are not constitutionally protected, namely libel and obscenity.  There is nothing libelous about the briefs and bras on exhibit.  But are they obscene? 

If you measure them by the accepted legal definition of obscenity, they are far from being obscene.  But there is a distant relative of obscenity which Philippine courts have used to pass judgment on certain forms of expression.  The most recent decision calls it “relative obscenity.”  Relative to what?  Relative to the age level of the viewers. 

This is what happened in the case involving a television preacher who was found guilty of having used inappropriate language in a television  program aired at a time when minors would be expected to be still awake and watching.  Should this standard be used for regulating billboards? 

What is notable about this standard is that it recognizes that there are materials  inappropriate for minors but not inappropriate for adults.  That, in fact, is the standard used by the Censorship Board.  Moreover, it is standard that is used for a type of expression the spread of which can conveniently be enclosed.   How would you regulate ads for briefs and bras intended for adults and which commercially are meant to be spread as widely as possible?  Should their effect on minors be the standard?

This, in fact, is also the problem confronted by those who wish to regulate sex in the internet.  They have not succeeded in formulating a law regulating the internet which will not deprive adults of what, in this our world, they have a right to see.

Should the law then use aesthetics or beauty  as standard? As the U.S. Supreme Court said, “It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.” Or, as a New York court echoed, “We accept beauty as a proper community objective, attainable through the use of police power.”

But this too is problematic?  Who is to judge whether a billboard projects beauty or ugliness? 

In the end, it is perhaps best to leave the matter to the civic sense of advertisers and advertising agencies.

18 July 2011

The first clarification that has come out is that it seems that the vehicles were not Pajeros after all.  Rather they were different types of utility vehicles.  Or, what were given were not vehicles at all but money for the purchase of unspecified vehicles. 

Nobody seems to be talking of ambulances or pick-up vehicles intended for social work.  Ambulances or pick-up vehicles would be easier to explain.  But whether the controversy be about vehicles or about money,  both the Congress and the CBCP will be looking for answers.  And even if it was all about money, the principles both the Senate and the CBCP will be looking into would be the same – was public money used for a constitutional purpose?

But first, a number of preliminaries.  The Senate is engaged in legislative investigation presumably “in aid of legislation.”  Soon the House will follow.  One question that might arise is whether bishops may be summoned, and not just invited, to such investigation.  We know that summons have to be obeyed under pain of contempt or even imprisonment.  As far as I know, however, only the President and justices of the Supreme Court may not be summoned to such investigations.  The reasons generally for this exception would be separation of powers and interdepartmental courtesy between equals. 

It seems to me that courtesy is also being extended to bishops by the Senate Committee.  They are simply being invited.  I see nothing to stop them from honoring the invitation.  I understand that some of them, if not all, would indeed be happy to appear and give their explanation to clear the air.  I do not believe that summons under pain of punishment would be necessary.

I have also been asked what the liability of bishops might be if the donations are found to be unconstitutional.  I am pretty certain that there would be no criminal liability.  There is no crime unless a penal law is violated. Criminal liability can only fall on PCSO officials.  Whether the liability can go higher than PCSO officials will depend partly on the role played by higher officials or on the applicability or not of the principle of command responsibility.

Now to more substantial matters.  What will the investigators be looking for?  As I wrote in an earlier piece, there is no absolute constitutional prohibition of the donation of public funds to religious persons or institutions.  Public money can be made available to religious persons or institutions if the use of the money (1) will be for a secular purpose, (2) will neither primarily inhibit nor advance religion, and (3) will not involve excessive government  entanglement with religion.

I believe, however, that the CBCP investigation and the congressional investigation will not have the same primary focus.  Of course, the CBCP will be interested in legality; but another focus, perhaps more important, will be on propriety and the effect the incidents can have on the primary work of the Church.  The congressional investigations for their part will avoid judgments on propriety but will be looking only into legality.  Hence, it is important to look into the meaning of the three-part requirement testing the validity of the use of public funds.

I must admit that except for the Aglipay case and the Manalo case, there is not much useful Philippine jurisprudence on the subject.  But American jurisprudence, especially on donations to sectarian educational institutions, can offer some very useful guidelines.

How does the three-part test work?  Let me just give one set of examples.  The lending of secular textbooks to parochial schools and the grant of construction aid for a science building to colleges have been allowed.  These were seen to be clearly for a secular purpose.  Of course such aid had the effect of lessening the financial burden of religious schools, but the benefit to the schools themselves was purely incidental and has not been allowed to be an obstacle to a legitimate legislative purpose.  But the grant of salary supplement to teachers of secular subjects in parochial schools has been disallowed on the argument that it would be difficult to assure that the teachers would not engage in religious teaching in an atmosphere where a primary object of the school was religion.  Moreover, it has been said that the need for state monitoring to insure that the aid would not be used for propagating religion has been seen as an invitation to prohibited entanglement of the state in religion.  (One might now ask if the vaguely purposed PCSO donations have already had the effect of inviting legislative and Ombudsman entanglement in religion.)

I must also admit that the various types of aid to sectarian schools,  especially to parochial schools, have spawned various controversies and the results have not always been easy to predict.  It is easier to justify donations to higher education which, even if sectarian, are not as predominantly religion-driven as parochial schools.  And this perhaps is the challenge which donations to the works of the church will have to face – how to separate the religious from the secular work, if they are separable at all.  The promotion of justice and of charitable works are very much an integral part of the mission of the Church today.

11 July 2011

For the moment public attention has shifted from the RH Bill and the proposed Divorce Bill.  Media attention is now on allegations made by the Philippine Charity Sweepstake that the previous administration had authorized the gift of Pajeros to various church leaders.  Issues of constitutionality have been raised as well as allegations of bribery to buy the support of church leaders for the past administration. What might be the problem? 

I will stay away from political allegations and make observations only about possible constitutional issues.

Already the provision that has been cited is Article VI, Section 29(2) which says: “No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.”  Another pertinent provision would be Article III, Section 5 which says “No law shall be made respecting an establishment of religion . . .” which is frequently cited as commanding separation of church and state. 

On the basis of these provisions the general question has been asked whether the use of public money may be authorized at all in a manner that might benefit religious persons or institutions.  It is not a question that is easily answered by either a Yes or No.  The answer that jurisprudence has given to the question is “It depends.”  It depends on what? It depends on the purpose and uses of the gift.

The example that immediately comes to mind is the early case of Aglipay vs Ruiz where the constitutionality of the use of government funds for the issuance of postage stamps  commemorating the 33^rd International Eucharistic Congress of the Catholic Church was challenged.  In upholding the validity of the government action Justice Laurel wrote that “while the issuance and sale of the stamps in question might be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government.”  He said that whatever benefit might have redounded to the Church was merely incidental to a legitimate government purpose.

Of a similar nature was the more recent expropriation of the birthplace of Felix Y. Manalo, the founder of the Iglesa ni Kristo,  for the purpose of preserving it as a historical landmark.  It was justified by saying that whatever benefit the Iglesia ni Kristo might reap from it was merely incidental to the public historical purpose.

Not knowing for what purpose the bishops were gifted with Pajeros, if indeed they were, I cannot say whether the gifts were constitutionally justifiable or not.  But if indeed there were such gifts and we want to find out whether they were constitutionally proper or not, are there jurisprudential norms which can be used for the purpose?  There are; but I do not think we can find them in the Aglipay case or the Manalo case.  I would use the norms found in decisions involving government aid to religious schools.

In essence, these decisions prescribe a three-part test for determining constitutionality.  First, does the grant of aid have a primary “secular legislative purpose”?  Second, will the aid have principal effects which neither advance nor inhibit religion?  Third, will the aid foster "an excessive government entanglement with religion."

How can we determine if the donation of Pajeros can pass these three-part tests?   We can only determine these by looking at the terms of the donation.  We can find these from the records of the PCSO.  The records will show whether the donations were for a secular purpose and whether they limited the uses to those which do not have the principal effect of advancing or inhibiting religion, and whether the needed supervision, if any, could involve excessive government entanglement with religion.

If indeed the Pajeros were given primarily for a legitimate secular purpose, such for instance as relieving poverty or promoting health, we may have to look at the suitability of the Pajeros for the declared purpose.  Next the people would want to know to what extent the gifts have actually been used for the declared purpose or if they have been used for other undeclared purposes such as advancing religion.  And if the government attempts to verify what they are being used for, would there arise a degree of undesirable entanglement of government with religion? 

All told, it would seem to me that if Congress decides to conduct investigations “in aid of legislation,”  as both the Senate and the House seem to be poised to do, things can turn out to be a very messy entanglement of state and religion.  I can see that Church authorities will have to think very carefully how to handle the PCSO revelations.  But I am not sure that the CBCP can command the bishops concerned what to do. Bishops answer directly to the Pope.

4 July 2011

The people who filed a civil case seeking to hold former President Gloria Macapagal Arroyo liable, under command responsibility, for the extrajudicial killings and disappearances during her watch must have known what chance of success they had.  Military commanders have been brought to Court for the same purpose, but no suit has succeeded.   But this is not because we have rejected command responsibility as law but rather because of failure to establish the necessary link between the commanders and the crime.

What is the doctrine of command responsibility? In its simplest terms, command responsibility means the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflicts. The concept itself is not new. Sun Tzu recognized it in his sixth century classic The Art of War, and the Holy Roman Empire applied it as early as 1474. Its more elaborate development, however, did not come until after World War II.

We can perhaps begin with the case closest to our country.  General Tomoyuki Yamashita was the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands. He was charged with violating the laws of war. The charge stated that Yamashita, “ [W]hile commander of armed forces of Japan at war with the United States of America and  its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the Philippines.”

Legal scholars and commentators who have studied the case are divided on the basis for the conviction of Yamashita. Did Yamashita have actual knowledge of the crimes or even ordered their commission? Or was he convicted on the basis of presumed constructive knowledge? There was no clear definition in the decision of what the commander’s state of mind had to be in order to justify conviction. It was not until later that the doctrine of command responsibility underwent more careful development.

The first important development was the codification of the doctrine in Protocol I to the Geneva Convention of 1977.  Article 87 provides that parties to a conflict should require military commanders to prevent, supervise and report breaches of the Geneva Conventions and Protocol by troops and others under their command and, where appropriate, initiate disciplinary action.

On the basis of the text of Protocol I the ICRC Commentary identified three conditions for command responsibility:

(i) the person to be held responsible must be the superior of the person or persons committing the breach of the convention ;

(ii) the superior must have known or had information which should have enabled him to conclude that a breach was being committed or was going to be committed ; and

(iii) the superior did not take all feasible measures within his powers to prevent the breach.

These requisites were later reflected in Article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia ("ICTY") which provides as follows:  "The fact that any of the . . . crimes within the jurisdiction of the Tribunal] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."

The Trial Chamber identified three elements for liability pursuant to Article 7(3): (i) the existence of a superior-subordinate relationship; (ii) that the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) that the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator.

 As things stand now, it is already a well established norm of customary and conventional law that "military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates." Under the incorporation principle of our Constitution whereby we “adopt the generally accepted principles of international law as part of the law of the land . . ,” this is now also domestic law.

As much is said by former Justice Carpio Morales in a concurring opinion in a 2010 case decided by the Supreme Court.  A categorical adoption of the doctrine of command responsibility, as Justice Carpio Morales said, will bring the writ of amparo cases to their logical conclusion.

27 June 2011

The Senate has approved the bill synchronizing the next ARRM elections with the 2013 national elections.  The bill had originated from the House of Representatives, but, even with the changes made by the Senate, the House re-approved it.  The President will certainly approve it.  He has been asking for it. 

The effect, once it becomes law, is that positions presently held by elective officials will become vacant and will have to be filled somehow.  The bill provides that the resulting vacancies should be filled by appointment by the President.  Thus it will be, unless the Supreme Court declares it unconstitutional.  What are the constitutional issues that might be brought to the Supreme Court?

I hear it being said that changing the date of election fixed by the current law will violate the autonomy of the Autonomous Region.  I doubt that such a challenge will prosper.  The current date of elections,  first Monday of August 2011, was determined neither by the Constitution nor by the Organic Act of the ARRM.  The current date was fixed by simple statute.  And since Congress has no authority to pass irrepealable laws, the current date may be changed by Congress – as in fact it has been changed in the past. 

Moreover, the Autonomous Region is not an independent sovereignty.  It is still within the sovereignty of the Republic  and the laws that govern it must conform with the Constitution of the Republic.  It is the intent of the Constitution, clearly apparent in the deliberations of the 1987 Constitution and affirmed by the Supreme Court in 1991, that local elections must be synchronized with the national elections.  Clearly ARRM elections are local elections.

The more delicate problem, however, is the manner of filling the resulting vacancies.  The law will create vacancies lasting for twenty-one months.  Both the House and the Senate have opted against giving to current incumbents the right to hold-over in the position.  Could Congress have opted for giving them the right to hold-over?     

It is said that allowing hold-over would violate the Constitution which says that the term of local officials is fixed at three years.  In my view, however, allowing hold-over will not amend the three year term.  It will only extend the tenure of the officials and the constitutional term will remain at three years.  Our Court has on a number of occasions pointed to the difference between term and tenure.  Constitutional term may be changed only by constitutional amendment whereas tenure can be shorter or longer than the term.  For instance, the death of an incumbent before the end of three years does not change the term.

Congress has opted not to allow hold-over by the current elected officials.  Instead, it has provided for filling the vacancies by appointment by the President. 

Again, the principle in the law on public officers is that when there is a vacancy and the law has not provided for the manner of filling the vacancy, the vacancy my be filled by appointment by the President.  What Congress has done is merely to affirm a residual power of the President to make the appointment.

Here again the provision is being criticized for giving to the President a free hand on whom to appoint.  But that is the nature of the appointing power.  It is the executive discretion to decide to whom to entrust the powers and duties of an office.

The discretion of the appointing authority may be limited by law as when the President is allowed to choose only from among a list prepared by another body.  This is the case in the appointment of judges and justices, including justices of the Supreme Court and the Ombudsman.  The President can choose only from among a list submitted by the Judicial and Bar Council.  (Not that the Judicial and Bar Council is immune from being influenced by the President!) Similarly, in the drafting of the Organic Law for Muslim Mindanao, Congress was supposed to be assisted by a consultative commission composed of representatives “appointed by the President from a list of nominees from multi-sectoral bodies.” 

In the synchronization bill there is an attempt to limit the appointing authority of the President by requiring that the President choose from among a list submitted by a consultative body.  But as I understand it, the consultative body itself will be formed by the President.  In effect, the President will, for all practical purposes, have a free hand in the choice of appointees.  Naturally, the opposition is bound to cry foul.  It is not clear how much the crying will do.

There is an important provision in the House version which the Senate chose to eliminate.  The House version prohibited those appointed by the President from running in the 2013 local elections for ARRM positions.  The Senate eliminated the prohibition but the House did not object.  Clearly, the majority in Congress is having its way.  So, what’s new?

13 June 2011

Today, June 6, 2011, the Ateneo Law School celebrates its Diamond Jubilee.  Allow me, therefore, to “boast” a little.

The Law School could have been much older than seventy-five had it not been for the vicissitudes of Jesuit history. Not that age is necessarily the measure of greatness, but grey hair can command some reverence.

The story begins when the Spanish colonial government felt the need for lawyers while Manila had neither legal courts nor schools of law to train lawyers.  The Audiencia, forced to fill the gap, exercised both criminal and civil justice – to nobody’s satisfaction.  The situation clamored for a solution.   Thus it was that in 1717 King Philip V of Spain established three chairs of law in Manila -- one for Canon Law,  another for Civil Law, and a third for Roman Law.  Unfortunately the chairs were not attached to any school and for eight years not a single student came to attend lectures.

Enter the Jesuits.  The Manila Audiencia turned to the existing Jesuit school, Colegio de San Ignacio, and there established law professorships.  Among the distinguished professors was the 27 year old Jesuit Father Pedro Murillo Velarde who arrived in Manila in 1723.  Father Murillo Velarde had studied law in the University of Granada and taught law at the world famous University of Salamanca.

Alas, the law school enterprise had to suffer the fate of the Jesuits.  In 1767 King Charles III Spain decreed the expulsion of Jesuits from all Spanish dominions.  The decree was carried out in the Philippines in 1768.  Thus ended the first Jesuit law school enterprise in Manila.

Worse yet, Pope Clement XIV, under strong pressure from the Bourbons of France, Spain, and Naples, suppressed the Society of Jesus.  The decree of suppression, however, needed the conformity of reigning monarchs.  Empress Catherine of Russia chose not to implement the suppression and Jesuits found refuge in her domain.

Jesuit resurrection came in 1814 when Pope Pius VII restored the Society of Jesus throughout the world.  Queen Isabella II of Spain followed  with the request for Jesuits to return to the Philippines.  In 1850, or 150 years ago last year, ten Jesuits arrived in Manila with instructions to evangelize the mountain tribes of Mindanao and other islands. Soon enough, however, they were persuaded to establish a school, Ateneo Municipal de Manila, which would later evolve into what is now the Ateneo de Manila University.

It was not, however, until June 6, 1936, by then under American Jesuits, that the Ateneo de Manila decided to open a school of law.

The first Dean of Law was Manuel Lim.  Legal luminaries were recruited as professors from the Supreme Court, the Court of Appeals, the legislature and from among private practitioners. Classes were held in the main building of the Ateneo between Dakota Street and Taft Avenue along Padre Faura.  In large airy classrooms students dug into Manresa, Sanchez Roman and Viada and into a gradually developing Philippine and American jurisprudence and other legal literature. 

Among the more prominent law school campus figures were Raul Manglapus, Ernesto Escaler and Felipe Buencamino who brought honor to the school by their debating prowess.  The first graduates all passed the Bar Examinations and the class valedictorian of the second batch of graduates, Claudio Teehankee, was the first Atenean to top the Bar examinations.  Since then, an enviable tradition of high performance in the Bar Examinations has continued.

Once more, however, law studies in the Ateneo had to be interrupted.  In 1941 the nation went to war.  Inter arma silent leges.

The entire Ateneo de Manila in Padre Faura was ravaged by war and the Law School did not reopen until 1948.  Classes were held in Quonset huts until a modern building, dominated by a statue of St. Thomas More, could be built.

Martial Law in 1972 did not interrupt the running of the school.  The participation of students in the struggle for the full restoration of democracy did not affect the high standards of academic excellence.

In 1978 the school moved to De la Costa Street in the Makati business district.  But as the number of students and the need for more room grew, another move had to be made.  In 1998 the school moved to its present location in Rockwell Center, Makati City.

As the school celebrates its 75^th year, what does it have to show? 

Its place of honor is now secure in the legal world of the Philippines.  Its students have been winning in moot court competitions both local and regional and have won the highly prestigious World Moot Court competition in Washington, D.C.  Its graduating students regularly reap the highest percentage of passing in Bar Examinations.  Many alumni and alumnae are highly respected in law practice, both traditional and “alternative,.”  They are also prominent in the world of legislation, and in local and national executive positions.  Its Human rights Center has won world recognition.  More and more alumni and alumnae are being appointed to the various levels of the judiciary, including the Supreme Court where two have become Chief Justice. 

All that is left is for the current administration, faculty and students of the school  to strive to surpass what has been achieved so far.  Ad maiorem Dei gloriam.

6 June 2011

If the debate on the RH Bill appears often frustrating and sometimes verging on the chaotic, it is largely because the participants in the debate frequently communicate along different levels of discourse thereby evading real engagement.  Many rarely make the necessary distinctions, nuancing and clarifications.  The result can be like listening to people arguing along different radio frequencies. 

But this is largely inevitable for at least two reasons: first, the disagreements can legitimately be along different topics and, second, there is no director who can manage the ordering of topics for discussion.  Thus the debate can mix basic constitutional issues, family planning, population control and national development issues, drug control or regulation, and even criminal process in a hodgepodge of confusion.

The debate on the constitutional level alone already offers abundant material for levels of disagreement.  The core issues arise from the non-establishment clause and the free exercise clause.

  The non-establishment clause, popularly but not always precisely referred to as separation of church and state, can mean different thing for different people.  The core meaning is that it prohibits the establishment of a state religion.  Historically for the Philippines, it means the denial to the Catholic church of the privileged position it occupied under Spanish sovereignty. Corollary to the cutting down of the privileged position of the Catholic church has been the recognition of the equal position of other religions. 

Beyond the prohibition of a state religion, non-establishment also means the prohibition of the use of public resources for the support or for the prohibition of religion.  But public resources may be used for a legitimate secular purpose even if incidental benefit to religion might arise.  The use of public money, for instance, for making safe contraceptive devises available to the poor falls under this aspect of the non-establishment clause.

Whichever way the RH debate is concluded, since the RH Bill’s avowed purpose is secular, it can be accommodated within the non-establishment clause.  But the more delicate issue is the free exercise clause. 

It means the freedom to act according to one’s religious belief and the freedom from being compelled to act contrary to one’s religious belief.  But there are those who argue that  the RH debate is not about religion but about ethics and natural law.  Even assuming that this is so, one must still ask, “Whose natural law? Whose ethical principles?” The constitution also protects “natural law” belief or disbelief, if not through the religion clause, then through the free speech clause, where speech is involved, and through the due process and equal protection clauses when action is involved.  But I myself hold that protected religion in the Constitution includes beliefs that are not traditionally theistic such as Buddhism, ethical culture and secular humanism. I view protected religion in the Constitution as encompassing beliefs and views which illuminate the "very ground of one's being" and which give life meaning and direction.

Another constitutional issue is the right to life.  It involves trying to identify when life begins and when there is contraception and when abortion.  The most hilarious argument I have heard on this is that contraception is attempted murder!  Whoever said that deserves a medal for I know not what.  Moreover, the debate on the right to life includes controversies about family planning, population control and their relation to national development.  Controversy on these subjects in the Philippines has had a long history involving the Catholic Church, government agencies, non-governmental organizations and international organizations.

Related to these are sex education as well as family life and family values.  But as one sociologist has written, “The charge is made that the RH bill will destroy the Filipino family. On the basis of more than 25 years of pastoral and social work in Payatas, and some seven years sponsoring natural family planning programs, I can say that the family is already at great risk—and not because of contraceptives.”

After the constitutional issues, there are also what I might call pharmacological issues.  There are claims, for instance, that there are contraceptive drugs in the market that cause abortion or are carcinogenic.  What I would like to see is an authoritative identification of the drugs that are said to be abortifacient or carcinogenic so that they can be withdrawn from the market or their use subjected to medical regulation.  So far I have seen only one drug identified as abortifacient, namely postinor.  This was withdrawn from the market by the Food and Drug and Administration.  But the identification of drugs claimed to be abortifacient or carcinogenic should be authoritative in a manner that is fair to drug manufacturers and to those who rely on them for legitimate medical purposes.

Finally, however, the fate of the RH Bill will be determined by Congress.  Already we can see that some members of Congress are hedging their bets.  The issues involved in the RH Bill are real issues.  But politicians are also thinking of the next election!  Some of them will probably heave a sigh of relief if the RH Bill disappears from the scene the way the impeachment of the Ombudsman disappeared from the scene.

30 May 2011

I have been following the debates on the RH Bill not just in the recent House sessions but practically since its start. In the process, because of what I have said and written, (where I have not joined the attack dogs against the RH Bill), I have been called a Judas by a high ranking cleric, I am considered a heretic in a wealthy barangay where some of whose members have urged that I should leave the Church (which is insane), and one of those who regularly hear my Mass in the Ateneo Chapel in Rockwell came to me disturbed by my position.  I feel therefore that I owe some explanation to those who listen to me or read my writings.

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.  Moreover, I am still considered a Catholic and Jesuit in good standing by my superiors, critics notwithstanding! 

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. 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 compel President Aquino, by whatever means, to prevent people from acting according to their religious belief.  As the Compendium on the Social Teaching of the Catholic Church 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.”

Third, 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.

Fourth, 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. Because of this, I and a number of my colleagues have offered ways of improving it and specifying areas that can be the subject of intelligent discussion.  (Yes, there are intelligent people in our country.)  For that purpose we jointly prepared and I published in my Inquirer column what we called “talking points” on the bill.

Fifth, specifically I advocate removal 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, among others, 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).

Sixth, I am pleased that the bill reiterates the prohibition of abortion as an assault against the right to life.  Abortifacient pills and devises, if there are any in the market, should be banned by the Food and Drug Administration.  But whether or not there are such is a question of scientific fact of which I am no judge. 

Seventh, I hold that there already is abortion any time a fertilized ovum is expelled. The Constitution commands that the life of the unborn be protected “from conception.” For me this means that sacred life begins at fertilization and not at implantation.

Eight, it has already been pointed out that the obligation of employers with regard to the sexual and reproductive health of employees is already dealt with in the Labor Code.  If the provision needs improvement or nuancing, let it be done through an examination of the Labor Code provision.

Ninth, there are many valuable points in the bill’s Declaration of Policy and Guiding Principles which can serve the welfare of the nation and especially of 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.

Tenth, I hold that public money may be spent for the promotion of reproductive health in ways that do not violate the Constitution.  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.

Eleventh, I leave the debate on population control to sociologists.

Finally, I am happy that the CBCP has disowned the self-destructive views of some clerics.

22 May 2011

Last Friday, May 6, the resignation of Merceditas Gutierrez as Ombudsman took effect.  After she made her announcement, the reactions were varied.  The Senate President felt relieved for various reasons.  An impeachment trial would take up much of the Senate’s time and money and at the expense of other important matters the Senate has to attend to.  Some of those who had pushed for her impeachment were disappointed but for different reasons.  Some thought that she should have stayed on to fight her battle in the Senate while others missed the opportunity of gaining political capital from the drama of an impeachment trial.  Some also saw humor in the fact that the Senators would not be able to wear the robes they had ordered for the occasion.  (I recall that on the first day of the Estrada impeachment trial the Senators wore robes.  Realizing perhaps that the spectacle would  border on the ridiculous, they soon enough gave up the idea.)

Now that she has resigned, what else can be done?  The clear law on the subject is that “judgment in cases of impeachment shall not extend further than the removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.”  Since, however, there was no impeachment trial and Ms. Gutierrez has chosen to be just another citizen, with greater reason, whatever it was that she was charged with in the impeachment case can be brought up in a criminal or administrative case.

I cannot pretend to know what her reasons were for deciding to avoid impeachment through resignation and face prosecution instead.  I can see some good reason in favor of her choice.  For one, in a criminal prosecution proof beyond reasonable doubt is needed for conviction.  In an impeachment trial, the quantum of proof needed for conviction is not very clear and can be colored very much by political consideration.  For another, live television coverage is not allowed in criminal prosecution; hence she would not be a victim of political grandstanding which can take place in an impeachment trial.

An interesting question, however, is whether the impeachment trial can still proceed even after her resignation.  There is opinion to the effect that, since the possible penalties in an impeachment are removal and disqualification, impeachment can still proceed for the purpose of the penalty of disqualification.  I recall that there is American state jurisprudence to this effect; but there are good reasons for not following this opinion for our purposes.  For one, an essential requisite for a person to be made subject to impeachment is that he or she must be an impeachable officer under the Constitution. So strict is this requirement that the Court has ruled that Congress may not by law add any more to the constitutional list of impeachable officers. Having already resigned from an constitutionally impeachable office, Ms. Gutierrez is no longer an impeachable officer. Another reason is that disqualification can also be achieved through criminal or administrative process.  Trying to obtain a disqualification is not worth all the trouble and expense that it will entail for Congress.  (Allowing an opportunity for the Senators to wear their red robes is not reason enough for the trouble!)

Without wishing to make any judgment on the performance of Ms Gutierrez or of past Ombudsmen, I suggest that the recent experience of trying to impeach an Ombudsman should be a lesson for those who have the responsibility of choosing who the next Ombudsman will be.  The responsibility belongs to the Judicial and Bar Council and, of course, to the President.  They should reread what the qualities should be of the person to whom the responsibility is to be given.  I suggest a reading of the deliberations of the Constitutional Commission on the office of Ombudsman.

Beyond the academic and experience qualifications required, the most important is what Section 8, Article XI calls “recognized probity and independence.”  When the sponsor of this provision in the Constitutional Commission was describing what the qualities of the Ombudsman should be, he practically said that he should not only be a saint but should also be known as such.  He should be one who can command the confidence and respect of everyone.  Let’s hope the JBC and the President will give us one such.

8 May 2011

There is a bill already approved by the House of Representatives but still pending in the Senate which aims to synchronize the ARRM elections with the national elections.  Under the current law, the term of the incumbent local officials of the ARRM will end on September 30, 2011.  The election of the next officials is currently set for Monday of August, 2011.  If the current bill is approved, the elections will not be held on the first Monday of August, 2011 but in May 2013.  Hence, there would be a vacancy in the ARRM offices from September 30, 2011 to June 30, 2013 – or a period of twenty-one months.  How should these vacancies be filled?

Before answering that question, a prior question need be answered.  Why synchronize the ARRM elections with the national elections?  One big reason being used, I understand, is economy.  But synchronization also finds support in the desire of the Transitory Provisions of the 1987 Constitution that local elections be synchronized with national elections.  This desire is not explicitly stated but it can be deduced from Section 2 and 5 of the Transitory Provisions.  And since the ARRM elections are local elections, it stands to reason that they should be synchronized with other local elections.  Moreover, I think that there is a reason for synchronization peculiar to the ARRM.  The absence of synchronization in ARRM gives undue advantage to the powerful lords of the area to control the results of local elections.  Synchronization will have the effect of diffusing the energies of the local lords since they would be attending to both local and national elections.  Whether these reasons are enough to convince the Senate to go along with the House bill remains to be seen.

To come back now to the matter of filling the vacancies, the House bill rejected the option of filling the twenty-one month hiatus by allowing the incumbents to hold over until their successors are elected.  Apparently the rejection of the hold-over option was based on the 1991 case of Osmeña v. Comelec which had held that hold over would change the three year term set by the Constitution and therefore would be unconstitutional.  I doubt, however, that the current Court would hold the same position considering that more recent decisions have made a distinction between term and tenure.  The term of local officials is fixed by law at three years and may be changed only by constitutional amendment.  Tenure, however, which is the actual period an official holds office, can be shorter or longer than the term.

At any rate, the rejection of the hold-over option may have been based on other reasons also.  The House may have considered that a hold over of twenty-one months would be too long.  Indeed, in instances where hold over has been allowed, the periods involved were usually short temporary vacancies in an office.  The House may have reasoned that, if there is to be a prolonged hold-over, there must be a way of renewing the public mandate.  Hence, the House opted for appointment as the vehicle for filling the vacancy by a new mandate.

The House bill proposes that the vacancies necessitated by the synchronization should be filled by appointment by the President.  The only limitation imposed on the President is that the appointees should possess the legal qualifications for the office.  As to the appointees themselves, they are made ineligible to run as candidates for elective positions in the next regular ARRM elections.

The affirmation of the power of the President to appoint officers to an elective position is based on necessity of public service. In the 1991 case of Menzon v. Petilla, the Court affirmed that such power can be assumed by the President. But the issue in the Menzon case was whether the temporary occupant of the office was entitled to compensation.  In the end the Court concluded that he was, at least as a de facto officer.  It was not a clear affirmation of a power of the President to fill temporary vacancies in elective positions by appointment without statutory authorization..

I suggest that the better model for empowering the President to fill temporary vacancies by appointment is Section 7 of the Transitory Provisions of the 1987 Constitution.  Said Section 7 authorized the President to fill by appointment the seats reserved for sectoral representatives -- but only from a list of nominees prepared by various sectors.  A role thus was given to the concerned sectors in filling vacancies.  A similar limitation on the choice to be made by the President can be included in the synchronization law.  Unless such limitation on the President’s discretion is placed, he could very well fill the offices with his party mates.  Imposing such limitation will make the appointment closer to a democratic process.

25 April 2011

When conducting a retreat for law school seniors and asking them to contemplate the trials of Jesus prior to his crucifixion, I tell them not to be distracted by what they know about criminal due process.  There was no due process there.  I ask them to concentrate instead on how Jesus hides his divinity and refuses to use it in his defense and on the important question  of why he is undergoing his ignominious trial.  But let us look at the trials themselves.

There were two trials, one before the religious leaders and the other before Pontius Pilate, the Roman Governor.

The trial before the religious leaders was by a “kangaroo court,” one in which there was already a pre-determined verdict.  The judges had wanted a verdict that would serve as a basis for asking for his death.  They themselves did not claim the authority to impose the death penalty.  But they wanted him dead and they wanted a verdict that would convince the Roman rulers to sentence him to death.  But Jesus maintained his silence. 

He finally broke his silence when his judges decided to place him under solemn oath. "I order you to tell us under oath before the living God whether you are the Messiah, the Son of God."  When Matthew wrote his gospel, the people had already long known that that was what he was.  The trial in Matthew reaches its climax when Jesus proclaims to the world who He was. "You have said so. But I tell you: From now on you will see 'the Son of Man seated at the right hand of the Power' and 'coming on the clouds of heaven.'"

We can imagine how those same religious leaders who were his judges must have felt when finally they appeared for judgment before “the Son of man seated at the right hand of the Power.”

Meanwhile, Peter the Rock melted before those who had accused him of being a follower of Jesus.  Three times he denied any connection with Jesus.  But he repented and “wept bitterly.”  We see in Peter the saints and the sinners that make up the community of the Church.

It is salutary to reflect on how Peter and Judas dealt with their betrayal of Jesus.  Both recognized the innocence of Jesus.  But on the one hand Peter repented, whereas Judas, while remorseful, despaired.

Next came the trial before Pilate where the religious leaders decided to have Jesus brought.  The trial went through a number of phases. Jesus is first interrogated.  Pilate asks him if he is the King of  the Jews.  An affirmation would be a political offense. Jesus answers in an ambiguous manner.  “As you say.”  What he meant was that He was, but not in the sense Pilate understood him to be claiming.

Seeing the flimsiness of the case against Jesus, Pilate looks for a way of satisfying the people’s taste for blood and escaping guilt for the death of an innocent man, especially after he receives a message from his wife not to trifle with the life of an innocent man.  Thus Pilate next offers Barrabas to pacify the crowd.  The crowd rejects the offer.  When asked what should be done with Jesus, the crowd asks for crucifixion.  When further asked what crime Jesus had committed, they mention none, but, egged on by religious leaders, only repeat their demand for crucifixion.  The crowd thereby affirms his innocence.

Finally, the final phase.  Pilate is convinced that Jesus is innocent.  He ceremonially washes his hands as his way of disowning what would happen to Jesus.  The religious leaders too had done something similar when Judas attempted to return the thirty pieces of silver.  They told Judas, "What is that to us? Look to it yourself."  So to, Pilate said, “See to it yourselves.”  The religious leaders and Pilate both refuse to own their guilt.  But “the whole people,” crowd and leaders, accept responsibility. "His blood be upon us and upon our children."

How is this cry for blood to be interpreted?  It is a delicate question which has affected the attitude of generation after generation of Christians towards the Jews.  Is the cry only for those who were there at the trial or also for those who would follow them?  But as one commentator writes, “There is no foundation in the Matthean formulation for the lamentable extension of the phrase in the Christian tradition to encompass all subsequent generation of the Jewish people to the end of time.”

17 April 2011

Prenote.  To my critics who accuse me of heretical eclecticism, let me just say that, of course, I accept the teaching of the Pope on contraception and abortion.  But the other part of what I believe, often ignored by my critics, is that the Church also teaches us to respect the belief of others and not to impose our beliefs on the unwilling nor prevent them from acting according to their belief when what they do is not against the law or public welfare. Verbum satis sapienti.

* * * * *

We have never succeeded in convicting a person on impeachment.  The closest we had to completing an impeachment proceeding was when, in the impeachment of Joseph Estrada, Congress reached the trial stage.  But the trial was not completed. 

The impeachment move against the Ombudsman has made much progress. It is getting close to the trial stage. Now there is also talk of impeaching justices of the Supreme Court. What will the final outcome be? 

In this piece I propose to approach impeachment from the academic point of view. The academic approach, after all, is part of real life. I have always believed that part of fidelity to the rule of law must be recognition and awareness of the academic underpinnings of existing law.

Impeachment is of British origin. Ironically, however, in the British system neither the king nor the Prime Minister is subject to impeachment. Not the king, because the only way of getting rid of an unwanted monarch is by revolution or assassination. Not the Prime Minister, because the Prime Minister is essentially a legislative creature who may at any time be replaced by parliament through a no confidence vote. The reasons for ouster of a Prime Minister theoretically can be as trivial as the quality of his sartorial preferences.

When the American Founding Fathers were formulating the Constitution, they had no intention of setting up a monarch who could rule for life. But they did want to  give the chief executive security of tenure. At the same time, however, the Founders were aware that, human nature being what it is, it might become necessary to rid the presidency of one who has been found unworthy of the office. They were, moreover, also aware that any president would have innumerable enemies who would only be too glad to oust him. What the Founders did therefore was to make the president virtually immune from legal action but at the same time removable in extreme cases when the only way of protecting the public is by removing him. The method set up was the impeachment process.

This is what we have now and we apply it to key officials including the Ombudsman and Supreme Court justices.  Removal can only be based on the grounds of "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."

The object of the process is not to punish but only to remove a person from office. As justice Storey put it in his commentary on the Constitution, impeachment is "a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity." Put differently, removal and disqualification are the only punishments that can be imposed upon conviction on impeachment. Criminal and civil liability can follow after the officer has been removed by impeachment. Prosecution after impeachment does not constitute double jeopardy.

The present Constitution has expanded the list of impeachable offenses to include "graft and corruption" and "betrayal of public trust." The mention of these two categories might give the impression that impeachment has been trivialized. But the way the provision is worded is significant. It enumerates the grounds for impeachment as "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." The word "other" is significant. The rule in the interpretation of laws is that when the law makes an enumeration of specific objects and follows it with "other" unspecified objects, those unspecified objects must be of the same nature as those specified. Thus, for "graft and corruption" and "betrayal of public trust" to be grounds for impeachment, their concrete manner of commission must be of the same severity as "treason" and "bribery." These offenses strike at the very heart of the life of the nation.

As applied to the Ombudsman, has she committed offenses which are of this degree of severity?  Not a few think she has; but the final answer to the question of course is a matter of evidence.

And who is to decide if she has or has not? The answer underlines the non-judicial but political character of impeachment. The decision will not be arrived at in the atmosphere of cold neutrality of judicial courts. The decision will be arrived at by a partisan body, Congress, whose decisions in crucial matters are often dictated by considerations other than legality.

The nation will be watching what the House of Representatives will say about the charges against  the Ombudsman.  I expect the House to vote quickly for prosecution. The House will need only a vote of one third of all the Members.  When the case goes to the Senate, conviction will need the vote of two thirds of all the Members. How will the Senate vote? Whether in the House or in the Senate, political considerations can dictate the direction of the vote.

21 March 2011

Prenote.  To my critics who accuse me of heretical eclecticism, let me just say that, of course, I accept the teaching of the Pope on contraception and abortion.  But the other part of what I believe, often ignored by my critics, is that the Church also teaches us to respect the belief of others and not to impose our beliefs on the unwilling nor prevent them from acting according to their belief. Verbum satis sapienti.

* * * * *

We have never succeeded in convicting a person on impeachment.  The closest we had to completing an impeachment proceeding was when, in the impeachment of Joseph Estrada, Congress reached the trial stage.  But the trial was not completed. 

The impeachment move against the Ombudsman has made much progress. It is getting close to the trial stage. Now there is also talk of impeaching justices of the Supreme Court. What will the final outcome be? 

In this piece I propose to approach impeachment from the academic point of view. The academic approach, after all, is part of real life. I have always believed that part of fidelity to the rule of law must be recognition and awareness of the academic underpinnings of existing law.

Impeachment is of British origin. Ironically, however, in the British system neither the king nor the Prime Minister is subject to impeachment. Not the king, because the only way of getting rid of an unwanted monarch is by revolution or assassination. Not the Prime Minister, because the Prime Minister is essentially a legislative creature who may at any time be replaced by parliament through a no confidence vote. The reasons for ouster of a Prime Minister theoretically can be as trivial as the quality of his sartorial preferences.

When the American Founding Fathers were formulating the Constitution, they had no intention of setting up a monarch who could rule for life. But they did want to  give the chief executive security of tenure. At the same time, however, the Founders were aware that, human nature being what it is, it might become necessary to rid the presidency of one who has been found unworthy of the office. They were, moreover, also aware that any president would have innumerable enemies who would only be too glad to oust him. What the Founders did therefore was to make the president virtually immune from legal action but at the same time removable in extreme cases when the only way of protecting the public is by removing him. The method set up was the impeachment process.

This is what we have now and we apply it to key officials including the Ombudsman and Supreme Court justices.  Removal can only be based on the grounds of "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."

The object of the process is not to punish but only to remove a person from office. As justice Storey put it in his commentary on the Constitution, impeachment is "a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity." Put differently, removal and disqualification are the only punishments that can be imposed upon conviction on impeachment. Criminal and civil liability can follow after the officer has been removed by impeachment. Prosecution after impeachment does not constitute double jeopardy.

The present Constitution has expanded the list of impeachable offenses to include "graft and corruption" and "betrayal of public trust." The mention of these two categories might give the impression that impeachment has been trivialized. But the way the provision is worded is significant. It enumerates the grounds for impeachment as "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." The word "other" is significant. The rule in the interpretation of laws is that when the law makes an enumeration of specific objects and follows it with "other" unspecified objects, those unspecified objects must be of the same nature as those specified. Thus, for "graft and corruption" and "betrayal of public trust" to be grounds for impeachment, their concrete manner of commission must be of the same severity as "treason" and "bribery." These offenses strike at the very heart of the life of the nation.

As applied to the Ombudsman, has she committed offenses which are of this degree of severity?  Not a few think she has; but the final answer to the question of course is a matter of evidence.

And who is to decide if she has or has not? The answer underlines the non-judicial but political character of impeachment. The decision will not be arrived at in the atmosphere of cold neutrality of judicial courts. The decision will be arrived at by a partisan body, Congress, whose decisions in crucial matters are often dictated by considerations other than legality.

The nation will be watching what the House of Representatives will say about the charges against  the Ombudsman.  I expect the House to vote quickly for prosecution. The House will need only a vote of one third of all the Members.  When the case goes to the Senate, conviction will need the vote of two thirds of all the Members. How will the Senate vote? Whether in the House or in the Senate, political considerations can dictate the direction of the vote.

21 March 2011