Saturday, July 30, 2011


When the report on the final death knell on the Truth Commission was announced by the Supreme Court, there was no lamentation in the Palace. Secretary Lacierda simply said in a matter of fact way that the Palace accepted the decision. No one was surprised by such reaction. The main reason for the issuance of Executive No. 1 creating the Truth Commission, after all, was the obvious Palace perception that the Office of the Ombudsman could not be relied upon to pursue a campaign of walang corrup, walang mahirap. With the departure of the former Ombudsman, the Truth Commission became obviously unnecessary.
As a matter of fact, moreover, under the terms of the original Supreme Court decision, the Palace could have easily amended the provisions of Executive Order to make it conform with the demands of constitutionality. The cardinal sin of the executive order was that in the Court’s judgment it violated the requirements of equal protection. As the Court said: “Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) . . . The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that it does not apply equally to all members of the same class such that the intent of singling out the ‘previous administration’ as its sole object makes the PTC an ‘adventure in partisan hostility.’” Thus the Court also agreed with the contention that “in order to be accorded with validity, the commission must also cover reports of graft and corruption in virtually all administrations previous to that of former President Arroyo.”
The Court, however, concluded: “Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution.”
The Palace, however, chose to let the Truth Commission die. My impression is that the government’s motion for reconsideration was filed half-heartedly. Hence, the defeat was unlamented. Why so? Because, aside from the fact that there would be a new Ombudsman, the decision was in fact an affirmation of the legality of the Palace’s determination to pursue a campaign against graft and corruption.
The decision, very importantly, was and is an affirmation of the elastic powers of the presidency. This affirmation is based on often ignored portion of Article VII, Section 17 of the Constitution which says that the President “shall ensure that the laws be faithfully executed.” This is the same phrase on which President Cory Aquino relied when she denied the request of former President Marcos to return from his exile. She contended that his return could disturb the legal order of the nation. The Court affirmed her saying that “although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of ‘executive power.’ Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.”
Echoing this earlier decision, the Truth Commission decision said: “Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed.”
The Truth Commission was also challenged on the ground that it was a usurpation of the powers of the Ombudsman and of the Justice Department. On this point the Court said: “Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices.”
When one considers these strong affirmations of the scope of executive power, one can see why President Aquino, in his second SONA, was so confident in his determination to pursue of his administration’s campaign to unmask and punish those who have committed graft and corruption. In fact, the ongoing investigations of the PCSO scandal and the election, fertilizer and ZTE scandals are in fact, without announcing it in so many words, an implementation of the goals of the Truth Commission. And no one is complaining about violation of equal protection. Indeed there is no discrimination; only prioritization.
1 August 2011

Saturday, July 23, 2011


For beginning to understand the controversy over the South China Sea, a helpful backgrounder is a book by Rodolfo C. Severino, Where in the World is the Philippines? Chapter 5 of the book is about the South China Sea controversy. But if you are looking for a solution to the problem, you probably will not find it there. Nevertheless let us see the beginning of the story in brief.
During the Second World War Japan had occupied the Spratly Islands. From there Japan had launched its attacks against the countries in the region. If Japan had won the war, Japan would be a major actor in the contest over the South China Sea and would probably be lording it over the rest. But Japan lost.
The Treaty of Peace of 1951 ending the war was signed in San Francisco by forty-nine nations. By this treaty Japan renounced all claim over the Spratly Islands and the Paracel Islands. The Philippines and Vietnam were parties to the treaty, but neither Mainland China nor Taiwan was.
The Treaty, however, is no help to the settling of the current controversy. The Treaty does not say which country should have a legal claim over the island. A subsequent treaty between Japan and Taipei and a still later Treaty of Peace and Friendship between Japan and Beijing do not touch on the territorial issue either. Thus the squabbling remains until today.
How did the Philippines get involved? It started with Tomas Cloma, a Filipino educator and entrepreneur, who had planned to open an ice plant and cannery in one of the islands. But Cloma went beyond his interest in an ice plant and a cannery. In 1956 he sent a private training ship on an expedition to the islands. Subsequently he released a “Notice to the Whole World” claiming a vast area of the South China Sea which included the Kalayaan islands. He also sent a letter to the Secretary of Foreign Affairs of the Philippines, Carlos P. Garcia, that with a crew of about fifty persons he was undertaking a survey and occupation of an area outside of Philippine territory and belonging to no one. Shortly thereafter he called the area “Freedomland.”
Cloma stressed that the claim had not been made by the Philippines but was being made by himself as A Filipino citizen. He followed this with what may be called a “constitution” for the area prescribing a form of government and incorporating the Universal Declaration of Human Rights and the Philippine Bill of Rights. By these acts he said that he hoped to deter other nations from claiming the territory.
Although the Philippine government under Ramon Magsaysay was taking all this as a “comic opera,” it was serious enough to provoke protests from Taiwan, Beijing and Vietnam. Beijing even took naval action against the Cloma activities. And when Cloma wrote a letter to the Philippine Secretary of Foreign Affairs reporting Taiwanese activities on the area, the Secretary in 1956 expressed the view that the islands were res nullius. He said that the Philippine government considered the islands to be under the de facto trusteeship of the Allied Powers since there had been no territorial settlement by those same Powers.
The winds of change in the Philippines began in 1971 under President Marcos. The government expressed concern about the security implications of what was happening in the area. Taiwanese forces were reported to have occupied some islands.
While maintaining that the area was res nullius and that no state could introduce troops into the area without the consent of the Allied forces, the Philippine government nevertheless maintained that such res nullius could be acquired by “occupation and effective administration.” Marcos in fact announced that the Philippine government was in “occupation and effective administration” of some islands. Naturally protests came from Taipei and Beijing.
Things became more complicated in 1971 when Secretary of Foreign Affairs Carlos P. Romulo recommended more development of the area and the augmentation of the military forces already deployed there. Moreover, the Foreign Affairs Undersecretary had asserted in the Seabed Committee of the UN that the Philippines was in effective occupation of Kalayaan Islands.
Protest, however, came not just from China and Taipei but also from within. A former Philippine diplomat wrote to President Marcos claiming that what the government was doing contradicted a commitment made by Secretary Garcia in 1957 that the Philippines recognized the Free Territory of Freedomland.
This internal conflict, however, seemed to find a solution in a “Deed of Assignment and Waiver” of all rights won by Cloma over the islands through development and effective occupation. But biographers of Cloma claimed that the Deed had been executed under duress and in exchange for the release of the aging Cloma after 57 days in detention in Camp Crame during Martial Law. Thus, in the freer atmosphere after Edsa I, Tomas Cloma & Associates submitted a claim to President Cory Aquino asking for reimbursement of expenses incurred from 1947 to 1974 in the “exploration, occupation, development, administration, organization and settlement of Freedomland.” What this seems to mean is that Tomas Cloma & Associates have already affirmed that a transfer of rights had indeed been made to the Philippine government.
But what did Tomas Cloma & Associates transfer? China, Taiwan and Vietnam are asserting that Nemo dat quod non habet.
Only the UN can settle this controversy authoritatively; but no one wants to accompany the Philippines to the UN.
25 July 2011

Saturday, July 16, 2011


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

Saturday, July 9, 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

Saturday, July 2, 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 33rd 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