Saturday, December 29, 2012


Non-Duel at the Cebu Provincial Capitol
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

Saturday, December 22, 2012


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

Saturday, December 15, 2012


The Casiguran Controversy; the RH Bill
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

Saturday, December 8, 2012


The Casiguran Marchers for Life
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 Malaca├▒ang 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 Malaca├▒ang?
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

Sunday, December 2, 2012


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