The Secretive Plea Bargain

The report about the plea bargain struck by General Garcia with his prosecutors must have shaken the officials of the Office of the Ombudsman. When the gag order came from the Sandiganbayan, there was obvious jubilation among the three officials of the Ombudsman’s office who announced the gag in a press conference. Why the jubilation?

The little that has filtered out about the bargain has created shockwaves in the Metro Manila community. The President was furious. The military establishment expressed extreme disappointment. Former Ombudsman Marcelo declared it illegal. If the filtered report was meant to be a trial balloon, the prosecutors should get the message if they are not dense

But what is causing the commotion. From the little that has come out in media there does seem to be legitimate cause for people to be infuriated. Garcia was charged with the crime of plunder for illegally amassing some three hundred million pesos. The minimum amount for the crime of plunder is only fifty million. It seems that Garcia will be allowed to escape the penalty for plunder by pleading guilty, not to plunder, but to indirect bribery in the amount of about one-sixth of the plunder charge against him.

The reasons? We do not yet know. But we should know the details of the arrangement because constitutionally the people have the right to demand information about matters of public concern. This is very much a matter of public concern and the Sandiganbayan should life its gag order.

But what is a plea bargain and is it legal? It is an arrangement entered into between the accused and the prosecution for the accused to plead guilty to a lesser offense than charged. An interesting if humorous early example of plea bargain is the case of Galileo who is reported to have gotten “house arrest from the Inquisition in exchange for his reciting penitential psalms weekly and recanting Copernican heresies.” It must have been some kind of sacramental penance.

Our Rules of Court allow plea bargain. Rule 116 says: “The accused, with the consent of the offended party and the fiscal, may be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court.”

Two things are worth noting. First, the consent of the offended party is needed. You might say that the prosecution represents the offended party in a criminal case, that is, the people. But the President, who has constitutional control over the judgment of prosecutors, has already expressed his displeasure. That should be enough to disallow the bargain before it even reaches the Sandiganbayan. Moreover, as I see it, the most closely offended by the crime is the military establishment, and the military is in no mood to give its consent.

Second, approval by the Sandiganbayan is needed. It is not clear what the standards for approval or disapproval are. We will be watching how the Sandiganbayan will exercise its discretion on the subject.

Incidentally, I do not know how often plea bargain is used in Philippine prosecutions. I can see that, at least for small cases, it can be an instrument for declogging our courts. But the Garcia case is no small matter. Although the Rules of Court allow plea bargaining, the Garcia case is certainly the most controversial one to attract public attention. The Sandiganbayan will be on the dock on this subject.

Plea bargain as practiced now seems to have originated from the United States where it is widely used and is widely written about. It is said that roughly 90% of criminal cases in the US end in a bargained conviction for a lower offense. Those who defend the practice say that the “efficiency gained by plea bargains outweighs their evils.”

A leading case on plea bargaining is Bordenkircher v Hayes. Snatches from the decision written by Justice Stewart give us an idea why the US Supreme Court has consistently upheld the constitutionality of plea bargain. "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." “Plea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.”

Justice Stewart’s opinion, however, was basically a rejection of the defendant’s claim that plea bargaining was characterized by vindictiveness. The claim was that the threat of prosecution for a more serious offense was vindictive and therefore violative of due process. In Garcia’s situation, however, it is hard to see vindictiveness as motivation for the invitation to plead to a lesser offense.

27 December 2010

Amnesty Case & Webb Case

Judge Oscar Pimentel must have agonized about what to do with the coup d’etat case before him in the face of the amnesty proclamation. He must have anticipated pros and cons regarding whatever decision he might make. In the end he chose to defer promulgation of his decision.

My guess is that, if he had decided to promulgate his judgment, it would have been a judgment of guilty. But the judge, it seems, did not want to have a guilty judgment staining the career of the soldiers. Thus he gave them the opportunity to avoid legal stain through the benefit of amnesty.

If, however, his judgment were one of acquittal, it would have been in complete harmony with the amnesty proclamation. No stain would have touched the soldiers.

However, in my view, it would not have been that bad if a judgment of guilty had been promulgated. For one, the offense the soldiers are charged with is not such a disgraceful one. They probably consider it a feather in their cap. And they enjoyed some degree of public support for what they did. For another, the obvious sentiment of President Aquino is to set them free. The fact that he issued an amnesty proclamation is indication that he is ready to grant them pardon. Thus, if conviction had happened, an absolute pardon would have erased their guilt instantaneously and would have given them the right to immediate release just like Webb and company.

The amnesty proclamation, moreover, compared with pardon, has its disadvantages. Under amnesty, the benefit they expect will not come immediately. They will have to apply for amnesty before the amnesty commission and show that they are entitled to the benefits of amnesty. Moreover, -- and this is the more tricky part – current jurisprudence requires that one applying for amnesty should plead guilty to the offense charged. Some prospective amnesty beneficiaries might not want this.

In the interest of clarifying the jurisprudence on amnesty, however, I welcome the current amnesty proclamation. To my mind, the requirement of a plea of guilty is not altogether clear. The requirement was first brought up in a dissenting opinion in the Barrioquinto case arising under the 1946 amnesty proclamation of President Roxas. It became obiter dictum in subsequent amnesty cases. Is it really doctrine now?

The Vizconde Case

Understandbly the supporters of the Vizconde family are unhappy. There are calls for the reinvestigation of the case. What reinvestigation is possible? Specifically, is a reconsideration of the acquittal possible? The Public Attorney’s Office, surprisingly, thinks so. One reason given is the fact that four justices had dissented and that therefore this has created doubt about the correctness of the decision.

What I know about cases like this, however, is the basic constitutional law that an acquittal, right or wrong, may not be reviewed. As one observed, that doctrine is Consti 101. A reconsideration would place the accused in prohibited second jeopardy. "No error, however, flagrant, committed by the court against the state, can be reserved by it for decision by the Supreme Court when the defendant has once been placed in jeopardy and discharged even though the discharge was the result of the error committed." A judgment in a criminal case once final cannot be reopened. A judgment of acquittal is immediately final. “A single prosecution for any offense is all the law allows. It protects an accused from harassment, enables him to treat what had transpired as a closed chapter in his life, either to exult in his freedom or to be resigned to whatever penalty is imposed, and is a bar to unnecessary litigation, in itself time consuming and expense-producing for the state as well."

If at all, an acquittal can only be the subject of a petition for certiorari. But the only ground for such petition would be grave abuse of discretion by a judge amounting to lack or excess of jurisdiction. In such a situation, since the acquittal would be deemed to have been made without jurisdiction, it really would not be an acquittal at all and would not terminate the case. Certiorari would not be a new case but merely a continuation of the unfinished original prosecution.

In the Vizconde case, the PAO officer who is recommending reconsideration would have a hard time showing grave abuse of discretion by seven justices. The concept of grave abuse of discretion means “such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.”

Another call for review, coming from the Department of Justice, as I understand it, is not about reviewing the acquittal of Webb and company. It is about reviewing the murder case for the purpose of finding who should really be prosecuted for the crime if it is not yet barred by prescription. Webb and company can no longer be the object of this investigation even if the Supreme Court decision did not say that they were innocent. The Court had simply said that there was reasonable doubt about their guilt. But innocent or not, they already are protected by the rule on double jeopardy. The DOJ would have to look for other persons to investigate.

20 December 2010

The SC and the Truth Commission

Upon reading the various opinions condemning the Truth Commission, I was reminded of a line from Hamlet: "The lady doth protest too much, methinks."

Collectively, the justices threw everything, including the kitchen sink, against the Executive. One concurring opinion already sees in the title “Truth Commission” a violation of due process because, he says, its version of the truth will mislead the public (as if the public were a gullible lot), will sap the credibility of the Ombudsman (as if it needed more sapping), violate the right of those of who are touched by the telling of truth (as if current investigators do not publish their version of truth), and thus deny them a fair trial. Wow! Amazing how a treasure trove of unconstitutionality can be mined in a mere title!

The ponencia of Justice Mendoza, however, is fairly straightforward and is summarized by Justice Nachura thus:

“1. Petitioners have legal standing to file the instant petitions; petitioner Biraogo only because of the transcendental importance of the issues involved, while petitioner Members of the House of Representatives have standing to question the validity of any official action which allegedly infringes on their prerogatives as legislators;

“2. The creation of the Truth Commission by E. O. No. 1 is not a valid exercise of the President’s power to reorganize under the Administrative Code of 1987;

“3. However, the President’s power to create the herein assailed Truth Commission is justified under Section 17,[1] Article VII of the Constitution, albeit what may be created is merely an ad hoc Commission;

“4. The Truth Commission does not supplant the Ombudsman or the Department of Justice (DOJ) nor erode their respective powers; and

“5. Nonetheless, E.O. No. 1 is unconstitutional because it transgresses the equal protection clause enshrined in Section 1, Article III of the Constitution.”

Of course, to taste the full flavor of the opinions, one must read them in full. Nevertheless, within the limited space of a column, let me just discuss two points raised in the Mendoza ponencia.

First, reliance on the “faithful execution of law law clause” found in Article VII, Section 17 is also affirmed by Nachura, Carpio, and implicitly by Carpio-Morales, Sereno, Abad and, I assume, by the three justices who concurred with the ponencia but did not write separate opinions (Velasco, del Castillo and Villarama). Thus I would count nine as possibly defending the position that the President could create the Truth Commission at least by authority of the “faithful execution clause.”

I myself would agree with that position, but on the understanding that the Commission is merely an investigatory and recommendatory body without power to punish for contempt (as also affirmed by Carpio).

Second, violation of the equal protection clause is affirmed by a majority of the justices. I find this difficult to understand in the light of the four jurisprudential requirements needed to make classification reasonable. These are well known to law students.

First, the EO’s classification is based on substantial distinction. The past administrations (from Aguinaldo to Estrada) are distinct either because they have already been investigated by their successors or because including all past administrations would mean including offenses whose prescriptive periods have already lapsed.

Second, the classification is germane to the purpose of the law. The purpose of the EO is to achieve success in identifying corruption and this would be severely impeded if the scope of the investigation must cover 111 years of presidential history.

Third, the classification applies not only to present condition but also to future conditions. Section 17 of the EO can include the future. The “under-inclusiveness of remedial measures is not unconstitutional, especially when the purpose can be attained through inclusive future legislation or regulation.”

Fourth, the classification includes everyone belonging to the class. The classification of the previous administration as a class by itself is a recognition of the “the reality that unlike with administrations long gone, the current administration will most likely bear the immediate consequence of the policies of the previous administration” and of the “reality that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, are more easily established in the regime that immediately precede the current administration.”

For the validity of classification all that is required is reasonableness.

Finally, the concluding words of Justice Carpio are worth noting: “Neither the Constitution nor any existing law prevents the incumbent President from redeeming his campaign pledge to the Filipino people. In fact, the incumbent President’s campaign pledge is merely a reiteration of the basic State policy, enshrined in Section 27, Article II of the Constitution, that: ‘The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.’”

13 December 2010

Church and State

I am glad that one of my readers has expressed his unhappiness about my views on church and state. He has given me a chance to make him happy, or perhaps more unhappy.

In a piece which he entitled “Noted constitutionalist Bernas misses again” he particularly laments that I seem to have failed or chosen not to see the fundamental principle that the “separation of church and state shall be inviolable.” He seems to forget that, although this is a principle that came to us with the American regime, the sentence found in Article II, Section 6 of the 1987 Constitution, only appeared for the first time in the 1973 Constitution. And I have always told my students that this sentence in Article II is a superfluity. It adds nothing to what has been elaborated in other parts of the Constitution even before 1973 and in a long line of Philippine and American jurisprudence.

The phrase, incidentally, appears under the Declaration of Principles. They are just that, principles which guide government in the conduct of affairs. The principle of separation of church and state commands government about what it may not do about churches. It is not a guide for the conduct of private individuals nor of the Church. The rule of conduct for the Church is in Canon Law.

Moreover, I usually avoid the use of the phrase “separation of church and state” and its cousin “wall of separation” because they can lead to exaggerated notions suggesting that there can be no contact between church and state. How can there be no contact when they live in the same world? Hence, I prefer to use the original language of the Constitution which speaks of “non-establishment of religion.”

But even “non-establishment” has been read in varying ways by jurisprudence. At one end, relevant to American federalism but not to the Philippine unitary system, is the view that the clause merely insulates state policy on religion from federal interference. At the other end are formulations of how the government may legislate on matters that touch on religion. One reading says that the non-establishment clause prohibits the state from passing "laws which aid one religion, aid all religions, or prefer one religion over another." Other jurisprudential readings nuance this more carefully to say that (1) the non-establishment clause prohibits only direct support of institutional religion but not benefits incidentally accruing to churches and church agencies through support given to members; (2) both direct and indirect aid to religion are prohibited especially if the support involves preference of one religion over another or preference of religion over irreligion (3) state aid to the secular goals of religious institutions may be given provided it will not involve “excessive entanglement with religion.” In other words, there is no simplistic reading of the non-establishment clause or separation of church and state.

My reader also laments that I support the “amazing unconstitutional act, that a prelate, say, a cardinal, could run for public office.” What is amazing, however, is the contrary view. The Constitution itself says: “No religious test shall be required for the exercise of civil or political rights.” Prohibiting a priest or cardinal from running for office means imposing on them a religious test for the exercise of their political rights. That is a constitutional no-no.

My reader also teaches that there is violation of separation of church and state when “public officials would not decline a Red Mass, or the bishops are unable to restrain themselves from offering it to the politicians.” He would require our public officials to be irreligious and he would curtail the right of bishops to promote religious values.

This brings me to a basic principle that must not be forgotten when reading the Constitution. It is this, that, for the state, the Constitution sets up the structures and powers of government and enumerates some non-inherent powers; but for the individual person it is a guarantee of fundamental rights. The Bill of Rights, where the non-establishment provision is found, is a limitation on the powers of the state but a guarantee of the rights of individuals. In the matter of religion, this is obvious. The Constitution commands the state not to establish any religion (no law shall be passed respecting an establishment of religion) but it guarantees the right of the individual to the free exercise of religious profession and worship. One of the purposes, in fact, of the invention of “non-establishment” is the protection of individuals from oppressive state religions. Non-establishment, in other words, is in service of free exercise. Hence, when there is conflict between the two, jurisprudence favors free exercise. For instance, our Supreme Court has spoken of “benevolent neutrality” in approaching religious conflicts.

My reader also cites the example of revered elders in Constitutional Law – Recto, Tañada, Carreon, Cruz. There are others too. I am certain that they are for non-establishment and against religious abuses; but I am equally certain that they will defend the free exercise of religion.

6 December 2010

Proclamation 75: Amnesty

If I were a rebel being offered amnesty, I may have to consider a perplexing choice. Should I admit guilt or plead innocence? It is generally believed now that jurisprudence requires one who wants to avail of amnesty to admit his guilt. Is that really the law and, if it is, does it admit of exceptions? My view, however, is that the need to admit guilt is not a firmly established rule.

The 1946 amnesty proclamation issued by President Roxas with the concurrence of Congress covered members of the guerilla forces who had committed crimes in the course of their guerilla activities. In the case of Barrioquinto v Fernandez the Court said: “There is no necessity for an accused to admit his responsibility for the commission of a criminal act before a court or Amnesty Commission may investigate and extend or not to him the benefits of amnesty. The fact that he pleads not guilty or that he has not committed the act with which he is charged, does not necessarily prove that he is not guilty thereof. Notwithstanding his denial, the evidence for the prosecution or complainant may show the contrary, as it is generally the case in criminal proceedings, and what should in such a case be determined is whether or not the offense committed is of political character. The plea of not having committed the offense made by an accused simply means that he can not be convicted of the offense charged because he is not guilty thereof, and, even if the evidence would show that he is, because he has committed it in furtherance of the resistance to the enemy or against persons aiding in the war efforts of the enemy, and not for purely political motives.”

For the Court in the case, therefore, what Penal Code offense the accused committed was not the important factor but rather whether the offense was committed “in furtherance of the resistance to the enemy or against persons aiding in the war efforts of the enemy, and for purely political motives.”

Even then, however, this view of the Court was not unanimously held. Justice Tuazon had dissented and in a later decision he wrote an obiter dictum thus: “The writer of this decision maintained in previous decisions, contrary to the view of the majority of the Court, that it is rank inconsistency for one to justify an act, or seek forgiveness for an act, which according to him, he has not committed; that amnesty presupposes the commission of a crime and that when an accused says he has not committed a crime he cannot have any use for amnesty; that where an amnesty proclamation imposes certain conditions, as in this case, it is incumbent upon the accused to prove the existence of such conditions; that a petition for amnesty is in the nature of a plea of confession and avoidance, under which principle the pleader has to confess the allegations against him before he can be allowed to set out matters which, if true, would defeat the action.”

This was repeated in a later case, again obiter, which according to the opinion revealed an "almost unbelievable orgy of bloody executions, reminiscent of the French Revolution."

Finally, however, in Vera v. People, a 1963 decision, the need for admission of guilt seems to have been officially recognized as a prerequisite for availing of the benefit of amnesty. Should this be applied to the mutineers against the Arroyo administration?

The said Vera v. People case, however, does not seem to be sure of the sweeping applicability of the rule requiring admission of guilt. Immediately after affirming the rule, the Court said: “At any rate, the facts established before the Commission do not bring this case within the terms of Amnesty Proclamation No. 8. Note that said proclamation extends its provisions to ‘all persons who committed any act penalized under the Revised Penal Code in furtherance of the resistance to the enemy or against persons aiding in the war effort of the enemy.’ As found by the Commission, the killing of the deceased (Lozañes) was not in furtherance of the resistance movement, but was due to the rivalry between the Hunter's Guerrilla, to which he belonged, and the Vera's Guerrilla of petitioners.” In other words, the real reason for the denial of amnesty was not that the accused did not admit guilt but rather that the offense was not covered by the amnesty proclamation.

This brings us to the mutineers against the Arroyo administration. They do not seem to be accused of having committed any other crime than that of mutiny against Arroyo. It seems to me that in their case it would be pointless to ask them whether indeed they committed mutiny. They went through elaborate ceremonies which were meant to be symbolic of their noble goal. They seem to have considered their deed a patriotic feather in their cap and they will willingly assert that, yes, we did, even if we now regret having done it.

It seems to me therefore that the need to admit guilt should apply only when the offense alleged is something that can be done for motives that may have nothing to do with defeating a declared enemy. The admission enables the court to determine more easily whether the act is a proper object of amnesty.

29 November 2010

About Plagiarism

The plagiarism case against Justice Mariano del Castillo has become a cause célèbre and noble souls are accusing institutions or persons who have remained silent of being cowards or traitors to justice. Bully for you, heroic souls of this land of the brave! But let me say my bit about the issue without accusing anybody of being ignoble. Nor would I be speaking in behalf of anybody but myself. (In the atmosphere of independent minds in a university, it is difficult to formulate a position that can command the support of all.)

The Supreme Court has made the decision (still subject to reconsideration) that indeed there was copying and that there was no perfect and meticulous attribution to the author of copied materials. But the Court concluded that there was no reprehensible act. Why? “On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action.”

Was the Court saying something new when it said, in the context of the plagiarism case, that only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action? In support of this statement the Court cited two earlier decisions involving lower court judges. Neither of them, however, was about plagiarism.

However, should intention be central to plagiarism? In a collection of essays entitled Copyright and Piracy: an Interdisciplinary Critique, (Cambridge University Press), an article entitled “Inspiration or infringement: the plagiarist in court,” the author makes this comparison between infringement of copyright and plagiarism: “. . . the question of intention is irrelevant to a charge of copyright infringement, but its role in relation to plagiarism is less clear. Copyright infringement, in its civil form, is a strict liability offense. . . . . In the case of plagiarism, by contrast, Randall asserts, ‘Identifying plagiarism entails ascribing to an agent a series of guilty or fraudulent intentions, the necessity to show intent, in order to establish guilt, or at least degrees of it, is by far the most important of all criteria for establishing plagiarism.’ Intention is relevant not just in the sense that the copying is deliberate, but also in terms of a further intention, sometimes referred to in criminal law as an ulterior intent, to claim the credit by passing the work as one’s own.”

But is intent always required? The author goes on to add: “While some institutional statements explicitly includes unintentional copying and non-attribution within their definition of plagiarism, the centrality of the element of deceit or bad faith suggests that, at least outside the academic sphere (where, as Groom observes, the concern is really with cheating rather than plagiarism in its literary or artistic context) intention should be key to a charge of plagiarism.”

Outside the academic sphere! This perhaps should assuage the fear of those in the academic world that the Supreme Court’s definition of plagiarism in the case might be extended to the academe. As one Federal court decision put it: “Please note that, while not all academic infractions involve fraud, all are violations of the University's standards and will normally result in disciplinary penalties.”

I might also add another quotation from the article I cited above. “In her book Pragmatic Plagiarism, Marilyn Randall identifies plagiarism as a pragmatic, rather than a textual category, meaning it is principally determined by a wide-variety of extra-textual criteria that constitute the aesthetic., institutional and cultural contexts of production and reception of the work.”

For this reason, it seems to me that it should be no surprise if scholastic plagiarism should be treated differently from judicial plagiarism.

Where then does this leave us as far as the Supreme Court case is concerned? What will the final outcome be?

First, I do not think that the Court will change its mind about the centrality of intention in judicial plagiarism.

However, I would not be surprised, but would be pleased, should the Supreme Court clearly state that what has been said about judicial plagiarism is not meant to apply to the academic sphere. This hopefully would assuage the concern of people in the academe. They can continue to penalize both intentional and unintentional plagiarism.

Second, I do not see how the Court can avoid saying that there was copying both of “ideas” and of “expression.” The evidence of borrowing is just too obvious.

Third, will the Court maintain its original position that in the case of Justice del Castillo, copying notwithstanding, there was no malicious intent? As the Court already said, “The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.” Was this indispensable element present in what the Justice did?

The pleadings of both parties in this case will be making meticulous inquiry into whether the failure to make attribution or full attribution, (detailed in Justice Sereno’s dissent) or the manner or circumstances of the failure of attribution (described in the Per curiam opinion), amounted or not to intent to pass off what was copied as one’s own. I will await the Court’s final judgment.

22 November 2010

About Plagiarism

The plagiarism case against Justice Mariano del Castillo has become a cause célèbre and noble souls are accusing institutions or persons who have remained silent of being cowards or traitors to justice. Bully for you, heroic souls of this land of the brave! But let me say my bit about the issue without accusing anybody of being ignoble. Nor would I be speaking in behalf of anybody but myself. (In the atmosphere of independent minds in a university, it is difficult to formulate a position that can command the support of all.)

The Supreme Court has made the decision (still subject to reconsideration) that indeed there was copying and that there was no perfect and meticulous attribution to the author of copied materials. But the Court concluded that there was no reprehensible act. Why? “On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action.”

Was the Court saying something new when it said, in the context of the plagiarism case, that only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action? In support of this statement the Court cited two earlier decisions involving lower court judges. Neither of them, however, was about plagiarism.

However, should intention be central to plagiarism? In a collection of essays entitled Copyright and Piracy: an Interdisciplinary Critique, (Cambridge University Press), an article entitled “Inspiration or infringement: the plagiarist in court,” the author makes this comparison between infringement of copyright and plagiarism: “. . . the question of intention is irrelevant to a charge of copyright infringement, but its role in relation to plagiarism is less clear. Copyright infringement, in its civil form, is a strict liability offense. . . . . In the case of plagiarism, by contrast, Randall asserts, ‘Identifying plagiarism entails ascribing to an agent a series of guilty or fraudulent intentions, the necessity to show intent, in order to establish guilt, or at least degrees of it, is by far the most important of all criteria for establishing plagiarism.’ Intention is relevant not just in the sense that the copying is deliberate, but also in terms of a further intention, sometimes referred to in criminal law as an ulterior intent, to claim the credit by passing the work as one’s own.”

But is intent always required? The author goes on to add: “While some institutional statements explicitly includes unintentional copying and non-attribution within their definition of plagiarism, the centrality of the element of deceit or bad faith suggests that, at least outside the academic sphere (where, as Groom observes, the concern is really with cheating rather than plagiarism in its literary or artistic context) intention should be key to a charge of plagiarism.”

Outside the academic sphere! This perhaps should assuage the fear of those in the academic world that the Supreme Court’s definition of plagiarism in the case might be extended to the academe. As one Federal court decision put it: “Please note that, while not all academic infractions involve fraud, all are violations of the University's standards and will normally result in disciplinary penalties.”

I might also add another quotation from the article I cited above. “In her book Pragmatic Plagiarism, Marilyn Randall identifies plagiarism as a pragmatic, rather than a textual category, meaning it is principally determined by a wide-variety of extra-textual criteria that constitute the aesthetic., institutional and cultural contexts of production and reception of the work.”

For this reason, it seems to me that it should be no surprise if scholastic plagiarism should be treated differently from judicial plagiarism.

Where then does this leave us as far as the Supreme Court case is concerned? What will the final outcome be?

First, I do not think that the Court will change its mind about the centrality of intention in judicial plagiarism.

However, I would not be surprised, but would be pleased, should the Supreme Court clearly state that what has been said about judicial plagiarism is not meant to apply to the academic sphere. This hopefully would assuage the concern of people in the academe. They can continue to penalize both intentional and unintentional plagiarism.

Second, I do not see how the Court can avoid saying that there was copying both of “ideas” and of “expression.” The evidence of borrowing is just too obvious.

Third, will the Court maintain its original position that in the case of Justice del Castillo, copying notwithstanding, there was no malicious intent? As the Court already said, “The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.” Was this indispensable element present in what the Justice did?

The pleadings of both parties in this case will be making meticulous inquiry into whether the failure to make attribution or full attribution, (detailed in Justice Sereno’s dissent) or the manner or circumstances of the failure of attribution (described in the Per curiam opinion), amounted or not to intent to pass off what was copied as one’s own. I will await the Court’s final judgment.

22 November 2010

TheRH Talking Points

Not too long ago a group of us three Jesuits published what we proposed as talking points on the controversy about the RH Bill. Apparently the venture at initiating dialogue is succeeding. Let me comment on a number of points brought up by some respondents.

First, we hear it said that clearly medical science equates conception with fertilization. True, but other medical authorities speak of implantation as the beginning of pregnancy. Who is right?

For my part, I prefer not to enter into the debate among medical authorities. But let me say something about the Constitution. For me, the meaning of conception in the Constitution is fertilization. The drafters did not mean to make a scientific judgment. Rather, they thought that in the face of disagreement among experts in medical science, they would rather play it safe on the side of life. This, I believe, is also the moral teaching of John Paul II’s Evangelium Vitae: “. . . what is at stake is so important that, from the standpoint of moral obligation, the mere probability that a human person is involved [in the fertilized ovum] would suffice to justify an absolutely clear prohibition of any intervention aimed at killing a human embryo.”

Second, it has been said that sociological studies and medical studies attest to the damage caused by artificial contraception. However, it cannot be denied that the main opposition to artificial contraception is predominantly based on religious grounds. And the debate is going on within a pluralist state system. In this context, I hold that it is not legitimate for the state to impose on non-Catholics what is predominantly a Catholic rule of conduct.

Third, there have been two negative reactions to the “two track” proposal of the Talking Points. One says that the state would be funding contraception which is per se evil. But the view that it is per se evil is contradicted by non-Catholics who, as I noted above, may not be forced by the state to turn Catholic in their actions.

Another reaction, which I find more interesting although not novel, is that a two-track system would be funding a special concession to a small group for purely religious reasons. I guess the key phrase here is “for purely religious reasons.”

Clearly, the reasoning behind such position is that according to the Constitution public money may not be used for religious purposes. To start with, I would approach this objection by pointing out that there are two religion provisions in the Constitution: the non-establishment clause and the free exercise clause. The prohibition on the use of public money for religious purposes flows from the non-establishment clause.

The question I would ask is: In case of conflict between the non-establishment clause and the free-exercise clause, which should prevail? I have always taught that the non-establishment clause is in service of the free exercise clause. In other words, the state should not prefer one religion over others because history attests that such preference usually impairs the free exercise of religion of those who are not preferred. This is the reason, for instance, why, in spite of the non-establishment clause, the Constitution allows that public money be used for the salaries of chaplains in the military and leprosaria. The rule allows soldiers and lepers whose movements are limited to be able to practice their religion.

Incientally, while our Constitution has an explicit provision allowing salaries for military chaplains, the US Constitution does not. Nevertheless it allows salaries for military chaplains to insure the free exercise of religion.

I suggest that the expenses involved in the “two track approach” can be justified by the argument similar to the justification of salaries for military chaplains – free exercise of religion. The expense is not for promoting religion but for protecting the right of health workers to the free exercise of their religion while doing their civic duty.

Moreover, it is not true to say that any public expense that might benefit religion is always prohibited. There are allowable uses of public money that can have the effect of benefiting religion.

Early in Philippine history the government put out a postage stamp depicting a Eucharistic Congress of the Catholic church. This was challenged as an illegitimate use of public money. But the Court said that it was justified on the argument that whatever benefit the Catholic church might receive was only incidental to the secular goal of promoting knowledge about the Philippines. The incidental benefit to the church did not make the expenditure illegal.

Similarly, the grant of a large amount of money for the construction of a science laboratory in a Catholic school was allowed in spite of the fact that the grant freed the Catholic school’s other funds for religious use. The grant for the secular purpose of promoting science an incidental benefit to the religious mission of the school but was legal.

Along similar lines it can be said that the “two track” system will protect the freedom of religion of Catholic health workers even as they are required to promote the goals of the RH Bill. The benefit is directly for individuals and for the promotion of the goals of the law and only incidentally for the benefit of religion, if at all. (Although this might disappoint bishops and priests who are ready to become martyrs!)

15 November 2010

Amnesty

November is traditionally the month in which we remember our beloved dead. We naturally remember our beloved dead with a tinge of sadness but also with hope because we believe in the resurrection of the dead, the springtime of life. In the northern hemisphere autumn comes in November when the flowers and leaves begin to drop and the grass grows dry. Autumn augurs death. But there is also the expectation of springtime when life will burst again in the fields.

I thought, therefore, that this is also a good time to talk about amnesty through which the Constitution allows the President to remember in a special way those whom we might call the “living dead.” Amnesty gives new life.

The Constitution has armed the President with the power of executive clemency. The power granted is a tacit admission that human institutions are imperfect and that there are infirmities in the administration of justice. The power therefore exists as an instrument for correcting these infirmities and for mitigating whatever harshness might be generated by a too strict application of the law. And in a flawed juridical system where decisions are long in coming and leave detainees languishing in prison, amnesty can shorten the deprivation of liberty. Besides, amnesty can also be used as a bargaining chip in efforts to unify various political forces.

Clemency is not a function of the judiciary; it is an executive function. Thus it is that Article 5 of the Revised Penal Code provides that whenever a strict application of the provisions of the law will result in undue harshness to the offender, the duty of the judge is to impose the proper penalty, however harsh it may be, but he is enjoined to recommend to the President the exercise of executive clemency.

The two principal clemency instruments are pardon and amnesty. There are important differences between the two. First, pardon can be granted only after final conviction. For this reason the Oakwood mutineers and others cannot be given pardon. Amnesty, however, may be granted before conviction or even before charges are filed. Second, pardon may be given for any kind of offense, whereas amnesty is generally granted for political offenses. Third, absolute pardon is effective even if not accepted and conditional pardon needs acceptance (because the condition of the pardon offered might be more onerous than the penalty itself.) On the other hand amnesty not only needs acceptance but also, according to current jurisprudence, the person accepting amnesty must admit guilt. Fourth, pardon is discretionary with the President whereas amnesty needs the concurrence of Congress. Fifth, pardon is usually given to individuals whereas amnesty is given to a class of offenders. Finally, pardon simply removes the penalty, whereas amnesty, like Baptism in relation to original sin, erases the offense itself. Thus, it can be granted even after conviction.

This last distinction, however, is not very precise. Jurisprudence also says "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense . . . it makes him, as it were, a new man, and gives him a new credit and capacity."

Early jurisprudence on pardon was received from Chief Justice Marshall who said: “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court . . . . A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.” Philippine jurisprudence has modified this. Here acceptance is required only in conditional pardon.

Amnesty also comes from American jurisprudence. Under American jurisprudence, the power to grant amnesty is considered merely an aspect of the pardoning power. "Pardon includes amnesty," was the American Court's ruling. Later, the Court added in another that the distinction between pardon and amnesty was "one rather of philological interest than of legal importance." As already pointed out, however, in Philippine law the distinction between pardon and amnesty is of legal importance because of the existing constitutional text. Under the Constitution, amnesty may be given only with the concurrence of a majority of all the members of Congress and pardon may be given only after final conviction.

When President Aquino made a proclamation extending amnesty to detained mutineers, it was said by some that the President was intruding into the jurisdiction of the court trying the mutineers. I do not see it that way. President and court have separate powers. The amnesty declaration does not prevent the court from proceeding to final judgment nor would conviction by the court prevent the effect of amnesty. At any rate, the judge in the mutiny cases has decided to defer has decision until the amnesty issue is settled.

8 November 2010

The SC in the Public Eye

The Supreme Court we now have is still referred to as the Arroyo Court for the simple reason that almost all its members are appointees of the former President Arroyo. It has been that way for the past couple of years and the public has watched how the Court handled cases involving Gloria Macapagal Arroyo. The principal cases of interest were the executive privilege cases, the redistricting cases, and the midnight appointment cases principally regarding the appointment of a Chief Justice.

The public is still watching the unfinished midnight appointment cases. Meanwhile we are also awaiting how the Court will answer the challenge of the UP faculty and perhaps later Arroyo’s refusal to testify before the Sandiganbayan.

Executive privilege cases. Let us review key decisions that happened in the recent past. Still fresh in the public memory is the ZTE scandal. A key figure in the Court proceeding was Secretary Neri. Neri was seen as a person who could testify about the involvement of Arroyo in the ZTE deal. When summoned to answer questions that could lead to involving President Arroyo in the deal, Neri was given executive authority to claim privilege.

The Court said that presidential communications to close-in advisers was presumed to be covered by executive privilege. Hence the Supreme Court honored the claim of privilege and upheld Neri’s refusal to answer three specific questions.

The answer to the barred questions could have revealed criminal activity. Criminal activity cannot be covered by executive privilege. Moreover, criminal activity can be ferreted out from witnesses claiming priviege through a closed door hearing that does not risk exposing what is truly privileged. No such hearing transpired. The net effect was that the President was practically given free rein to decide what was privileged or not.

The Dato Arroyo case. This case received practically no publicity. It involved the creation of a new representative district to accommodate Dato Arroyo. The Court reasoned that only cities need a population of 250,000 to become a representative district and that therefore other districts could be as small in population as a law might decide. Totally forgotten was the cardinal democratic rule of proportionality or one-man-one-vote.

Midnight appointments. Another occasion worth watching was the Court’s interpretation of what has become popularly known as “midnight appointments.” The business of appointing a Chief Justice during the prohibited period was one of them and this is already a closed matter. But there are still unfinished “midnight issues.” How will the Court interpret the meaning of “appointment”?

In other words, does “appointment” consist of two steps, namely “nomination” (which the appointing authority alone can perform) and “acceptance” (which the nominee alone can do), or does it consist merely of “nomination”?

President Arroyo announced appointments prior to the prohibited period. It would seem that some of those nominated made their acceptance before the prohibited period but others made it during the prohibited period. This, I believe, is the object of President Aquino’s Executive Order No. 2 and this it seems is what made Aquino go ballistic in response to the Court’s status quo order.

My own view is that a nomination prior to acceptance is not yet an appointment but merely an offer. I take the constitutional prohibition to mean that offer and acceptance of a nomination must be made before the prohibited periodrdic. We await the Court’s verdict.

* * * *

The UP Challenge. 37 members of the UP Law Faculty have been ordered to show cause why they should not be held in contempt for their strong criticism of the Court’s decision on the plagiarism case involving Justice Mariano del Castillo. For me this is a very unfortunate Court order. The Court has been struggling to rebuild its tarnished image before the legal world and now it comes out with a blow against freedom of expression.

Dissenting justices freely and strongly and even scathingly criticize majority opinions. This feature of our judicial system – the fact that it allows dissent -- is a source of strength of the system. It can draw even more strength from disagreement, even vigorous disagreement, from outside, especially when it comes from respected jurists. In my view it will serve the Court well if it should withdraw the show cause order against the UP faculty.

* * * * *

Arroyo before the Sandiganbayan. Gloria Macapagal Arroyo has sought to be excused from appearing before the sandiganbayan in the criminal case against Secretary Romulo Neri. Yes, Neri of ZTE, What can one say about this?

Let me say, first of all, that the rule is that an accused may refuse to take the witness stand but that a witness who is not an accused may not refuse. Buch witness who is not an accused can refuse to answer only when asked an incriminating question. On the basis of what exemption is Ms. Macapagal refusing to testify? Executive immunity? This, I suppose, will eventually have to be sorted out by the Arroyo Court.

1 November 2010

The SC in the Public Eye

The Supreme Court we now have is still referred to as the Arroyo Court for the simple reason that almost all its members are appointees of the former President Arroyo. It has been that way for the past couple of years and the public has watched how the Court handled cases involving Gloria Macapagal Arroyo. The principal cases of interest were the executive privilege cases, the redistricting cases, and the midnight appointment cases principally regarding the appointment of a Chief Justice.

The public is still watching the unfinished midnight appointment cases. Meanwhile we are also awaiting how the Court will answer the challenge of the UP faculty and perhaps later Arroyo’s refusal to testify before the Sandiganbayan.

Executive privilege cases. Let us review key decisions that happened in the recent past. Still fresh in the public memory is the ZTE scandal. A key figure in the Court proceeding was Secretary Neri. Neri was seen as a person who could testify about the involvement of Arroyo in the ZTE deal. When summoned to answer questions that could lead to involving President Arroyo in the deal, Neri was given executive authority to claim privilege.

The Court said that presidential communications to close-in advisers was presumed to be covered by executive privilege. Hence the Supreme Court honored the claim of privilege and upheld Neri’s refusal to answer three specific questions.

The answer to the barred questions could have revealed criminal activity. Criminal activity cannot be covered by executive privilege. Moreover, criminal activity can be ferreted out from witnesses claiming priviege through a closed door hearing that does not risk exposing what is truly privileged. No such hearing transpired. The net effect was that the President was practically given free rein to decide what was privileged or not.

The Dato Arroyo case. This case received practically no publicity. It involved the creation of a new representative district to accommodate Dato Arroyo. The Court reasoned that only cities need a population of 250,000 to become a representative district and that therefore other districts could be as small in population as a law might decide. Totally forgotten was the cardinal democratic rule of proportionality or one-man-one-vote.

Midnight appointments. Another occasion worth watching was the Court’s interpretation of what has become popularly known as “midnight appointments.” The business of appointing a Chief Justice during the prohibited period was one of them and this is already a closed matter. But there are still unfinished “midnight issues.” How will the Court interpret the meaning of “appointment”?

In other words, does “appointment” consist of two steps, namely “nomination” (which the appointing authority alone can perform) and “acceptance” (which the nominee alone can do), or does it consist merely of “nomination”?

President Arroyo announced appointments prior to the prohibited period. It would seem that some of those nominated made their acceptance before the prohibited period but others made it during the prohibited period. This, I believe, is the object of President Aquino’s Executive Order No. 2 and this it seems is what made Aquino go ballistic in response to the Court’s status quo order.

My own view is that a nomination prior to acceptance is not yet an appointment but merely an offer. I take the constitutional prohibition to mean that offer and acceptance of a nomination must be made before the prohibited periodrdic. We await the Court’s verdict.

* * * *

The UP Challenge. 37 members of the UP Law Faculty have been ordered to show cause why they should not be held in contempt for their strong criticism of the Court’s decision on the plagiarism case involving Justice Mariano del Castillo. For me this is a very unfortunate Court order. The Court has been struggling to rebuild its tarnished image before the legal world and now it comes out with a blow against freedom of expression.

Dissenting justices freely and strongly and even scathingly criticize majority opinions. This feature of our judicial system – the fact that it allows dissent -- is a source of strength of the system. It can draw even more strength from disagreement, even vigorous disagreement, from outside, especially when it comes from respected jurists. In my view it will serve the Court well if it should withdraw the show cause order against the UP faculty.

* * * * *

Arroyo before the Sandiganbayan. Gloria Macapagal Arroyo has sought to be excused from appearing before the sandiganbayan in the criminal case against Secretary Romulo Neri. Yes, Neri of ZTE, What can one say about this?

Let me say, first of all, that the rule is that an accused may refuse to take the witness stand but that a witness who is not an accused may not refuse. Buch witness who is not an accused can refuse to answer only when asked an incriminating question. On the basis of what exemption is Ms. Macapagal refusing to testify? Executive immunity? This, I suppose, will eventually have to be sorted out by the Arroyo Court.

1 November 2010

Religion and theRH Bills

Let me get back to religion in the RH Bills because it is mainly religion which is causing much of the disagreement.

There are two clauses in the Constitution dealing with religion: the non-establishment clause and the free exercise clause.

The non-establishment clause is a command which says that the state may not choose any religion as the dominant religion. (Incidentally, as I have often pointed out, this command is addressed to the state and not to churches.)

The free exercise clause means more than just the freedom to believe. It also means the freedom to act or not to act according to what one believes. And this freedom is violated when one is compelled to act against one’s belief or is prevented from acting according to one’s belief.

In our society, while people of good faith may find near unanimity on the matter of abortion as defined in the Penal Code, there clearly is sharp division in the matter of contraception. The division is drawn largely along religious lines. The official Catholic teaching, for instance, is that only natural family planning is allowed, even if I am aware that many Catholics do not follow this teaching. The religion of many non-Catholics, however, prescribes a different set of rules on sexual morality. And, as much as Catholics, they too have the right of moral equality and moral freedom under our democratic system.

At the moment the government, under the supervision of the Department of Health, makes contraceptive pills and devises available without distinction as to whether those who avail of them are Catholics or non-Catholics. We are assured by the Palace that the President is firm in his decision not to stop what the Department of Health is doing. The President recognizes the right of everyone to exercise responsible parenthood in accordance with their moral beliefs. Clearly, the President may not, on religious grounds, stop people from acting according to their moral belief if their acts are neither prohibited by law nor harmful to public welfare. I would also add that the President is not defying Catholic teaching because Catholic teaching, for a pluralist society, requires that government interpret the common good of the country not only according to the guidelines of whatever religion may be the majority but also according to the effective good of all the members of the community, including those belonging to minority religions. For that reason it is good that the President has invited other religions to the dialogue.

(I understand, however, that since there is as yet no law on the subject, some local officials do not allow local offices to dispense contraceptive devises.)

In analyzing the RH Bills we have to ask if they contain provisions which have the effect of requiring persons to act against their religious or moral belief. The law would be particularly harsh if it carries administrative or criminal penalties. It would almost amount to religious persecution by the government. If there are such offending provisions, I propose that remedies be incorporated that will allow freedom of action to one who objects on the basis of personal conscience.

I make special mention of any provision which punishes those who disagree with or campaign against provisions they do not agree with. Such provision would smack of dictatorship which has no place in our democratic system.

I also make mention of the requirement of sex education. Sex education is a matter closely related to religious morality. Our Constitution allows the teaching of religion to children in public schools, but it requires that it be done only with the written consent of parents. A similar respect for the desire of parents should be provided for in the reproductive health law. Our Constitution says: “The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.”

As for sex education in private schools, any law on this should respect academic freedom which is also protected by the Constitution.

I have also scanned the penal provisions of the proposed law. My initial impression is that, if passed, they will encounter problems in implementation along lines of criminal due process. Government cannot dictate what is morally right anymore than it can dictate what is religiously acceptable, except to the extent needed to protect life, health and security of citizens or to safeguard compelling state interests.

It might be argued that, while all this is based on the equality of human beings, the fact is that humans are unequal in almost every dimension – physically, intellectually, and morally. But experience tells us that regimes which do not honor the equality of persons become oppressive and end up imposing untold suffering on people.

Finally, it is important to recall that, while adherence to religious liberty is theologically founded and ecumenical, theology is not the only reason for adherence to the principle. There are additional reasons. In fact it has been said that Vatician II’s affirmation of religious liberty in Dignitatis Humanae was as much motivated by historical experience as by theology. We who have not experienced massive religious persecution must learn from the lessons of history.

25 October 2010

The Right to Life of the Unborn

Very pertinent to the debate about reproduction rights is the right to life. Our Constitution says that the State “shall equally protect the life of the mother and the life of the unborn from conception.” Insofar as the “life of the unborn” is concerned, is this provision merely a reaffirmation of the prohibition of abortion? In order to answer this question, we must begin by looking at what abortion means in the Penal Code.

Article 256 RPC penalizes a “person who shall intentionally cause an abortion.” Although the law itself does not define what abortion means, commentators are clear about what it does mean. For instance, my Criminal Law professor, the late Luis B. Reyes, following local and Spanish commentators, says that under our law abortion means the expulsion of the fetus before the sixth month or before the term of its viability. If the fetus has reached viability, the crime is no longer abortion but infanticide.

Similarly, abortion as a penal offense prohibited by Canon Law (c. 1398) is defined as “any action resulting directly in the ejection of an immature fetus from the womb of the mother.”

It is worthy of note that RH 5043 says that “nothing in this Act changes the law on abortion, as abortion remains a crime and is punishable.” Does this therefore mean that RH 5043 intends to protect only a fetus already in the mother’s womb to the exclusion of the fetus before implantation? This is not clear in RH 5043 even if the Guiding Principles (Section 3) seem to suggest broader protection of rights not limited to life in the mother’s womb.

At any rate we do have the constitutional provision which says that the State “shall equally protect the life of the mother and the life of the unborn from conception.” My understanding of this provision is that it protects life even before the fertilized ovum reaches the mother’s womb. Why do I say this?

Our constitutional provision was discussed and crafted at a time when many were aware of the United States Supreme Court decision in Roe v. Wade which allowed abortion up to the sixth month of pregnancy. This is contrary to both our Penal Code and Canon Law. The prevention of the adoption of the doctrine in Roe v. Wade was certainly one of the purposes of the provision. But Commission deliberations indicate that the provision goes beyond Roe v. Wade.

The unborn's entitlement to protection begins "from conception," that is, from the moment of conception. The moment of conception is popularly understood as the moment of fertilization which takes place outside the mother’s womb. The intention of the Constitution is to protect life from its beginning, and the assumption is that the gradual development of human life begins at conception and that conception takes place at fertilization (even if medical literature seems to see conception as the moment of implantation). Although the constitutional provision does not assert with certainty when human life precisely begins, it reflects the view that, in dealing with the protection of life, it is necessary to take the safer approach. For this reason the Constitution commands that protection be given from conception, that is, from the fertilization when biological life begins.

In other words, from the moment of fertilization there already is life. The life is neither that of the father or of the mother. It is its own life. The life will not become human if it is not already human at fertilization. In fact its personal characteristics would already be determined, as genetic science confirms.

From this it can be seen that the intention of the Constitution is to protect the “life” even before implantation in the uterus, that is, from the moment biological life begins. The constitutional intent, in other words, is to play it safe lest human life be destroyed and to impose the protection even before implantation in the uterus, even if there is as yet no “person” who can be the subject of rights.

However, this is not to say that at no time may the life of the fetus be risked. It may, when balanced against the life, health and security of the mother – or what constitutional law calls “compelling state interest.”

This brings us to the question whether the reproductive bill allows or even prescribes the use of birth control methods that have the effect of blocking a fertilized zygote from being implanted in the uterus or of expelling a fertilized zygot before implantation. This is a question which, while it has constitutional, religious and moral implications, must first be answered by medical science. Has the scientific aspect of the question been sufficiently explored in the course of the debates over the reproductive health bill? My impression is that it has not. The practical implication of this is that there may be need to analyze scientifically what kind of contraceptive means are now being dispensed to determine whether they are merely contraceptive or already have the effect of preventing implantation and consequent loss of a fertilized zygot.

18 October 2010