NON DUEL AT CEBU PROVINCIAL CAPITOL

Non-Duel at the Cebu Provincial Capitol

 Joaquin G. Bernas, S.J.

When the big guns of the opposition group UNA visited the embattled Governor Garcia, one would have expected them to make noisy political capital not only of the suspension of the Governor but also of the closure of the television station and of the newspaper office.  But nothing of the sort seem to have happened.  They seemed simply to have projected themselves as the good guys performing a Christian act of mercy by visiting someone in prison -– even if self-imprisoned.  The Palace voice in turn also played a good guy role saying with a smile that nothing will be done on Garcia until after the holidays. 

What is really happening?  Should we attribute this seemingly friendly spirit to the Christmas atmosphere?  Or is this just the calm before the storm?

Perhaps it is understandable that nothing vigorous was said by the UNA leaders about the suspension of the Governor.  Presumably they just wanted to project their respect for the legal process because the Governor has already brought her suspension to the Court of Appeals.

But what about the closure of the television and ratio stations? Padlocking a television station and a newspaper publishing office is not an ordinary occurrence in a democracy.  Such action takes place either during martial law or in the heat of political contest.  It is normally regarded as an act of prior restraint and therefore presumed to be unconstitutional.  Could it be that UNA  has accepted Acting Governor Magpale’s explanation?

The Acting Governor has justified the closure by saying that the object of the closure was not to restrain speech or communication but to review the operation of the outfits.  In other words her defense is the jurisprudential distinction between content-neutral regulations, i.e., concerned not with the message but merely with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards; and a content-based restraint or censorship, i.e., the restriction based on the subject matter of the utterance or speech.

Content-based laws or regulations are generally treated as more suspect than content-neutral laws because of judicial concern about its effect on freedom of expression. Jurisprudence requires that content based regulation be justified by the existence of a grave and present danger of an evil which the state has the right to prevent.  Content-neutral regulations of speech or of conduct that may amount to speech are subject to lesser but still heightened scrutiny. 

This distinction between content based regulation of speech and content neutral regulation was also appealed to by Cauayan City in Isabela when the city closed Newsound, a radio station operated by Bombo Radyo.  The closure, according to the city, was in conformity with zoning regulations and was in no way connected with the broadcasts made by the station.  But the pretense of content neutral regulation was rejected on the evidence that the radio station was an aggressive critic of the ruling administration.  Hence the closure was declared invalid.

Unlike Newsound, however, which was privately owned, the Cebu stations in controversy are, I am told, run by the government.  And owned by the government, I suppose.  Acting Governor Magpale’s argument therefore comes down to saying that the province, in the exercise of its right not to speak, simply decided to gag itself.  There is, after all, a constitutionally recognized right not to speak.  But her supporters seem to be undermining her defense by giving the added reason that the stations were being used to support the candidacy of opponents.  Presumably, therefore, those running the stations were not exactly friends of the Acting Governor.  They too have been effectively gagged.  And this makes reliance on the right not to speak less than credible.

Even, however, during this season of good cheer when good guys sheath their daggers, let us recall what bad guys did in the past with the constitutional prohibition of prior restraint.  Let us hope that what happened then is not anywhere near to being repeated in Cebu and in the nation.

The field of freedom of expression in the martial law decade is a desolate wasteland.  Newspapers and magazines and radios closed by the regime at the start of martial law remained closed, and so total was the regime's hold on media that none of these closures occasioned a single freedom of expression case until 1984.  Later during the martial law regime the closure of the opposition of the newspaper We Forum was followed by charges of rebellion against editors and columnists.  But the Court in 1984 did condemn the closure.    "Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes virtual denial of petitioners' freedom to express themselves in dissent."

Meanwhile, the President is back from Baguio muscle flexed to grapple with national problems including the red-balloon-carrying bishops!  Contrary to what people had thought, he did sign the RH Bill before going to his vacation.  And his trip was not a penitential pilgrimage in expiation for having signed the bill.   

31 December 2012

CLERICS AND THE POLITICAL PROCES

Clerics and the Political Process

Joaquin G. Bernas, S.J.

Debates on the RH Bill have died down and now there is toe in the water talk about divorce.   Some friends have asked me what the role clerics should have in matters involving controversial legislation.  Let me be more general, however, and ask instead about clerical involvement in public affairs.

One person who expressed in very strong language his opposition to religious involvement in public affairs was Barry Goldwater.  He said:  “The great decisions of government cannot be dictated by the concerns of religious factions . . .   We have succeeded for 205 years in keeping the affairs of the state from the uncompromising idealism of religious groups, and we mustn’t stop now!”

Goldwater could not have been more inaccurate historically.  Whether viewed against American history or Philippine history, the statement is false.  Churches have influenced American politics  from the days of Jefferson down to the prophetic preaching of Martin Luther King and the pastoral letters of the American Bishops.  Likewise in the Philippines religion has been involved in politics from the days of Fathers Gomez, Burgos and Zamora down to the pastoral letters on social justice and on the conduct of elections.  I do not see this involvement coming to an end.  Depending on circumstances, it can even intensify, as it did in the RH Bill debate.  But it is legitimate to ask how clerical activism fits into the Philippine political culture.

A question often asked is whether a cleric may run for public office.  There is no constitutional obstacle to that.  There was a Supreme Court decision under the 1935 Constitution which said that clerics, much like firemen and policemen, should not run for public office.  But the decision was actually a minority decision upholding a statutory provision at the time when the Constitution required two-thirds vote of the Supreme Court to declare a law unconstitutional.

As to the obstacle arising from Canon Law prescription, it is not insurmountable. What remains therefore is a question of prudence or propriety.  This writer’s view on this is that in principle a cleric must choose between being fully a church minister or a public official.  Combining the two can be both religiously and politically unhealthy.

Another important question touches on the substance of the preaching of clergy and religious.  Preaching does not simply refer to sermons and homilies in church.  Included are public or semi-public pronouncements such as blogs or columns.

 Certainly no one will deny the clergy the right to preach about morality.  That is their task and they would be remiss in their duties if they habitually avoid moral issues. This is all part of ordinary religious preaching.

It is a different matter, however, when out of general moral teachings specific public positions are advocated – such as impeachment, charter change, the banning of jueteng or even the RH Bill.  Of course, there are specific conclusions that flow naturally from some general positions. But specific practical conclusions do not always come out naturally.  The fact  that an act is clearly sinful does not lead to the easy conclusion that therefore it should be penalized.  If  they were, our prisons would be more crowded than they already are.

Why is it that people sometimes do not want their religious leaders to tell them what specific actions they should take or what political conclusions they should make?  It is all part and parcel of being a citizen of a democracy.  “I have my own mind.  Don’t insult me.  Let me draw my own conclusion!” 

This is a perfectly legitimate attitude.   To avoid alienating people who have such an attitude, a cleric must carefully and respectfully present his conclusions.  If the practical conclusions are presented as the product of one’s own study and are presented for people to agree or disagree with, then no one should feel insulted or offended.  Much less should a cleric threaten hell fire against those who disagree.

Another objection to specific pronouncements by clerics is that their competence and their access to needed facts for drawing conclusions are limited.  Rarely is their expertise related to economics, law, sociology, or politics, etc.  Specific conclusions about the morality of economic or political decisions can depend very much on the dynamics and nuances of these specialized fields.  If the cleric has competence in these fields, then his conclusion can be more persuasive. 

However, it is also good to remember that even the people whose task it is to make important decisions that impact on the lives of people – such as legislators -- do not always have the needed expertise on what they may be talking about.  Some easily talk through their hat. But this is no reason for a cleric to be reckless.

While a cleric, however, should not be reckless in his statements, neither should he be inordinately pusillanimous.  There are political and economic decisions that have great moral significance.  These should be faced, with prudence, yes, but not with cowardly avoidance of conflict.  Risks are part of the apostolic mission. 

Clerics do make mistakes, out of carelessness perhaps or through excess of zeal or even for more foolish reasons.  But in my own estimate, mistakes and all,  courageous stand of clerics and churches can do much harm.  The courage of the churches in the Philippines has made significant contribution to improving economic and political life.

24 December 2012

CASIGURAN CONTROVERSY; RH BILL

The Casiguran Controversy; the RH Bill

 Joaquin G. Bernas, S.J.

In my column last week I reported how the poor folks of Casiguran who were marching to seek the help of the President saw the Apeco project in their area.   The following day I received a call from Reli German who wanted me to listen to the side of Apeco. I asked him to write down how Apeco saw things and to send me their thoughts.

Now let me summarize the position of Apeco as contained in the letter to me of Atty. Malcom I. Sarmiento, President and CEO of Apeco, as forwarded to me by Reli German.

·          The claim of the 120 marchers do not represent the 3,000 households affected by the Apeco development.

·          Those in the group who claim that their land was forcibly taken by Apeco are in fact informal settlers in a school reservation owned by Aurora State College of Technology.

·          The 105-hectare property in contention was originally designated as a school reservation by virtue of Proclamation No. 723, issued by American Governor-General Frank Murphy on August 21, 1934. The Aurora National Fisheries School was created for this purpose. R.A. No. 7664, which created ASCOT, later mandated the integration of this fisheries school, and all its resources including the school reservation, with ASCOT.  This cannot be used for anything other than the original purpose.

·          Despite this, APECO has included these informal settlers among its housing beneficiaries under a program undertaken in partnership with the National Housing Authority (NHA).

·          True, there were 28 families displaced by the construction of the airstrip but this is a project of the Civil Aviation Authority of the Philippines (CAAP) which has extended to them financial assistance and they have been included among the APECO-NHA housing beneficiaries.

·          On the issue of ancestral domain, APECO has never conducted infrastructure development activities in any of the Dumagat settlements within its coverage. We have already sought the help of the National Commission on the Indigenous Peoples (NCIP) to facilitate Free and Prior Informed Consent (FPIC).

·          APECO recognizes the existence of ancestral domain, and supports the IPs in acquiring their Certificate of Ancestral Domain Title (CADT).

·          APECO carries with it the mandate to acquire lands on the condition that it provides just compensation in accordance with law. Apeco has been acquiring and paying for lands almost twice the assessed value.

·          APECO has never resorted to the right of eminent domain or expropriation to acquire lands. Neither has APECO coerced any one to sell their land nor buy land at an unreasonably low price.

·          APECO has no intention to buy lands in the San Ildefonso Peninsula. We give due respect to the rights of existing integrated social forestry (ISFs) beneficiaries in the area.

·          That APECO has cut 10 hectares of centuries-old mangroves to give way to its port is false and misleading. The port referred to is a RORO port that is not within the boundaries of APECO.

·          This port was built decades ago, and rehabilitated by the Philippine Ports Authority as part of the previous administration’s nautical highway program. APECO has absolutely nothing to do with this port.

·          Regarding the supposed lack of consultation on the creation of APECO, we continue to conduct consultations to raise awareness about our development programs among the residents of Casiguran, as well as to seek residents’ proposals on how APECO can more effectively help them. This was followed by several barangay assemblies.

·          Finally, accusations of human rights violations against APECO are mere fabrications.

·          APECO is for development --- for the people of Aurora, supported by the people of Aurora. We appeal to those with vested interests to stop spreading lies that only serve to jeopardize the future of Aurora’s people.

Obviously these are issues of fact about which, from the quiet of my room in the Ateneo Jesuit Residence, I am in no position to offer judgment.

Meanwhile, last week the Casiguran marchers had a long dialogue with the President.  The outcome of that dialogue, I am told, disappointed the marchers.  But as one consequence of that dialogue, the President ordered an investigation to be made by government officials.  I am sure that the investigators will also listen to the Apeco people, if they have not done so yet.  We await the outcome of that investigation hopefully within the week.

My sense, correct me if I am wrong, is that the result of the investigation will not satisfy the marchers and their supporters.  The cultural roots of the problem are too deep.  Hence, whatever the President’s decision might be, that will not be the end of the matter.  There still is the judicial process which can take care of both legal and factual issues.  We should be hearing more about this.

* * * * *

My Stand on the RH Bill

I know that in its un-amended form the RH bill was not perfect and I myself, mainly on constitutional and moral grounds, have offered criticism and suggestions. While the bill has undergone extensive amendment, it remains a work in progress – even as the Constitution is a work in progress. But there are many valuable points in the bill which can serve the welfare of the nation and especially of poor women who cannot afford the cost of medical service.  Let us not burn the house to save a pig.  The surviving pig can be the subject of judicial challenge.

17 December 2012

THE CASIGURAN MARCHERS FOR LIFE

The Casiguran Marchers for Life

Joaquin G. Bernas, S.J.

120 residents of Casiguran— representing at least 2,983 families coming from different sectors such as the farmers, indigenous peoples and fisherfolks— are marching 370-kilometers from Casiguran, Aurora to Malacañang Palace, in order to highlight their opposition, long voiced by the local communities of Casiguran, to the Aurora ecozone.  They will arrive in Manila today, December 10, 2012, and will be welcomed by students from UP, Ateneo and Miriam. Fr. Jett Villarin, SJ, President of the Ateneo, will celebrate mass for them at 7pm at the Church of the Gesu, Ateneo de Manila University, Quezon City.

After their arrival ceremonies they hope to  bring their cause to the champion of Daang Matuwid in the Advent hope that he will hear their cry.  They are coming to Manila during the season when the liturgical readings of Advent recall the cries of the Isrealites for their liberation from their Babylonian exile.

What has precipitated the march of the Casiguran poor to trek through kilometers of rough roads from Aurora to Manila?  They are coming to protest APECO, or the Aurora Pacific Economic Zone and Freeport Authority.  APECO is the 12,923-hectare special economic zone now being built in the town of Casiguran, Aurora, by authority of R.A. 9490 as amended by R.A. 10083 in 2010 (which lapsed into law because the President neither approved nor vetoed it.)  Needless to say, these laws were sponsored by Senator Edgardo Angara and his son Congressman Juan Edgardo Angara, with the endorsement of his sister Governor Bellaflor Angara-Castillo.

For the authors of the law, APECO means economic development and progress not just for themselves but also for the entire population of Casiguran including the marchers.  But how do the poor folk of Casiguran see it?  They see a grim future for themselves..  Their grim outlook is dark enough to drive them to a pilgrimage on foot to Malacañang?

As the poor folks see it, APECO is now seizing large tracts of prime agricultural lands, irrigated and very productive, from them.  They see it as a clear violation of the Comprehensive Agrarian Reform Law (RA 6657 as amended by R.A. 9700). They see APECO as further  dispossessing them of a 110-hectare irrigated rice lands in Casiguran, Aurora for a planned extension of the campus of the Aurora State College of Science and Technology (ASCOT).  The main campus of ASCOT is in Barangay Zabali, Baler, Aurora, which comprises a total of 196.06 hectares.  Not all the areas in the Baler campus have been fully developed yet.  Aside from the Baler and Casiguran campuses, ASCOT also has another extension campus in Barangay Bazal, Maria Aurora which covers an area of 110.8 hectares.  Just like the Casiguran campus, most of the area is still undeveloped by ASCOT.  To sum it up, ASCOT already possesses a total of 416.86 hectares of land, mostly agricultural lands, allegedly for its school purposes.

The marchers also see APECO as intruding into ancestral lands, around 11,900 hectares of the Agta-Dumagats, allegedly without their Free, Prior and Informed Consent (FPIC) as required by RA 8371 (the IPRA law). APECO is accused of having falsely claimed in 2010 that most of the occupants of these lands were merely ‘informal settlers’; 28 fisherfolk families are displaced due to the construction of its soon-to-be 1.5 km airstrip; hundreds more will eventually be crowded out of their fishing grounds in the Casiguran bay should APECO’s international seaport be constructed. And Apeco has allegedly been cutting 10 hectares of centuries old mangroves to give way to its port thereby violating RA 8550 (Fisheries Code).

It is claimed that APECO law was passed without any consultation whatsoever with the people of Casiguran and without the approval of the local government units  as required by the Local Government Code (RA 7160). APECO’s subprojects— such as its airstrip and corporate campus— have all failed to secure the necessary feasibility studies, environmental impact assessments, environmental compliance certificates and engineering and geological surveys, building permit and LGU permits prior to their construction.

It it is also said that APECO paid more than P650,000 per hectare for the coconut land of former Provincial and Environmental Natural Resource Officer, while paying only P45,000 per hectare for the rice lands of those who have already lost their homes thus violating the Anti-Graft and Corrupt Practices Act (RA 3019).

There are other accusations of violation of the Anti-Graft and Corrupt Practices Act (RA 3019) as well as of human rights against anti-APECO campaigners— involving drop-in interrogations, harassment and black propaganda. Mention is also made of Father Jose Francisco Talaban, one of the foremost local leaders in the struggle against the ecozone, who on June 26, 2010, narrowly survived a midnight assassination attempt involving the use of explosives (M203 grenade launchers) and assault guns (M14 rifles).  Allegedly this was perpetrated by an anti-communist group supportive of APECO .

All these seem to add up to a threatening disaster of such a magnitude that it should command the attention of the President.  We will await developments during and after this week.

10 December 2012

ONCE MORE, THE RH BILL

ONCE MORE, THE RH BILL
Joaquin G. Bernas, S.J.
Last Saturday I received an anonymous message through the internet which said: “Anti RH bishops do not speak for the entire clergy. We, the silent Catholic clergy, support the RH [bill]. Poverty dehumanizes. To address it brings us closer to God. Pass the RH [bill].” 
That makes my internet pal a candidate for exclusion from the Church and consignment to eternal fire by Bishop Arguelles. Yet the message expresses a sentiment close to the heart of Cardinal Tagle himself who, in an interview by the Tablet said, “The Church cannot and must not pretend to have easy answers to the dilemmas facing men and women today. Instead, it must be an attentive and listening Church – only that way will people believe that God listens to them too.” He went on: “The Church must be a humble Church, modeling herself more on Jesus and being less preoccupied by her power, prestige and position in society.” Still more: “I realize that the sufferings of people and the difficult questions they ask are an invitation to be, first, in solidarity with them, not to pretend we have all the solutions. [People] can resonate and see the concrete face of God in a Church that can be silent with them, can be as confused as they are, also telling them we share your situation of searching.” 
Jesus Christ himself would not make a facile Arguellian condemnation of my internet pal.
The RH Bill has traveled a long road and I myself have written about it and have likewise been consigned by some to the lower regions. I know that in its un-amended form the bill is not perfect and I myself, mainly on constitutional and moral grounds, have offered criticism and suggestions. I am not about to give up in my effort to help Congress come up with a bill acceptable to all.
There is now, it seems to me, an openness among legislators that is encouraging. A couple of weeks ago the House accepted a substitute bill containing very significant amendments. Hopefully it will be subjected to the amendment process and approved before the House breaks for Christmas.
The amendatory bill first came out in April. No action was taken on it by the House. The following were the salient provisions:
Section 13. Role of barangay health workers. Instead of saying that they should “give priority to family planning work” simply say they should “help implement this Act.” This should obviate the complaints that family planning is being given undue emphasis.
Section 15. Funding Mobile Health Services. Charge the funding to the National Government instead of to the Priority Development Fund of Congressmen (PDAF) while at the same time allowing individual lawmakers to use their PDAF.
Section 16. Mandatory Age Appropriate Sex Education. Give parents the option not to allow their children to attend mandatory sex education while at the same time giving assistance to parents who want assistance in this matter. This is in conformity with the primary right of parents.
Section 20. Ideal Family Size. Delete the entire provision. This will preclude further misinformation about the meaning of this provision.
Section 21. Employers’ Responsibility. Delete this because it is simply a restatement of Article 134 of the Labor Code. Deleting it will preclude further debate.
Section 28(e) Prohibited Acts. Delete the provision which penalizes “any person who maliciously engages in disinformation about the intent and provisions of this Act.” There already are penal limits on freedom of expression.
In addition to the above amendments already proposed by the authors of the consolidated bill there are others which are worth considering. Let me mention a few:
On Age-Appropriate Reproductive Health and Sexuality Education
1. Private schools can opt to provide an alternative sexuality education curriculum based on the school’s religious beliefs or values. The government will monitor that there is a curriculum being implemented, whether the standard one or the alternative one. This is now in the substitute bill.
2. If a public school cannot provide enough adequately trained teachers or there are public school teachers who cannot teach the government’s curriculum because of religion-based objections, the proper government agency would send trained instructors to teach the sexuality education classes.
3. An additional topic for the curriculum is the role of religious freedom and conscience in choosing the means of planning families.
On Prohibited Acts
Any healthcare service provider, whether public or private, who shall require a person to undergo a sterilization as a condition for providing basic health care or emergency care or health care assistance to indigents shall be penalized.
What were first presented last April were mere proposals. They still are tofay. But the acceptance of the substitute bill for plenary debate gives hope that there will be an RH law before Christmas. The original author of the Bill, therefore, Representative Lagman, might receive his Christmas gift. It will not be a perfect law. But every law we have, even the Constitution, is a work in progress. There are many valuable points in the bill 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.
3 December 2012

AN ENDLESS SEARCH FOR PEACE

An Endless Search for Peace

 Joaquin G. Bernas, S.J.

Pius XI was Pope from 1922.  He had inherited the vestiges of the problems that had led to World War I and he could already see new problems that would eventually plunge the world into World War II.  Against the background of this looming tragedy, he wrote his 1925 encyclical Quas Primas setting up the feast of Christ the King which we celebrated yesterday.  

His ambitious goal was for the world to find lasting peace.  He opened his encyclical by saying “that these manifold evils in the world were due to the fact that the majority of men had thrust Jesus Christ and his holy law out of their lives; that these had no place either in private affairs or in politics: and that, as long as individuals and states refused to submit to the rule of our Savior, there would be no really hopeful prospect of a lasting peace among nations.”

Further he said: “Men must look for the peace of Christ in the Kingdom of Christ; and We promised to do that as far as lay in Our power. In the Kingdom of Christ, that is, it seemed to Us that peace could not be more effectually restored nor fixed upon a firmer basis than through the restoration of the Empire of Our Lord.” 

Thus it was that Pius XI instituted the feast of Christ the King.

Those of you who attended yesterday’s Sunday Mass  must have noticed the contrasting images of Christ the King found in the readings. In the first reading, taken from the book of Daniel, Christ is presented as triumphant.  Daniel envisions Christ as the “son of man coming on the clouds of heaven, receiving everlasting dominion, glory and kingship.” This is the kind of king envisioned by men, glorious ad majestic like Queen Elizabeth of England, the best specimen of royalty today.

But in our Gospel reading we see a vastly different king.  Jesus is on trial before Pilate.  His hands are tied, he has a crown of thrones, and he is bloodied all over. Pilate asks Jesus, “Are you the king of the Jews?” He responds, “My kingdom does not belong to this world.”

The answer of Jesus suggests a sharp division between two kingdoms: the kingdom of darkness, where the ruler is Satan, and the kingdom of Jesus.  Immediately therefore we are confronted with a challenge:  Where do you want to belong?  Where do you stand? With the flesh or the spirit? With darkness or light? With the ruler of this world or with the king of God’s world?

This is the way the gospel of John presents the paradox.  But we have to understand the language of John correctly.  It does not mean that by aligning yourself in the kingdom of Jesus you will have nothing to do with the kingdom of Satan.  It does not mean that Jesus has surrendered a kingdom to Satan and he will have nothing to do with it.

Here we see why Pope Pius XI instituted the feast of Christ the King.  When Pius XI instituted the feast of Christ the King through his encyclical Quas Primas he wanted to emphasize that God is the King of all.  As Psalm 24 says, “The earth is the Lord’s and all it holds, and as the Evangelist John says “God so loved the word that he gave his only Son,” (Jn 3.16).  Thus through the institution of the feast of Christ the King Pius XI historically wanted to address a world suffering under such false values as consumerism, free market exploitation, secularism, nationalism, despotism and mass injustice.

World leaders today are still desperately looking for ways of establishing peace, justice and prosperity.  They craft agreements, protocols and treaties.  Our own government is desperately trying to put an end to conflict and division in Mindanao and with remaining Communist forces.

Learn a lesson from Quas Primas: “When once men recognize, both in private and in public life, that Christ is King, society will at last receive the great blessings of real liberty, well-ordered discipline, peace and harmony. Our Lord's regal office invests the human authority of princes and rulers with a religious significance; it ennobles the citizen's duty of obedience. . . . . If princes and magistrates duly elected are filled with the persuasion that they rule, not by their own right, but by the mandate and in the place of the Divine King, they will exercise their authority piously and wisely, and they will make laws and administer them, having in view the common good and also the human dignity of their subjects. The result will be a stable peace and tranquility, for there will be no longer any cause of discontent. Men will see in their king or in their rulers men like themselves, perhaps unworthy or open to criticism, but they will not on that account refuse obedience if they see reflected in them the authority of Christ God and Man. Peace and harmony, too, will result; for with the spread and the universal extent of the kingdom of Christ men will become more and more conscious of the link that binds them together, and thus many conflicts will be either prevented entirely or at least their bitterness will be diminished.”

Would that these ideals will have a place in the platform of parties and candidates in coming elections!

26 November 2012

RIGHT OF REPLY?

Had not the debate on the Freedom of Information Bill been aborted last Tuesday, it might have taken up the issue of “right of apply.”  Actually, this is not the first time that the right of reply has reached Congress.  In 2009 a bill on the subject sought preferential treatment.  Essentially the bill said that “all persons who are accused directly or indirectly of any crime or offense or are criticized by innuendo, suggestion or rumor for any lapse in behavior in public or private life shall have the right to reply to the charges published in newspapers and other publications or to criticisms aired over radio, television, website or through any electrical device.” It did not become law and no case went to court.

Something analogous, however, did reach the Philippine Court. Pursuant to its constitutional power to regulate media during election periods, the Comelec passed a resolution regarding free time or space in media for candidates.  The resolution was not a masterpiece of clarity so that it was not clear whether it was meant to compel media to make time or space available or  whether the Comelec was merely making a recommendation to media.  At any rate, when the Supreme Court took it up in 1995, it said that, if understood as mandatory, it would amount to taking of private property without just compensation. 

The Court could also have taken it up as a speech issue because freedom speech means both the right to speak and not to speak. Political ads, after all, are speech.  But the Court chose to approach it as an illicit act of property high jacking.

Should the right of reply become part of the Freedom of Information Bill or of the Cybercrime Law, it will be a good issue to take up as speech and not just as illicit taking of property.  And since we follow the American tradition on speech jurisprudence, we will be looking for American cases on the subject.  Fortunately there is one that is ready at hand that takes up both sides of the debate.

Miami Herald v Tornillo (1974) involved a Florida law on the right of reply.  Candidate Tornillo, relying on the Florida law, demanded that the Miami Herald print his reply to the editorial comments of the Herald.  But the Florida law was declared unconstitutional.

It is interesting that the Supreme Court took pains to summarize the arguments brought up in favor of a right of reply.  They are worth recalling if only to see if they find resonance in our condition.

Essentially the argument in favor of a right of reply rested on the historical premise that "at the time the First Amendment to the Constitution was ratified in 1791 as part of our Bill of Rights the press was broadly representative of the people it was serving and collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive . . . A true marketplace of ideas existed in which there was relatively easy access to the channels of communication." 

However, the argument ran, because of changed circumstances newspapers had ceased to be "a true marketplace of ideas."  "The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion." 

Proponents also sought support from certain dicta of the Supreme Court suggesting that the guarantee of a free press also imposed obligations on owners of newspapers.  The First Amendment, they quoted, "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public."  Cited also was the dictum that spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

In the end, however, the Court was deterred by problems of implementation. "However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual.  If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years."

The Court also said: "The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers - and hence advertisers - to assure financial success; and, second, the journalistic integrity of its editors and publishers. . . . The clear implication has been that any such a compulsion to publish that which ‘reason’ tells them should not be published is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated."

I might also add that a right of reply in the context of current Philippine society today will not really add anything  to what people who pay attention to media already know.  Newspaper readers, radio listeners and television viewers already are bombarded with biased reporting, some straight and others biased, and opposing opinions of columnists.  The strong temptation in fact is to ignore them or sometimes to go over media, just for fun, as a vacuum cleaner would -- only to look for dirt. 

19 September 2012

ONCD MORE THE PARTY LIST

In an earlier column I wrote  that I would not be unhappy if the party-list system were to be abolished.  But to achieve abolition, a constitutional amendment is needed.  Considering, however, that we have a President who is averse to constitutional amendments and who controls the Congress which alone can set amendment in motion, we must live with the party-list system warts and all.  Let me therefore just say something about matters that are being currently debated and which are giving the Comelec sleepless nights.

To understand the debate about the party-list organizations themselves and the qualification of their representatives, we should go back to the text of the Constitution. It says “The party-list representatives shall constitute twenty per centum of the total membership of the House of Representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”

There are two main questions arising from this text.  The first question is whether the membership of the organization must always consist of underprivileged “labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector” or is the  required underprivileged membership only for the first three consecutive terms after the ratification of the Constitution?

Since the start of the implementation of the system the understanding has always been that the classes enumerated under the Constitution are the examples of the classes which may initiate a party party-list organization. They are what are usually referred to as underprivileged or underrepresented. The constitutional enumeration is not exclusive.  It can include other sectors “as may be provided by law” but, of course, under the principle of euisdem generis.  Thus R.A. 7941 has expanded the list  to include “fisherfolk, elderly, handicapped, veterans, overseas workers, and professionals” to make a total of twelve sectors.

But was it the intention of the Constitutional Commission that, for these sectors to continue as party list organizations, the members must remain “underprivileged and underrepresented?”  I do not see it that way.  The reason that these underprivileged sectors were given three consecutive terms without competition was to help them build up their strength.  And strength can come from the improvement of the lot of the members.  This, after all, was the social justice aim of the party list system – to uplift the life of the masses.

The law, however, does not say what is to be done with the party list organizations that have gained the strength of regular political parties and have grown capable of participating in the rough and tumble of regular party politics. Can the Comelec disqualify them now?  It seems to me that legislation is needed to answer this question.

The next important question is whether those who are to represent the party-list organization must belong to one or other of the classes of underprivileged citizens, that is, labor, peasant, urban poor, indigenous cultural communities, women, youth, fisherfolk, elderly, handicapped, veterans, overseas workers, and professionals. 

The Constitution does not prescribe a social class requirement for the party list representative. For its part R.A. 7941 simply says that the party-list representative must be  “a bona fide member of the party he seeks to represent for at least ninety (90) days preceding election day.”

The distinction that must be made is between belonging to a class and belonging to an organization.  A party list representative does not have to belong to one of the twelve underprivileged classes.  But he must be a bona fide member of an organization championing the cause of the underprivileged.  In other words, although he socially might not be one of them, his heart should belong to them.  That, for instance, is what Mickey Arroyo claimed where his heart rested.

Take another case, the Ako Bikol.  The representatives of Ako Bicol  do not belong to any one of the underprivileged classes.  Although they are professionals, the professionals referred to by law are health workers, artists, cultural workers and the like but not high priced medical or legal practitioners.  From what I have seen in the papers, the representatives of Ako Bicol are not any of these!  But they seem to be bona fide members of the organization they represent.  The Comelec did not question their bona fide membership; but the Comelec questioned the legitimacy Ako Bicol itself.

Ako Bicol was considered qualified three years ago.  Was Ako Bicol disqualified now because the status of its members had improved or because the Comelec erred three years ago?  If it was error three years ago, does the disqualification retroact to three years ago?  If it does, what would be the status of the current representatives?

Jurisprudence places the task of determining the qualification of party list organization in the hands of the independent Comelec.  Did the Comelec commit a grave abuse of discretion by disqualifying Ako Bicol? 

10 September 2012

P.S.  The best explanation of UNDAS I got was as acronym for “Unos dias de los santos y de las almas.”

The Long Weekend

One of the distractions I had during the long weekend was trying to find out the etymology of the word “undas.”  I thought it might be an old Tagalog word, but my Tagalog colleagues could not tell me its origin.  Neither could the ones steeped in Spanish.  The dictionaries themselves simply say “All Saints Day” or “Todos los Santos.”  I guess I will have to wait until someone gives me the definitive answer before next “undas.”

Another fascinating question during this time of the year is about the origin of Halloween.  I guess the explanation given by one Jesuit writer might be as good as any. He says:  “The real tradition of All Hallows’ Eve is that before the day of holiness, there is a crack in the fabric of the cosmos which allows evil spirits from the underworld to assault us: at that point in time, we are vulnerable, as traditionally we are vulnerable at the moment of death and need the name of Jesus to be spoken to us loudly because hearing is the last faculty to go and the devil needs to be outshouted in the name and power of Jesus. And so, on All Hallows’ Eve, people are meant to go out into the streets in scary costumes and make loud noises to frighten the devils away and to enact annually the victory of holiness over evil. It is a mythological extension of the themes of the Easter vigil, but who tells you that now? No one. We are to outshout the devils and cast them back down to their captivity in hell, and that’s what All Hallows eve is about. It is both Christian and mythological, and I want you at this point to see that there is such a thing as Christian mythological thinking which is significant and truth-bearing.”

The mythological thinking has its underpinning from the Council of Trent that “here is a purgatory, and that the souls therein are helped by the suffrages of the faithful, but principally by the acceptable Sacrifice of the Altar.”

“But the underpinning of this religious vision has gone now: how Halloween is now celebrated comes from how Hollywood imagines the forces of evil, and the young people on the streets and in the clubs imitate the images from horror films they have seen. They evoke demonic presences that no one takes seriously in any ontological sense, but have an imaginative power that derives from the world of digital reality, and in popular imagination death-dealing demons, robotic killing-machines and seductive vampires have taken the place of metaphysical evil. In the Christian vision metaphysical evil is only what comes from the twisting of human and angelic freedoms. Creatures go wrong through the exercise of their freedom; evil is a twisting of the will, a by-product of freedom, not a feature within the natural order. This is why one can say in all seriousness that death is not evil because it is a feature of the world’s order that expresses the divine nature.”

From my window in the Jesuit Residence at the Ateneo, I have a panoramic view of Loyola Memorial Park. On All Saints eve it is all lit up and one can see cars and people moving around.  I don’t believe that the preoccupation of the hundreds who stay overnight there are the mythological images Halloween.  They are there to pay tribute to their loved ones and to pray for them to be hastened to their final destination because they believe in what the Council of Trent teaches about Purgatory.

What can be said of Purgatory.  If I may again quote a Jesuit, “The first thing that this name may evoke in us is the troubling image of a ‘god’ who makes us pay right down to the last penny, or at best the image makes us think of a ‘waiting room’ through which most mortals will have to pass in order to be able to reach celestial beatitude.  If we add to those images certain liturgical practices of dubious quality, we have more than enough reasons to ignore the topic.

“Nevertheless, we cannot deny a certain plausibility to purgatory, first because our access to celestial beatitude will always be a creaturely access.  Heaven does not mean that we fuse into God and disappear into him, but rather that we become united with him while preserving our own identity, an identity which, in its likeness to God’s, becomes supremely relational.

“We know, of course, from experience that making our very own the love God gives us inevitably presupposes a process, or better: a way.  Every forward movement on the way is a source of joy, but progress on the journey can also be very painful at times.  John of the Cross points out quite correctly that the real misery of the human condition consists in this: what is most helpful and beneficial for us becomes harsh and difficult to absorb.

“We are blinded by the excess of light.  Possibly this is what purgatory is all about: knowing that we are utterly saved and nevertheless still on the way to taking full possession of that salvation.  In other words: purgatory is heaven, but seen ‘from this upward slope’.”

Do I really understand all that?  I am not sure I do.  But I know and believe that our God is a God of love.  And that is the reason why millions of people flock every year to memorial parks and churches to pray for their departed loved ones, even if they do knot know exactly how their prayers can hasten their loved ones up the upward slope.

5 November 2012

ABOUT DYNASTIES

About Political Dynasties

 Joaquin G. Bernas, S.J.

There is a rising clamor for a law against political dynasties.  Without a law implementing the constitutional prohibition, the end of dynasties is nothing more than a consummation devoutly to be wished.  This, in fact , is true of practically all the provisions in Article II’s Declaration Principles and State Policies.  They need implementing law.  The big question is what are the chances that political dynasty bill can become law? 

This is not a novel question.  The constitutional provision itself was a subject  of debate in the 1987 Constitutional Commission.  The political dynasty provision was authored by Commissioner Nolledo.  A similar provision had already been rejected under the article on Local Governments but Nolledo entertained the hope that the Constitutional Commission might still approve one because, as he said, “It seems to me that the resolution asking for a provision in the Constitution is very popular outside but does not seem to enjoy the same popularity inside the Constitutional Commission.”  He was also faintly hoping that Congress would do what the Commission would not do.  Hence his impassioned plea:  “And so I plead with the Members of the Commission to please approve this provision. . . [W]e leave it to Congress to determine the circumstances under which political dynasty is prohibited.  The Commission will not determine hard and fast rules by which political dynasty may be condemned.  But I think this is a very progressive provision and, in consulting the people, the people will like this provision.  I hope the Commission will hear the plea of the people.”

The thrust of the constitutional provision is to impose on the state the obligation of guaranteeing equal access to public office.  Although the provision speaks in terms of service, it is meant to be  a blow in the direction of democratizing political power. Commissioner Nolledo had the support of   Commissioner (now Comelec Commissioner Sarmiento) who explained the rationale of the provision thus:

“By including this provision, we widen the opportunities of competent, young and promising poor candidates to occupy important positions in the government.  While it is true we have government officials who have ascended to power despite accident of birth, they are exceptions to the general rule.  The economic standing of these officials would show that they come from powerful clans with vast economic fortunes.”

But strong contrary views were also expressed.  Commissioner Monsod’s was brief: “I just want to make the motion to delete Section 20 [now 26], first, because it has been argued and debated fully in the Article on Local Governments and this body has already made a decision on the same point; and, secondly, for the reasons I have stated, that I do not think we should curtail the right of the people to a free choice on who their political leader should be.”

Commissioner Ople for his part argued that what were called dynasties were in fact not the causes of social evils but the result of socio-economic imbalances.  He concluded that the Commission should address these socio economic imbalances instead.  

He also noted that, even under present conditions, less privileged citizens have succeeded in establishing themselves politically.  He added: “In my own province there are no longer any dynasties.  There are other provinces where you find the word ‘dynasty’ probably misapplied to a distinguished family, let us say, to the Cojuangco and Aquino family in Tarlac or the Padilla family in Manila and Pangasinan, or the Rodrigo family in Bulacan, or the Laurel family in Batangas, and the Sumulong-Cojuangco family in Rizal, the Calderon family in Nueva Vizcaya, and Peps Bengzon has been calling my attention to the existence now of a Bengzon line of political office holders in Pangasinan.  This is not to say, Mr. Presiding Officer, that the Philippine society has been immobile.  We see lots of evidences that, in fact, people disadvantaged by the accident of birth have indeed risen through their own efforts to become successful competitors of entrenched political dynasties in their provinces and cities.  I can sympathize with Commissioner Nolledo's concern about dynasties because he comes from a province which tends to be governed by political dynasties.  Is that not right, Mr. Presiding Officer?”

The argument that the electorate should be left free to decide whom to choose is not without validity.  Partly for that reason, the meaning of political dynasties has been left for Congress to define.  But since Congress is the principal playground of political dynasties, the realization of the dream that the provision on political dynasties would widen access to political opportunities, will very probably be exhaustingly long in coming.

There is pending in the Senate, since 2011, Senate Bill 2649 authored by Senator Miriam Defensor Santiago.  Her Explanatory Note pretty much sums up the arguments expressed by others for the passage of such a bill.  But the bill still languishes unattended.  Will a constitutional amendment by referendum and plebiscite, as suggested by Chairman Brillantes, succeed in drafting a provision  that defines what political dynasty means? But amendment by initiative and referendum has had its own problems.

29 October 2012

The RP-MILF Framework of AGreement: Part II

There was big hoopla at the signing of the Framework of Agreement between the government and the MILF last week. I found that somewhat amusing because  one of the clearest  characteristics of the Agreement is lack of clarity.  It leaves so much unsaid.  As the Agreement itself says, “The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year.” So, what did the parties really agree about beyond agreeing to continue working?

Moreover, what will be achieved by the end of the year, that is, a little over two months from now, will not yet be the peace agreement itself but the guidelines to be followed in formulating the substantive provisions of the peace agreement.  The full peace agreement will be the Basic Law formulated by Congress and approved in a plebiscite by the constituent units.  Year 2016  seems to be the target.

Let me now comment on some possible constitutional issues which need elaboration.  The “ministerial” concept has been criticized.  I have no problem with it even if I don’t know what is exactly meant by it. I guess it can mean either a Cabinet form or a parliamentary form of government.  Whatever it is, it it really make no problem because, while the Constittion specifies a presidential form of national government,  it does not have the same prescription for local governments.  We might recall that Metro Manila had a Commission form of government which was neither prescribed nor prohibited by the 1973 Constitution.

More crucial is the envisioned relationship between the central government and the Bangsamoro government.  It is called “asymmetric.”  Again I do not know what this is meant to hide.  Could it be that the Framework is just avoiding the term “associative” found in the MOA-AD of 2008?  If this is the case, we have to recall what the Supreme Court said of that relationship.  The Court rejected it as having no place in the Constitution.

Of course, the 2008 Court was referring to specific provisions of the MOA-AD as containing the “associative” principle.  We do not yet know what the current Court might say since we have not yet been told what the Framework means by “asymmetric” relationship.

Central to the formulation of the Basic Law will be the role of Congress.  It is Congress that will enact the Organic Act for the autonomous region.  The shape of Congress that will enact the Basic Law will be affected by the coming national elections.  The senatorial and congressional campaigns, especially in regions that will be affected by the desired Bangsamoro Basic Law, will have to take into consideration the sentiment of voters in those areas.

In framing the Bangsamoro Basic Law, the main guide should be the Constitution.  This is not clearly reflected in the Framework.  The Framework says that the “provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties.”  Similarly it says that the “Bangsamoro shall have a just and equitable share in the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties.”  This seems to mean that Congress, in the formulation of the Basic Law, must accept any agreement of the parties.  This seems to make Congress a rubberstamp for what the Agreement wants.  Again, this needs clarification.

The Framework recognizes as possessing the Bangsamoro identity those “who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood” together with their “spouses and descendants,” but adding that the “freedom of choice of other indigenous peoples shall be respected.” This is the same as the provision in the MOA-AD.

Will this satisfy those who are not indigenous Moros?  Both the MOA-AD and the Framework lump together the identities of the Bangsamoro and other indigenous peoples living in Mindanao including Palawan.   More acceptable is the provision of the current Organic Act which distinguishes the Bangsamoro people, that is, those who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions, and other Tribal peoples whose social, cultural and economic conditions distinguish them from other sectors of the national community.

Another contentious issue will be determination of the areas that will be part of the Bangsamoro territory.  What the Framework proposes is larger than the ARRM territory today.  This will require a plebiscite as prescribed by the Constitution.

Next there is the powerful Transition Commission.  Will the MNLF be given a role?

These are some of the potential issues already reflected in the current shape of the Framework of Agreement.  Other issues will arise from the final form of the Framework when completed at the end of next December.  Everyone will be waiting for that final Framework of Agreement.  They can either increase or diminish the volume of the current chorus of jubilation.

22 October 2012

RP-MILF Agreement: Part I

The RP-MILF Framework of Agreement: Part I

 Joaquin G. Bernas, S.J.

There is much rejoicing over the Framework of Agreement reached between the Philippine Government and the MILF about achieving peace in Muslim Mindanao.  There is justification for the rejoicing mainly because we have overcome the stalemate that resulted from the rejection of the 2008 MOA-AD by the Supreme Court AND the parties have agreed to stop fighting for now.

The central issue of that 2008 failed process was the extent of the President’s power in pursuing the peace process.  That issue is still alive. If the Framework, like the MOA-AD, is challenged before the Supreme Court, once again the Supreme Court will have a big task to perform. As the prefatory statement of the Court in 2008 said, “It must uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively.”  Some of the issues that arose from the 2008 MOA-AD may also be found in whatever final form the new peace agreement will take.

The Framework of Agreement is not yet the peace agreement.  It is an agreement to work toward the formulation of the peace agreement.  The very first section of the Framework already announces the enormity of the challenge: “The Parties agree that the status quo is unacceptable and that the Bangsamoro shall be established to replace the Autonomous Region in Muslim Mindanao (ARMM). The Bangsamoro is the new autonomous political entity (NPE) referred to in the Decision Points of Principles as of April 2012.” 

The rejected status quo has its root in Article X of the 1987 Constitution, and in the Organic Act giving life to the current Autonomous Region of Muslim Mindanao (ARMM), a work of Congress.  And as the Organic Act itself says: “Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the votes cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision.” 

It is clear therefore that Congress both as a statutory body and a constituent assembly will be needed in the formulation of the final form of the peace agreement. 

The Framework is an unfinished document.  As the final provision says: “The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year.”  What will be achieved by the end of the year, that is, by the end of next December, if at all, cannot yet be the peace agreement itself but the guidelines to be followed in formulating the substance of the peace agreement. 

The Framework itself in its present form, notwithstanding widespread jubilation, already poses some procedural challenges and hints at the substantive issues that may arise.  A major procedural part of the Framework itself will be the formation of the powerful Transition Commission.  The composition of its membership can be a delicate issue.  Will the MNLF havw a role? The Transition Commission will make the preliminary draft of the substantive changes that the Agreement proposes to achieve. 

What are the substantive issues already reflected even from the current Framework which the government may have to defend or clarify?  First, the Framework says that the form of government shall be “ministerial.”  The parties still have to clarify what this means.

The Framework says that the relation between the Bangsamoro and the central government shall be “asymmetric.”  What does this mean?  Is it different from the “associative“ relation rejected by the Court in 2008 as having no place in the Constitution?

The Framework recognizes the Bangsamoro identity of those “who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood” together with their “spouses and descendants.”  But the “freedom of choice of other indigenous peoples shall be respected.”  Will those who are not indigenous Moros be happy to be identified as such?

The Framework says that the “provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties.”  Does this mean that Congress, in the formulation of the Basic Law, may not reject any agreement of the parties? 

The Framework says that the “Bangsamoro shall have a just and equitable share in the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties.”  Does this mean the curtailment of the power of Congress, contained in the Constitution, to determine the local government share in the proceeds of natural resources in the area?

The determination of the components of the Bangsamoro territory will surely be a contentious issue as it was in 2008.

These are some of the potential issues already reflected in the Framework today.  Will the Aquino government succeed before the end of the President’s term?

15 October 2012