Saturday, May 28, 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

Sunday, May 22, 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

Saturday, May 7, 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