GMA AND THE RIGHT TO TRAVEL
Joaquin G. Bernas, S.J.
Justice Douglas, in Aptheker v. Secretary of State, said: "Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interest of security . . . . That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes."
Freedom of movement in Philippine law has evolved through the 1935, 1973, and i987 constitutions. The “watch list order” issued by the Secretary of Justice must be measured against the present status of the current constitutional provision
The 1935 provision simply said: "The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired." The teaching then was that no one could be compelled to change his or her home except in accordance with law. Thus, when the Mayor of Manila sought to cleanse the city of prostitutes by sending them to Davao, the Supreme Court stopped him. The Court then said: "If [the City Mayor and Chief of Police] can take to themselves such power, then any official can do the same . . . And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen."
The 1973 Constitution altered the 1935 text to read: "The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health." The liberty could thus be impaired either "upon lawful order of the court" or even without such order of a court provided that the restriction was "necessary in the interest of national security, public safety, or public health." The phrase "within the limits prescribed by law" in the 1935 provision disappeared. Thus, the net effect was that an executive officer could impair liberty of abode and of travel even without a prior court order provided only that in the executive officer's judgment impairment was "necessary in the interest of national security, public safety, or public health."
Drastic attempts by the government to control the travel of citizens during the period of martial law did reach the Court. The curtailment took the form of denial of exit permits. The Court had occasion to warn the Travel Processing Center not to treat the constitutional guarantee of the right to travel as an empty phrase in a pauper’s will.
The 1987 Constitution has strengthened the guarantee by splitting freedom of movement into two distinct sentences and treating them differently. The liberty of abode is treated in a separate sentence. It may be impaired only "upon lawful order of the court," and the court is to be guided by "the limits prescribed by law" on the liberty itself. The clear intent was to proscribe practices like "hamletting."
As to liberty of travel, under the 1987 law, it may be impaired even without court order, but the appropriate executive officer is not armed with arbitrary discretion to impose limitations. He can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which had disappeared from the less libertarian 1973 text.
My questions, therefore, are two. First, in what way will the travel of GMA be a threat to "national security, public safety, or public health.” Second, by what statutory authority is the Secretary of Justice preventing the exit of GMA?
In issuing “watch list orders” the Department of Justice has relied on its prosecutorial powers as found in Section 3[1], [2] & [6], Chapter I, Title III, Book IV of the Administrative Code. Of these, the only part specifically related to travel is Section 3(6) which deals with the admission and stay of aliens! In effect, the policy being followed now claims even a broader executive discretion than that given under the 1973 Constitution which at least was limited by the needs of "national security, public safety, or public health.”
The limitation on the right to travel must be based on law and not on a mere executive circular. The limitation may also be by legitimate court order under the Rules of Court. As the Court has said in reference to persons out on bail, (and who are therefore under the jurisdiction of a court), the right to travel should not be “construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such Court or officer.” The executive department is claiming similar discretionary power and without relation to national security, public safety, and public health.
Incidentally, the celebrated case on the right to travel was the ban of President Cory Aquino on the former President’s return to the Philippines. Since the authority to impair the right to travel must be based on law, there was need to point to a law giving her such authority. The Court found it in the “faithful execution clause” of Article VII, Section 17. The Court accepted the argument that the return of Marcos then could be a threat to public safety and the stability of the government at that time. Is the Secretary of Justice making such claim even if the President himself has been quoted as saying that he has no objection to the foreign travel of GMA?
31 October 2011
Saturday, October 29, 2011
Saturday, October 22, 2011
ARMM Elections
THE UNFINISHED BUSINESS OF ARMM ELECTIONS
Joaquin G. Bernas, S.J.
The Supreme Court , last Tuesday, came out with a decision on what to do with the R.A. 10153 calling for synchronization of ARMM local elections with the 2013 elections. R.A. 10153 had said that, after the expiration of the term on September 30, 2011 of the elected regional elections, no elections should be held until May 2013. Since that would leave the elective positions vacant, R.A. 10153 authorized the President to fill them by appointment of temporary officers. Expectedly, petitions for the nullification of R.A. 10153 were filed with the Supreme Court.
Early reports about the decision said that the Court voted 8-7 in favor of the validity of the law. But the score is not really as straightforward as a simple 8-7. It is necessary to look at the various issues involved. Let me attempt this on the basis what has been released in the Internet.
First, there is the issue of synchronization. It seems clear from SC spokesperson Marquez’ announcement that 15 justices were in agreement on that point. But why synchronize? Even in the early debates on the subject, the support for synchronization was founded on the desire of the Transitory Provisions of the 1987 Constitution that local elections be synchronized with national elections. This desire is not explicitly stated but it can be deduced from Section 2 and 5 of the Transitory Provisions. And since the ARRM elections are local elections, it stands to reason that they should be synchronized with other local elections.
Moreover, there is another reason given for synchronization peculiar to the ARRM. It is argued that the absence of synchronization in ARRM gives undue advantage to the powerful lords of the area to control the results of local elections. Synchronization will have the effect of diffusing the energies of the local lords since they would be attending to both local and national elections. This reason, coupled with the desire for economy, eventually convinced Congress to pass the synchronization law.
But should not RA 10153 be subjected to a plebiscite as an amendment to the Organic Act? The simple answer is that R.A. 10153 is not an amendment to the Organic Act. The OA did not set the date for regional elections. True, R.A. 9054 had a date for elections, but it was a date for the first election and not for regular elections. The date set by R.A. 9054 therefore is functus officio. To say that a plebiscite is needed to amend it is to say that it is an irrepealable law. The date for regular elections is a matter left by the Organic Act to ordinary legislation.
The reported 8-7 split was not on the issue of synchronization but on the manner of filling the vacancies left by the expiration of the term of elected officials last September 30. It is not a clean split. How break it down?
8 justices say that the President should fill the vacancies by appointment. They oppose holdover by the elected officials because a holdover would extend the term beyond the three years allowed by the Constitution. What this means is that a holdover beyond the term is not just an extension of tenure. It would be in fact an extension of term in violation of three year constitutional limit for local officials.
As for the President’s power to appoint, I believe that it can be justified on the basis of what is called the “faithful execution clause” found in Article VII, Section 17. In effect this means that when a vacancy exists and there is no law indicating how it is to be filled, the President in exercise of his “residual powers,” fills it. But in fact there already is a law. R.A. 10153 gives the power to the President.
2 Justices, however, would recognize only a power of the President to appoint a Governor and would call on the Comelec to schedule special elections for the other vacated offices. In my view it is for the legislature and the executive, and not for the Court, to decide whether or how these vacancies or to be filled. I do not see how the Comelec can set an election date different from the date already set by R.A. 10153. The Comelec’s power is only to enforce the law.
I have not seen a written opinion of the rest of the justices led by the Chief. I understand, however, from the statement of the SC spokesperson that they see no virtue at all in R.A. 10153 except for the call for synchronization. They do not recognize the President’s power to appoint and would have the elected officials holdover until the 2013 elections.
The decision, of course, is not yet final because reconsideration is still possible. Already those who had opposed the passage of R.A. 10153 are set to go to Court to plead for reconsideration. What could be the final result? With all due respect, let me speculate.
First, on the matter of synchronization, it would be difficult to foresee a reversal of the 15-vote majority – even by a Court that is accused of tending to flip-flop.
As to the power of the President to fill all regional elective positions, I do not expect those who reject this totally to budge from their negative position.
As to those who would give to the President only the power to appoint only a Governor, whichever direction they might eventually go will not really affect the majority.
What of special elections? Think of the expense, considering that May 2013 is not so far away.
24 October 2011
Joaquin G. Bernas, S.J.
The Supreme Court , last Tuesday, came out with a decision on what to do with the R.A. 10153 calling for synchronization of ARMM local elections with the 2013 elections. R.A. 10153 had said that, after the expiration of the term on September 30, 2011 of the elected regional elections, no elections should be held until May 2013. Since that would leave the elective positions vacant, R.A. 10153 authorized the President to fill them by appointment of temporary officers. Expectedly, petitions for the nullification of R.A. 10153 were filed with the Supreme Court.
Early reports about the decision said that the Court voted 8-7 in favor of the validity of the law. But the score is not really as straightforward as a simple 8-7. It is necessary to look at the various issues involved. Let me attempt this on the basis what has been released in the Internet.
First, there is the issue of synchronization. It seems clear from SC spokesperson Marquez’ announcement that 15 justices were in agreement on that point. But why synchronize? Even in the early debates on the subject, the support for synchronization was founded on the desire of the Transitory Provisions of the 1987 Constitution that local elections be synchronized with national elections. This desire is not explicitly stated but it can be deduced from Section 2 and 5 of the Transitory Provisions. And since the ARRM elections are local elections, it stands to reason that they should be synchronized with other local elections.
Moreover, there is another reason given for synchronization peculiar to the ARRM. It is argued that the absence of synchronization in ARRM gives undue advantage to the powerful lords of the area to control the results of local elections. Synchronization will have the effect of diffusing the energies of the local lords since they would be attending to both local and national elections. This reason, coupled with the desire for economy, eventually convinced Congress to pass the synchronization law.
But should not RA 10153 be subjected to a plebiscite as an amendment to the Organic Act? The simple answer is that R.A. 10153 is not an amendment to the Organic Act. The OA did not set the date for regional elections. True, R.A. 9054 had a date for elections, but it was a date for the first election and not for regular elections. The date set by R.A. 9054 therefore is functus officio. To say that a plebiscite is needed to amend it is to say that it is an irrepealable law. The date for regular elections is a matter left by the Organic Act to ordinary legislation.
The reported 8-7 split was not on the issue of synchronization but on the manner of filling the vacancies left by the expiration of the term of elected officials last September 30. It is not a clean split. How break it down?
8 justices say that the President should fill the vacancies by appointment. They oppose holdover by the elected officials because a holdover would extend the term beyond the three years allowed by the Constitution. What this means is that a holdover beyond the term is not just an extension of tenure. It would be in fact an extension of term in violation of three year constitutional limit for local officials.
As for the President’s power to appoint, I believe that it can be justified on the basis of what is called the “faithful execution clause” found in Article VII, Section 17. In effect this means that when a vacancy exists and there is no law indicating how it is to be filled, the President in exercise of his “residual powers,” fills it. But in fact there already is a law. R.A. 10153 gives the power to the President.
2 Justices, however, would recognize only a power of the President to appoint a Governor and would call on the Comelec to schedule special elections for the other vacated offices. In my view it is for the legislature and the executive, and not for the Court, to decide whether or how these vacancies or to be filled. I do not see how the Comelec can set an election date different from the date already set by R.A. 10153. The Comelec’s power is only to enforce the law.
I have not seen a written opinion of the rest of the justices led by the Chief. I understand, however, from the statement of the SC spokesperson that they see no virtue at all in R.A. 10153 except for the call for synchronization. They do not recognize the President’s power to appoint and would have the elected officials holdover until the 2013 elections.
The decision, of course, is not yet final because reconsideration is still possible. Already those who had opposed the passage of R.A. 10153 are set to go to Court to plead for reconsideration. What could be the final result? With all due respect, let me speculate.
First, on the matter of synchronization, it would be difficult to foresee a reversal of the 15-vote majority – even by a Court that is accused of tending to flip-flop.
As to the power of the President to fill all regional elective positions, I do not expect those who reject this totally to budge from their negative position.
As to those who would give to the President only the power to appoint only a Governor, whichever direction they might eventually go will not really affect the majority.
What of special elections? Think of the expense, considering that May 2013 is not so far away.
24 October 2011
Saturday, October 15, 2011
FREEDOM OF INFORMATION
FREEDOM OF INFORMATION
Joaquin G. Bernas, S.J.
With the debate going on now on the urgency or non-urgency of the Freedom of Information Bill one might get the impression that the Bill is about a novel right. As a matter of fact, however, there already is a constitutional provision on the subject. The debate is more about the clarification of the right and about the advantages and disadvantages, or even of the danger, of providing for a statutory version.
The constitutional guarantee now reads: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”
As can be seen, the provision is both a grant of the right and a clarification that the right may be subjected to statutory limitations. The right was first introduced in the 1973 Constitution. It is an improvement on what was originally proposed to the 1971 Constitutional Convention. The orgitnal proposal simply said that access to official records and the right to information "shall be afforded the citizens as may be provided by law." It therefor was not a self-executory provision. It needed statutory implementaion. The draft was later reworded to make the Constitution itself give the right, but subject to statutory limitations.
The significance of this change may be seen when viewed in the light of the pre-1973 case of Subido v. Ozaeta. The question presented before the Court was whether the press, and, for that matter, the public, had a constitutional right to demand the examination of public land records. The Court answered: “We do not believe that this constitutional right [freedom of the press] is in any way involved. The refusal by the respondent does not constitute a restriction upon or censorship of publication. It only affects facilities of publication, and the respondents are correct in saying that freedom of information or freedom to obtain information for publication is not guaranteed by the constitution.” Fortunately, however, the Court finally ruled that the press had a statutory right to examine the records of the Register of Deeds because the interest of the press was real and adequate.
The 1973 Constitution went beyond the Subido case and recognized the right of access to public documents and records as a self-executory constitutional right. The role given to the National Assembly was not to give the right but simply to set limits on the right granted by the Constitution. The right is now recognized as a public right where the real parties in interest are the people. Hence, every citizen has “standing” to challenge any violation of the right and may seek its enforcement by mandamus.
The 1987 Constitution has preserved the 1973 text but with the addition of the phrase "as well as to government research data used as basis for policy development." The amendment came as a reaction to the government practice during the martial law regime of withholding social research data from the knowledge of the public whenever such data contradicted policies which the government wanted to espouse. The reference, however, is to "government research data," that is, to the findings of government funded research and not to the findings of privately funded research over which private proprietary rights might exist.
The constitutional right, however, does not mean that every day is an open house in public offices. The right given by the Constitution is "subject to such limitations as may be provided by law." Thus, while access to official records may not be prohibited, it certainly may be regulated. The regulation can come either from statutory law or from what the Supreme Court has called the "inherent power [of an officer] to control his office and the records under his custody and . . . to exercise [some discretion] as to the manner in which persons desiring to inspect, examine, or copy the record may exercise their rights."
The question then boils down now to determining the scope of official regulatory discretion. This is what the Freedom of Information Bill tries to do. While the Constitution says that the right may be limited by law, the Bill in effect seeks to limit the scope of official regulatory discretion.
The problem, however, lies in determining what matters are of public concern and what are not. For, certainly, every act of a public officer in the conduct of the governmental process is a matter of public concern. Jurisprudence in fact has said that “public concern,” like “public interest,” eludes exact definition and embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen.
It is true that the right, as held by the Court, may be asserted by any citizen. But in the face of the unclarity of the meaning of matters of public concern, every time the right to freedom of information is asserted now, judicial intervention can become necessary. Clearly what is needed is balance. The challenge is how to achieve this balance especially in the face of the recognized right of “executive privilege” which has also been the subject of much dispute in recent months.
17 October 2011
Joaquin G. Bernas, S.J.
With the debate going on now on the urgency or non-urgency of the Freedom of Information Bill one might get the impression that the Bill is about a novel right. As a matter of fact, however, there already is a constitutional provision on the subject. The debate is more about the clarification of the right and about the advantages and disadvantages, or even of the danger, of providing for a statutory version.
The constitutional guarantee now reads: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”
As can be seen, the provision is both a grant of the right and a clarification that the right may be subjected to statutory limitations. The right was first introduced in the 1973 Constitution. It is an improvement on what was originally proposed to the 1971 Constitutional Convention. The orgitnal proposal simply said that access to official records and the right to information "shall be afforded the citizens as may be provided by law." It therefor was not a self-executory provision. It needed statutory implementaion. The draft was later reworded to make the Constitution itself give the right, but subject to statutory limitations.
The significance of this change may be seen when viewed in the light of the pre-1973 case of Subido v. Ozaeta. The question presented before the Court was whether the press, and, for that matter, the public, had a constitutional right to demand the examination of public land records. The Court answered: “We do not believe that this constitutional right [freedom of the press] is in any way involved. The refusal by the respondent does not constitute a restriction upon or censorship of publication. It only affects facilities of publication, and the respondents are correct in saying that freedom of information or freedom to obtain information for publication is not guaranteed by the constitution.” Fortunately, however, the Court finally ruled that the press had a statutory right to examine the records of the Register of Deeds because the interest of the press was real and adequate.
The 1973 Constitution went beyond the Subido case and recognized the right of access to public documents and records as a self-executory constitutional right. The role given to the National Assembly was not to give the right but simply to set limits on the right granted by the Constitution. The right is now recognized as a public right where the real parties in interest are the people. Hence, every citizen has “standing” to challenge any violation of the right and may seek its enforcement by mandamus.
The 1987 Constitution has preserved the 1973 text but with the addition of the phrase "as well as to government research data used as basis for policy development." The amendment came as a reaction to the government practice during the martial law regime of withholding social research data from the knowledge of the public whenever such data contradicted policies which the government wanted to espouse. The reference, however, is to "government research data," that is, to the findings of government funded research and not to the findings of privately funded research over which private proprietary rights might exist.
The constitutional right, however, does not mean that every day is an open house in public offices. The right given by the Constitution is "subject to such limitations as may be provided by law." Thus, while access to official records may not be prohibited, it certainly may be regulated. The regulation can come either from statutory law or from what the Supreme Court has called the "inherent power [of an officer] to control his office and the records under his custody and . . . to exercise [some discretion] as to the manner in which persons desiring to inspect, examine, or copy the record may exercise their rights."
The question then boils down now to determining the scope of official regulatory discretion. This is what the Freedom of Information Bill tries to do. While the Constitution says that the right may be limited by law, the Bill in effect seeks to limit the scope of official regulatory discretion.
The problem, however, lies in determining what matters are of public concern and what are not. For, certainly, every act of a public officer in the conduct of the governmental process is a matter of public concern. Jurisprudence in fact has said that “public concern,” like “public interest,” eludes exact definition and embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen.
It is true that the right, as held by the Court, may be asserted by any citizen. But in the face of the unclarity of the meaning of matters of public concern, every time the right to freedom of information is asserted now, judicial intervention can become necessary. Clearly what is needed is balance. The challenge is how to achieve this balance especially in the face of the recognized right of “executive privilege” which has also been the subject of much dispute in recent months.
17 October 2011
Saturday, October 1, 2011
FISCAL AUTONOMY
The controversy between the Supreme Court and the Budget Office over the unused appropriations for the judiciary is about fiscal autonomy. Fiscal autonomy is a guarantee given by the Constitution to certain units of the government. It is intended as a guarantee of separation of powers and of independence from political agencies. The units that have been given fiscal autonomy are the Constitutional Commissions, the Ombudsman and the judiciary. The language used in the grant of the guarantee is almost identical for all three units. The Supreme Court jealously guards fiscal autonomy.
The guarantee for the Constitutional Commissions says, “The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.” For the Ombudsman it says, “The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.” The provision for the judiciary has an addition not found in the other two: “The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.”
There is a similar provision for local governments although the phrase fiscal autonomy is not used. It says: “Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.” The Supreme Court has had the opportunity to explain the meaning of the phrase “automatically and regularly released.” When President Ramos issued an executive order saying that“Pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal revenue allotment to local government units shall be withheld,” this was challenged as an unconstitutional restriction on local autonomy.
The Supreme Court ruled: “Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means ‘something held back or withheld, often temporarily.’ Hence, the ‘temporary’ nature of the retention by the national government does not matter. Any retention is prohibited.”
The phrase “automatically and regularly released” was also a subject of contention between the Civil Service Commission and the Budget Secretary. The controversy involved the “no report, no release” policy imposed by the Budget Office on funds appropriated for the Civil Service Commission.
In resolving the issue the Court harked back to an earlier decision on the meaning of “automatic release” for local government units relying on the dictionary meaning of “automatic.” “Webster’s Third New International Dictionary defines ‘automatic’ as ‘involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton.’ Further, the word ‘automatically’ is defined as ‘in an automatic manner: without thought or conscious intention.’ Being ‘automatic,’ thus, connotes something mechanical, spontaneous and perfunctory. As such the LGUs are not required to perform any act to receive the ‘just share’ accruing to them from the national coffers. x x x”
The Court concluded: “By parity of construction, ‘automatic release’ of approved annual appropriations to petitioner, a constitutional commission which is vested with fiscal autonomy, should thus be construed to mean that no condition to fund releases to it may be imposed.”
The Budget Commission tried to wiggle out of its predicament claiming that the “no report, no release” was due to a shortfall in revenues. The Court said that such shortfall does not justify compliance with the Constitution and that “[a]n interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory.”
Having said all that, one might ask how the current controversy on unspent funds of the judiciary will be resolved. I anticipate that the resolution will be along the lines of a 1993 Supreme Court Resolution on the judiciary’s fiscal autonomy. The Resolution says: “The Supreme Court may submit to the Department of Budget and Management reports of operation and income, current plantilla of personnel, work and financial plans and similar reports only for recording purposes. The submission thereof concerning funds previously released shall not be a condition precedent for subsequent fund releases.”
Related to all this, of course, is the issue of impoundment, that is, the holding unspent of appropriated funds. It is something done by Presidents as a form of “executive veto.” It was first used by Thomas Jefferson. There is no provision in the Constitution on the subject. The concept has come up in local jurisprudence but the Supreme Court has heretofore refrained from passing judgment on its constitutionality.
Finally, like it or not, the Constitution means what the Supreme Court says it means, until the Supreme Court changes its mind. We know who will referee the controversy between the Supreme Court and the Budget Office.
3 October 2011
The guarantee for the Constitutional Commissions says, “The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.” For the Ombudsman it says, “The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.” The provision for the judiciary has an addition not found in the other two: “The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.”
There is a similar provision for local governments although the phrase fiscal autonomy is not used. It says: “Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.” The Supreme Court has had the opportunity to explain the meaning of the phrase “automatically and regularly released.” When President Ramos issued an executive order saying that“Pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal revenue allotment to local government units shall be withheld,” this was challenged as an unconstitutional restriction on local autonomy.
The Supreme Court ruled: “Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means ‘something held back or withheld, often temporarily.’ Hence, the ‘temporary’ nature of the retention by the national government does not matter. Any retention is prohibited.”
The phrase “automatically and regularly released” was also a subject of contention between the Civil Service Commission and the Budget Secretary. The controversy involved the “no report, no release” policy imposed by the Budget Office on funds appropriated for the Civil Service Commission.
In resolving the issue the Court harked back to an earlier decision on the meaning of “automatic release” for local government units relying on the dictionary meaning of “automatic.” “Webster’s Third New International Dictionary defines ‘automatic’ as ‘involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton.’ Further, the word ‘automatically’ is defined as ‘in an automatic manner: without thought or conscious intention.’ Being ‘automatic,’ thus, connotes something mechanical, spontaneous and perfunctory. As such the LGUs are not required to perform any act to receive the ‘just share’ accruing to them from the national coffers. x x x”
The Court concluded: “By parity of construction, ‘automatic release’ of approved annual appropriations to petitioner, a constitutional commission which is vested with fiscal autonomy, should thus be construed to mean that no condition to fund releases to it may be imposed.”
The Budget Commission tried to wiggle out of its predicament claiming that the “no report, no release” was due to a shortfall in revenues. The Court said that such shortfall does not justify compliance with the Constitution and that “[a]n interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory.”
Having said all that, one might ask how the current controversy on unspent funds of the judiciary will be resolved. I anticipate that the resolution will be along the lines of a 1993 Supreme Court Resolution on the judiciary’s fiscal autonomy. The Resolution says: “The Supreme Court may submit to the Department of Budget and Management reports of operation and income, current plantilla of personnel, work and financial plans and similar reports only for recording purposes. The submission thereof concerning funds previously released shall not be a condition precedent for subsequent fund releases.”
Related to all this, of course, is the issue of impoundment, that is, the holding unspent of appropriated funds. It is something done by Presidents as a form of “executive veto.” It was first used by Thomas Jefferson. There is no provision in the Constitution on the subject. The concept has come up in local jurisprudence but the Supreme Court has heretofore refrained from passing judgment on its constitutionality.
Finally, like it or not, the Constitution means what the Supreme Court says it means, until the Supreme Court changes its mind. We know who will referee the controversy between the Supreme Court and the Budget Office.
3 October 2011
Saturday, September 24, 2011
WHEN IS FAMILY PLANNING ANTI-LIFE
I use the phrase family planning because it is a phrase that covers a broad spectrum of ways of limiting the number of children. It can include abstention from sexual congress intended to beget children. It can include what are called natural methods of preventing conception. It can include artificial means of preventing conception. It also includes abortion. All these contribute to the reduction and regulation of the number of the children that are brought into this world.
In the current debate brought about by the introduction of the RH Bill the question of what is anti-life comes up. It is therefore important to be able to clarify what precisely is meant by being anti-life. In the current debate the phrase anti-life is often used in the most pejorative way. It is used in the sense of being against existing life. Murder, in other words.
But it can also be understood to mean not being willing or not desiring to add more human life to the already crowded population. This would be the stance of a married couple who decide to abstain from the acts that bring about life. To a certain extent this is also the stance of a young man who chooses a celibate life not because he hates children but out of a conviction that he can accomplish better what he feels he is called to do without the burden of raising children. Definitely I would not categorize such persons as being anti-life. They love life so much that they take it upon themselves to contribute in some way or other to the improvement of the quality of life of those who are already born.
We come now to contraception. Is contraception anti-life in the sense of being directed at actual life? The phrase anti-life is an active and not a passive word. The word “anti” in compound word is an active word aimed at life. Thus we must ask when life begins, because before life begins it is beyond the reach of anti-life action.
When does life begin? For me, the starting point in dealing with this very specific question is what the Constitution says. It says that the state “shall protect the life of the unborn from conception.” What this means, in the understanding of the men and women who wrote that Constitution, is that life begins at conception, that is, upon fertilization. Before fertilization there is no life. This is also the view of the Philippine Medical Society and this is the view of John Paul II. John Paul II says that life is so important that we should not do anything that will endanger it. We would be taking at least a very serious risk against life if we terminate development after fertilization.
What this means is that one who practices abstention is not anti-life. The celibate who gives up procreation for a higher calling is not anti-life. The use of contraceptive devises that only prevents fertilization is not anti-life in the sense of being an act of murder. Abortion, in the sense of expulsion of the fertilized ovum at any time after fertilization is anti-life, is abortion and is an act of murder. If life of the unborn is terminated at a stage of viability the crime is infanticide. For that reason the Penal Code and also the proposed RH Bill prohibits and penalizes abortion and infanticide.
I have heard it loosely said that what are being marketed as contraception devices are in fact abortive devices. This is loose talk. If there are such abortive devices being marketed, they should be identified scientifically, not by gossip, and withdrawn from the market. The Food and Drug Administration has the responsibility of ensuring that no abortifacient drugs be marketed. I know of one drug which was withdrawn from the market after being proved before the FDA to be abortifacient. This was the subject of a thesis of a student of mine which she defended, as required for graduation from the Ateneo Law School, before a panel of professors.
Having said all this I must also put on my hat as priest of the Catholic Church. I accept the teaching of the Catholic Church which prohibits not only abortion but also artificial contraception. Yet one might say that through this article I am in fact approving artificial contraception. I am not doing such a thing. Aside from being a Catholic priest in good standing I am also a lawyer and teacher and student of Constitutional Law. What I am doing is to place all this in the context of our constitutionally mandated pluralistic society. Not all citizens of the Philippines are Catholics. Many of them therefore do not consider artificial contraception immoral or anti-life. The teaching of my Church is that I must respect the belief of other religions even if I do not agree with them. That is how Catholics and non-Catholics can live together in harmony. The alternative, which God forbid, is the restoration of the Inquisition.
26 September 2011
In the current debate brought about by the introduction of the RH Bill the question of what is anti-life comes up. It is therefore important to be able to clarify what precisely is meant by being anti-life. In the current debate the phrase anti-life is often used in the most pejorative way. It is used in the sense of being against existing life. Murder, in other words.
But it can also be understood to mean not being willing or not desiring to add more human life to the already crowded population. This would be the stance of a married couple who decide to abstain from the acts that bring about life. To a certain extent this is also the stance of a young man who chooses a celibate life not because he hates children but out of a conviction that he can accomplish better what he feels he is called to do without the burden of raising children. Definitely I would not categorize such persons as being anti-life. They love life so much that they take it upon themselves to contribute in some way or other to the improvement of the quality of life of those who are already born.
We come now to contraception. Is contraception anti-life in the sense of being directed at actual life? The phrase anti-life is an active and not a passive word. The word “anti” in compound word is an active word aimed at life. Thus we must ask when life begins, because before life begins it is beyond the reach of anti-life action.
When does life begin? For me, the starting point in dealing with this very specific question is what the Constitution says. It says that the state “shall protect the life of the unborn from conception.” What this means, in the understanding of the men and women who wrote that Constitution, is that life begins at conception, that is, upon fertilization. Before fertilization there is no life. This is also the view of the Philippine Medical Society and this is the view of John Paul II. John Paul II says that life is so important that we should not do anything that will endanger it. We would be taking at least a very serious risk against life if we terminate development after fertilization.
What this means is that one who practices abstention is not anti-life. The celibate who gives up procreation for a higher calling is not anti-life. The use of contraceptive devises that only prevents fertilization is not anti-life in the sense of being an act of murder. Abortion, in the sense of expulsion of the fertilized ovum at any time after fertilization is anti-life, is abortion and is an act of murder. If life of the unborn is terminated at a stage of viability the crime is infanticide. For that reason the Penal Code and also the proposed RH Bill prohibits and penalizes abortion and infanticide.
I have heard it loosely said that what are being marketed as contraception devices are in fact abortive devices. This is loose talk. If there are such abortive devices being marketed, they should be identified scientifically, not by gossip, and withdrawn from the market. The Food and Drug Administration has the responsibility of ensuring that no abortifacient drugs be marketed. I know of one drug which was withdrawn from the market after being proved before the FDA to be abortifacient. This was the subject of a thesis of a student of mine which she defended, as required for graduation from the Ateneo Law School, before a panel of professors.
Having said all this I must also put on my hat as priest of the Catholic Church. I accept the teaching of the Catholic Church which prohibits not only abortion but also artificial contraception. Yet one might say that through this article I am in fact approving artificial contraception. I am not doing such a thing. Aside from being a Catholic priest in good standing I am also a lawyer and teacher and student of Constitutional Law. What I am doing is to place all this in the context of our constitutionally mandated pluralistic society. Not all citizens of the Philippines are Catholics. Many of them therefore do not consider artificial contraception immoral or anti-life. The teaching of my Church is that I must respect the belief of other religions even if I do not agree with them. That is how Catholics and non-Catholics can live together in harmony. The alternative, which God forbid, is the restoration of the Inquisition.
26 September 2011
Saturday, September 17, 2011
THE LONG ROAD TO THE ICC
The Statute for the International Court will enter into force in the Philippines on 1 November 2011, three months after the Philippine government deposited its instrument of ratification to the Rome Statute of the International Court (ICC). We actually are one of the later joiners.
The ICC treaty itself was born on 17 July 1998 when 120 states adopted the Rome Statute as the basis for establishing a permanent International Criminal Court. It was a historic milestone. The Statute entered into force after 60 countries ratified it on July 1, 2002. The Philippines is the 117th to ratify.
The road to the formation of the Statute had a much earlier start. As early as 1950s it was already considered in the UN. It was, however, not until 1989, after the Cold War had ended, that attention was again drawn to it. The discussion came about when Trinidad and Tobago suggested that the International Law Commission establish an international criminal court to deal with drug trafficking. What came out as a result was a draft that would cover more than just drug trafficking and which would evolve into what was debated on in the Rome Conference of June-July 1998 to eventually become the Statute of the International Criminal Court. Its birth was spurred in part by the creation of the earlier International Criminal Tribunal for Rwanda and the International Criminal Tribunal for Yugoslavia.
The jurisdiction of the International criminal Court, however, does not cover all kinds of criminal offenses. It covers only “the most serious crimes of concern to the international community as a whole.” According to Article 5(1) these are genocide, crimes against humanity, war crimes and the crime of aggression. The Rome Statute describes these crimes in detail and a supplementary text provides the elements of each of the crimes.
Now that the Philippines has become party to the Rome Statute, what are the chances of the Philippines being able to bring cases to the ICC? The preconditions for the exercise of ICC jurisdiction will make such occasions very rare indeed, if at all. The preconditions are that the alleged crime was committed on the territory of a state party to the Statute, that the State of the person accused of the crime is a party to the Statute, and finally that the crime is not being investigated or prosecuted by national authorities or that national authorities are unwilling or incapable of genuinely carrying out the investigation or prosecution.
In other words, the jurisdiction of the ICC is complementary. It is not intended to replace national courts. This flows from a recognition of national sovereignty. The aim of those who drafted the Statute was to create an independent, fair, impartial and effective court.
Postscript. This postscript has nothing to do with the International Criminal Court. In fact it is very parochial in scope. It is a about an ordinance or proposed ordinance from the same barangay that came out with a very controversial ordinance about contraception. This time it is about purifying the barangay population. The ordinance is entitled “Ordinance enforcing the proper use and control of residential houses and lots within Barangay Ayala Alabang, including maintaining records of residents and monitoring transient or temporary residents and providing penalties for the violation thereof.”
Section 1 states the heart of the ordinance: “It shall be the duty and responsibility of all lot owners, homeowners and tenants to ensure that the residential houses they own and occupy be limited strictly for the use of one (1) single family unit up to the fourth civil degree by consanguinity, and their house helpers, i.e., servants, caregivers, gardeners and drivers.” There is also a provision on the uses of empty lots within the barangay.
A Whereas clause seems to indicate that the ordinance was partly inspired by reports of the presence of foreign students under circumstances that do not come under the list of legitimate occupants as found in the Ordinance’s Section 1. My impression, however, is that the terms of Section 1 will effectively exclude all foreigners, except for foreigners who have owned lots in the baranggay prior to the 1935 Constitution. I doubt that there are any such. Foreigners now cannot acquire private lots. Will this restriction on foreigners imposed by a state entity have an international implication?
It will be interesting to watch what will happen to or under this ordinance and whether it will suffer the same fate as the earlier ordinance on contraception.
19 September 2011
The ICC treaty itself was born on 17 July 1998 when 120 states adopted the Rome Statute as the basis for establishing a permanent International Criminal Court. It was a historic milestone. The Statute entered into force after 60 countries ratified it on July 1, 2002. The Philippines is the 117th to ratify.
The road to the formation of the Statute had a much earlier start. As early as 1950s it was already considered in the UN. It was, however, not until 1989, after the Cold War had ended, that attention was again drawn to it. The discussion came about when Trinidad and Tobago suggested that the International Law Commission establish an international criminal court to deal with drug trafficking. What came out as a result was a draft that would cover more than just drug trafficking and which would evolve into what was debated on in the Rome Conference of June-July 1998 to eventually become the Statute of the International Criminal Court. Its birth was spurred in part by the creation of the earlier International Criminal Tribunal for Rwanda and the International Criminal Tribunal for Yugoslavia.
The jurisdiction of the International criminal Court, however, does not cover all kinds of criminal offenses. It covers only “the most serious crimes of concern to the international community as a whole.” According to Article 5(1) these are genocide, crimes against humanity, war crimes and the crime of aggression. The Rome Statute describes these crimes in detail and a supplementary text provides the elements of each of the crimes.
Now that the Philippines has become party to the Rome Statute, what are the chances of the Philippines being able to bring cases to the ICC? The preconditions for the exercise of ICC jurisdiction will make such occasions very rare indeed, if at all. The preconditions are that the alleged crime was committed on the territory of a state party to the Statute, that the State of the person accused of the crime is a party to the Statute, and finally that the crime is not being investigated or prosecuted by national authorities or that national authorities are unwilling or incapable of genuinely carrying out the investigation or prosecution.
In other words, the jurisdiction of the ICC is complementary. It is not intended to replace national courts. This flows from a recognition of national sovereignty. The aim of those who drafted the Statute was to create an independent, fair, impartial and effective court.
Postscript. This postscript has nothing to do with the International Criminal Court. In fact it is very parochial in scope. It is a about an ordinance or proposed ordinance from the same barangay that came out with a very controversial ordinance about contraception. This time it is about purifying the barangay population. The ordinance is entitled “Ordinance enforcing the proper use and control of residential houses and lots within Barangay Ayala Alabang, including maintaining records of residents and monitoring transient or temporary residents and providing penalties for the violation thereof.”
Section 1 states the heart of the ordinance: “It shall be the duty and responsibility of all lot owners, homeowners and tenants to ensure that the residential houses they own and occupy be limited strictly for the use of one (1) single family unit up to the fourth civil degree by consanguinity, and their house helpers, i.e., servants, caregivers, gardeners and drivers.” There is also a provision on the uses of empty lots within the barangay.
A Whereas clause seems to indicate that the ordinance was partly inspired by reports of the presence of foreign students under circumstances that do not come under the list of legitimate occupants as found in the Ordinance’s Section 1. My impression, however, is that the terms of Section 1 will effectively exclude all foreigners, except for foreigners who have owned lots in the baranggay prior to the 1935 Constitution. I doubt that there are any such. Foreigners now cannot acquire private lots. Will this restriction on foreigners imposed by a state entity have an international implication?
It will be interesting to watch what will happen to or under this ordinance and whether it will suffer the same fate as the earlier ordinance on contraception.
19 September 2011
Saturday, September 10, 2011
FORGIVENESS & SUNDAY SERMONS
9/11 Remembered. Yesterday Americans celebrated the tenth anniversary of the terrorist attack that brought down two New York towers and killed hundreds of civilians. One can find in YouTube quite a number of videos depicting the event from different angles. Reflections on the event can also be found in various media outlets. Meanwhile the United States government has issued warnings that more terrorist attacks could be coming.
The reactions of those directly affected by the event have been very varied. Some still harbor anger and resentment against the faceless perpetrators of the crime and often focus their resentment indiscriminately against Muslims in general. Others have learned to forgive, even if they cannot forget, and they warn against generalizing judgment bout Muslims.
There is a widely reviewed PBS video entitled “Forgiveness: A time to Love and a Time to Hate.” (http://www.pbs.org/programs/forgiveness/) It is an exploration of various stories ranging “from the Amish families for the 2006 shooting of their children in Nickel Mines, Pennsylvania; the struggle of '60s radicals to cope with the serious consequences of their violent acts of protest; the shattering of a family after the mother abandons them, only to return seeking forgiveness; the legacy and divisiveness of apartheid and the aftermath of the Truth and Reconciliation Commission hearings in South Africa; the penitential journey of a modern-day Germany, confronting the horrific acts of the Holocaust; and the riveting stories of survivors of the unimaginably, brutal Rwandan genocide.”
A Jesuit writer who was about to review the video was warned by another Jesuit who said: “Don’t be like so many religious voices who urge reconciliation at the drop of a hat, often enough before they have even acknowledged any real and painful conflict!” A reviewer also wrote: “Once a uniquely religious word, forgiveness now is changing and there is no consensus about what it is and what it is becoming. However you define forgiveness, its power is real — and never more so when it struggles with the unforgivable. Inevitably, as Whitney reveals [in the PBS video], its new role in the world raises serious and complex questions: why is forgiveness in the air today; what does that say about us and the times we live in; what are its power, its limitations and in some instances its dangers; has it been cheapened or deepened... or both?”
I have never experienced being a victim of an atrocious offense myself. Hence, I cannot really say from experience what it means to be willing to forgive and how capable I am of forgiving. In the gospel reading for yesterday, Peter asked Our Lord whether one must be willing to forgive seven times. We might say that Peter was already being overly generous. But Our Lord corrected him saying seventy times seven times. Of course we know that Jesus would later say from the Cross, “Father, forgive them for they know not what they do.”
I can only pray that, if ever I should be confronted with a challenge similar to those recounted in the PBS video, I will have at least the seven-time generosity of Peter.
About Sunday Sermons. In talking with friends I often hear complaints about the quality and length of Sunday sermons. I smile when I recall that when I was a kid, my father, who was a town physician, would walk out of the church after the gospel to visit his patients and still be back for the Credo! I did not complain then because at that time, when I reached a certain age, my mother did not object to my walking out to talk with friends during the sermon. I guess that was part of how I got my vocation to the priesthood!
Recently I came across an article which can keep doctors from walking out to visit their patients during the sermon. Let me share it with fellow priests. I quote:
“Eight minutes, tops. That is how long an average Sunday sermon should last, according to the Rev. Roy Shelly of the Loyola Institute for Ministry in New Orleans. On weekdays, sermons should be even shorter: three to five minutes. The goal is not to shorten the liturgy, as some restless pew sitters may wish, but to be succinct and stay on point. It is much more difficult to speak for eight minutes, Shelly says, than to preach for 20. In the words of Archbishop Fulton Sheen: ‘If you want me to speak for an hour, I’m ready. If you want me to speak for 10 minutes, I’ll need a week.’
“In workshops with preachers, Father Shelly employs a neat teaching tool. First he asks the preacher to summarize his message in one sentence. After the sermon is delivered, parishioners are asked to write down a one-sentence summary of what they heard. These are collected and reviewed later by the preacher.
“In addition to brevity, preachers should be persuaded to stay focused on the week’s readings. Avoid using the pulpit to speak about service trips or the March for Life. There are other times and places to address such subjects. Well prepared, Scripturally grounded sermons are essential to a good liturgy. They could both satisfy a spiritual thirst and bring disaffected Catholics back to the pews.”
Good luck!
12 September 2011
The reactions of those directly affected by the event have been very varied. Some still harbor anger and resentment against the faceless perpetrators of the crime and often focus their resentment indiscriminately against Muslims in general. Others have learned to forgive, even if they cannot forget, and they warn against generalizing judgment bout Muslims.
There is a widely reviewed PBS video entitled “Forgiveness: A time to Love and a Time to Hate.” (http://www.pbs.org/programs/forgiveness/) It is an exploration of various stories ranging “from the Amish families for the 2006 shooting of their children in Nickel Mines, Pennsylvania; the struggle of '60s radicals to cope with the serious consequences of their violent acts of protest; the shattering of a family after the mother abandons them, only to return seeking forgiveness; the legacy and divisiveness of apartheid and the aftermath of the Truth and Reconciliation Commission hearings in South Africa; the penitential journey of a modern-day Germany, confronting the horrific acts of the Holocaust; and the riveting stories of survivors of the unimaginably, brutal Rwandan genocide.”
A Jesuit writer who was about to review the video was warned by another Jesuit who said: “Don’t be like so many religious voices who urge reconciliation at the drop of a hat, often enough before they have even acknowledged any real and painful conflict!” A reviewer also wrote: “Once a uniquely religious word, forgiveness now is changing and there is no consensus about what it is and what it is becoming. However you define forgiveness, its power is real — and never more so when it struggles with the unforgivable. Inevitably, as Whitney reveals [in the PBS video], its new role in the world raises serious and complex questions: why is forgiveness in the air today; what does that say about us and the times we live in; what are its power, its limitations and in some instances its dangers; has it been cheapened or deepened... or both?”
I have never experienced being a victim of an atrocious offense myself. Hence, I cannot really say from experience what it means to be willing to forgive and how capable I am of forgiving. In the gospel reading for yesterday, Peter asked Our Lord whether one must be willing to forgive seven times. We might say that Peter was already being overly generous. But Our Lord corrected him saying seventy times seven times. Of course we know that Jesus would later say from the Cross, “Father, forgive them for they know not what they do.”
I can only pray that, if ever I should be confronted with a challenge similar to those recounted in the PBS video, I will have at least the seven-time generosity of Peter.
About Sunday Sermons. In talking with friends I often hear complaints about the quality and length of Sunday sermons. I smile when I recall that when I was a kid, my father, who was a town physician, would walk out of the church after the gospel to visit his patients and still be back for the Credo! I did not complain then because at that time, when I reached a certain age, my mother did not object to my walking out to talk with friends during the sermon. I guess that was part of how I got my vocation to the priesthood!
Recently I came across an article which can keep doctors from walking out to visit their patients during the sermon. Let me share it with fellow priests. I quote:
“Eight minutes, tops. That is how long an average Sunday sermon should last, according to the Rev. Roy Shelly of the Loyola Institute for Ministry in New Orleans. On weekdays, sermons should be even shorter: three to five minutes. The goal is not to shorten the liturgy, as some restless pew sitters may wish, but to be succinct and stay on point. It is much more difficult to speak for eight minutes, Shelly says, than to preach for 20. In the words of Archbishop Fulton Sheen: ‘If you want me to speak for an hour, I’m ready. If you want me to speak for 10 minutes, I’ll need a week.’
“In workshops with preachers, Father Shelly employs a neat teaching tool. First he asks the preacher to summarize his message in one sentence. After the sermon is delivered, parishioners are asked to write down a one-sentence summary of what they heard. These are collected and reviewed later by the preacher.
“In addition to brevity, preachers should be persuaded to stay focused on the week’s readings. Avoid using the pulpit to speak about service trips or the March for Life. There are other times and places to address such subjects. Well prepared, Scripturally grounded sermons are essential to a good liturgy. They could both satisfy a spiritual thirst and bring disaffected Catholics back to the pews.”
Good luck!
12 September 2011
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