Saturday, April 30, 2011


The controversy over the RH Bill is becoming or has become a war of religions. Pitted against each other are, on the one hand, “good” Catholics, and, on the other, the Iglesia ni Kristo, Protestant denominations, Muslims and “bad” Catholics. By “bad Catholics” I mean the kind of Catholics whom “good” priests supported by their “good” bishop consider unworthy to enter a Catholic church. And since I myself do not see the variousissues as clear black against white, I have been urged by some “good” Catholics to leave the church before I say anything more on the issue. It is a sad day for the Catholic church which I love.
When I heard about the priest who told those who accept the RH Bill to leave the church, two passages from the New Testament came to mind. I refer, first, to the driving of money changers out of the temple premises. Jesus fashioned a whip out of chords, and drove the “bad guys” out of the premises. But, unlike the driven out “bad Catholics,” the “bad guys” in the New Testament story were not there to pray; they were there to make money. And they were not even in the inner portion of the Temple. Jesus had every right to say that his Father’s house was not meant to be a market place.
Another incident is the story of the woman caught in adultery. She was dragged before Our Lord by “good” people. And the Mosaic law was clear: a woman caught in adultery must be stoned. “Let him who has no sin cast the first stone,” Jesus said. And he bent down to scribble on the ground, to scribble perhaps the names of the accusers. One by one the “good” guys slinked away.
The moral of the story is, which I like to tell those who ask me why I continue to teach “bad guys” in the Ateneo Law School: Christ came to save sinners, even defenders of the RH Bill.
The debate on the RH Bill started in 2008, or perhaps even earlier, but it was interrupted by concern about the coming elections. When the debate resumed in 2009, it was difficult for many, myself included, to be totally for or totally against the RH Bill because it had many facets. I believe that the complexity of the issues presented by the bill is the reason that, while some priests and bishops have been vocal against the bill, others have largely remained silent. And I often wonder how many of them have bothered to study the Bill.
Since 2009, the proposal in the House has undergone some very substantial changes. The original proponents of the Bill have agreed to tone down or eliminate some of the provisions being objected to. Let me enumerate some.
The original bill said that local government units should “give priority to family planning work.” What is now being proposed is that local government units will “help implement this Act.”
With regard to mandatory age-appropriate reproductive health and sexuality education, the proposal now says “Parents shall have the option of not allowing their minor children to attend classes pertaining to Reproductive Health and Sexuality Education.” Moreover, the provision on the ideal family size is being deleted.
Deleted also is the section on employers’ responsibility on reproductive health which merely amplifies what is already provided for in the Labor Code.
Likewise deleted was the specific enumeration of allowable contraceptive devices and methods. Instead, the proposal is for the allowance of contraceptive methods that are in general safe and legal. This would mean a prohibition of contraceptive methods that are abortifacient once they have been scientifically identified. This is what the government did after Postinor was identified as abortifacient.
Will these proposed changes, even if all of them become part of the law, put an end to the debate? Definitely it will not. Very much at the heart of the debate is the teaching on methods of family planning. I do not see the Catholic Church or the other churches yielding on this issue. In the light of this insoluble division, how then should the debate be conducted?
The Catholic Social Teaching on this may be found in what the Second Plenary Council of the Philippines (PCP II) under the CBCP states: “The public defense of gospel values, especially when carried into the arena of public policy formulation, whether through the advocacy of lay leaders or the moral suasion by pastors, is not without limit. . . It needs emphasizing, that, although pastors have the liberty to participate in policy debate and formulation, that liberty must not be exercised to the detriment of the religious freedom of non-communicants, or even of dissenting communicants. This is a clear implication of Vatican II’s Dignitatis humanae. This is not just a matter of prudence; it is a matter of justice.”
Of special application to a country where Catholics are a majority is the teaching of the Compendium on the Social Teaching of the Church which says: “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.” This, too, is the teaching of Dignitatis Humanae. (No. 6)
2 May 2011

Saturday, April 23, 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 OsmeƱa 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

Saturday, April 16, 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