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

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