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

SOME ISSUES ABOUT THE RH BILLS

In my column last week I ended with a postscript saying that this week I would write about the question whether a public official may impose his religious belief on those who follow a different set of beliefs. In response one of my readers wrote saying that he could not wait for what I had to say. And another suggested a piece on whether church can tell government what to do.

Actually, however, what I have to say is very simple; that is, very simple for those who accept that one of the fundamental tenets which our country lives by is the free exercise of religious profession and worship. I believe that freedom of religious profession and worship is a right of everyone no matter how bizarre his or her religious beliefs might be and provided that the externalization of one’s belief does no harm to any one.

Briefly, I would say that President Aquino should not prevent people from practicing responsible parenthood according to their religious belief nor may churchmen compel President Aquino, by whatever means, to prevent people from acting according to their religious belief.

I, and other churchmen I know, go by the teaching of the Compendium on the Social Teaching of the Church which says: “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.” I am glad, therefore, that President Aquino wants to bring non-Catholics into the dialogue.

In 2008 the debate on the Reproductive Health Bill was started but did not end. It was shelved for a while to give way to concerns about election. Now the debate has started again. I understand that there are now six or seven different bills filed in the House of Representatives all about reproductive health.

I sympathize with President Aquino who is being pushed into a corner by well-meaning people who believe that various provisions of proposed RH Bills are paving the path through which the Filipino people would be led to eternal damnation. What is my own take on the subject?

Of course, I am against eternal damnation for anybody. But I believe that we must be resigned to a long drawn out debate. Much as people would like their opponents to shut up, they will not shut up. The debate now is in media and in the House of Representatives. It is also beginning in the Senate. And even if Congress succeeds in crafting a bill which the President may be willing to sign, its various provisions will very likely take more time of the Supreme Court than the Cityhood laws have taken.

This should surprise no one because religion and the Constitution are very much involved in the debate. Religion and the Constitution are very much at the heart of the life of our people. Besides, debatable scientific terms and sociological issues are also involved.

In 2009 it was difficult for many, myself included, to be totally for or totally against the RH Bill because it had many facets. Today I am still awaiting the consolidated version of the various RH bills that have already been filed. I anticipate that what divided people then would still be present in whatever bill may finally come out for debate. The most that I would like to do now is to identify and enumerate some of the matters about which we will certainly disagree among ourselves.

I begin with the right to life. When does human life begin? We probably are all agreed that man must not destroy human life. Our Constitution protects life “from conception.” There is some indication in the deliberations of the 1987 Constitution Commission that this means “from fertilization”. But there are contrary views. Who will decide which view is correct?

The determination about the beginning of human life will also be relevant to the debate on abortion. Clearly abortion is prohibited and penalized by law. But when does abortion take place? At what stage of the reproductive process will interruption be considered an offense against life? At fertilization or only after implantation? Are there birth control devices or pills which are abortifacient? If so, in what way? There is debate about the abortifacient effect of some birth control means. Who is to settle this debate – Congress? Courts? Science? Church? Rallyists? I understand that the various pharmaceutical and medical literature on this are conflictive.

There is also debate about how and who should teach sexual morality to children. Sexual morality is very much an aspect of religion. But various religions differ in the their teaching about sexual morality. Should the state dictate what to follow and determine how this should be taught in schools, public or private? And what should be the role of parents in this? The Constitution recognizes the primary right of parents in the rearing of the youth.

Earlier versions of the RH bill also contained impositions on employers regarding the reproductive health of employees and also penal provisions. All these and more will need much discussion.

There are those who are threatening to mobilize groups into rallies against RH the bills. Rallies are good for election campaigns and other political objectives. But they are hardly the suitable vehicle for a rational examination of conflicting moral issues.

11 October 2010

SOME ISSUES ABOUT THE RH BILLS

In my column last week I ended with a postscript saying that this week I would write about the question whether a public official may impose his religious belief on those who follow a different set of beliefs. In response one of my readers wrote saying that he could not wait for what I had to say. And another suggested a piece on whether church can tell government what to do.

Actually, however, what I have to say is very simple; that is, very simple for those who accept that one of the fundamental tenets which our country lives by is the free exercise of religious profession and worship. I believe that freedom of religious profession and worship is a right of everyone no matter how bizarre his or her religious beliefs might be and provided that the externalization of one’s belief does no harm to any one.

Briefly, I would say that President Aquino should not prevent people from practicing responsible parenthood according to their religious belief nor may churchmen compel President Aquino, by whatever means, to prevent people from acting according to their religious belief.

I, and other churchmen I know, go by the teaching of the Compendium on the Social Teaching of the Church which says: “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.” I am glad, therefore, that President Aquino wants to bring non-Catholics into the dialogue.

In 2008 the debate on the Reproductive Health Bill was started but did not end. It was shelved for a while to give way to concerns about election. Now the debate has started again. I understand that there are now six or seven different bills filed in the House of Representatives all about reproductive health.

I sympathize with President Aquino who is being pushed into a corner by well-meaning people who believe that various provisions of proposed RH Bills are paving the path through which the Filipino people would be led to eternal damnation. What is my own take on the subject?

Of course, I am against eternal damnation for anybody. But I believe that we must be resigned to a long drawn out debate. Much as people would like their opponents to shut up, they will not shut up. The debate now is in media and in the House of Representatives. It is also beginning in the Senate. And even if Congress succeeds in crafting a bill which the President may be willing to sign, its various provisions will very likely take more time of the Supreme Court than the Cityhood laws have taken.

This should surprise no one because religion and the Constitution are very much involved in the debate. Religion and the Constitution are very much at the heart of the life of our people. Besides, debatable scientific terms and sociological issues are also involved.

In 2009 it was difficult for many, myself included, to be totally for or totally against the RH Bill because it had many facets. Today I am still awaiting the consolidated version of the various RH bills that have already been filed. I anticipate that what divided people then would still be present in whatever bill may finally come out for debate. The most that I would like to do now is to identify and enumerate some of the matters about which we will certainly disagree among ourselves.

I begin with the right to life. When does human life begin? We probably are all agreed that man must not destroy human life. Our Constitution protects life “from conception.” There is some indication in the deliberations of the 1987 Constitution Commission that this means “from fertilization”. But there are contrary views. Who will decide which view is correct?

The determination about the beginning of human life will also be relevant to the debate on abortion. Clearly abortion is prohibited and penalized by law. But when does abortion take place? At what stage of the reproductive process will interruption be considered an offense against life? At fertilization or only after implantation? Are there birth control devices or pills which are abortifacient? If so, in what way? There is debate about the abortifacient effect of some birth control means. Who is to settle this debate – Congress? Courts? Science? Church? Rallyists? I understand that the various pharmaceutical and medical literature on this are conflictive.

There is also debate about how and who should teach sexual morality to children. Sexual morality is very much an aspect of religion. But various religions differ in the their teaching about sexual morality. Should the state dictate what to follow and determine how this should be taught in schools, public or private? And what should be the role of parents in this? The Constitution recognizes the primary right of parents in the rearing of the youth.

Earlier versions of the RH bill also contained impositions on employers regarding the reproductive health of employees and also penal provisions. All these and more will need much discussion.

There are those who are threatening to mobilize groups into rallies against RH the bills. Rallies are good for election campaigns and other political objectives. But they are hardly the suitable vehicle for a rational examination of conflicting moral issues.

11 October 2010

SOME ISSUES ABOUT THE RH BILLS

In my column last week I ended with a postscript saying that this week I would write about the question whether a public official may impose his religious belief on those who follow a different set of beliefs. In response one of my readers wrote saying that he could not wait for what I had to say. And another suggested a piece on whether church can tell government what to do.

Actually, however, what I have to say is very simple; that is, very simple for those who accept that one of the fundamental tenets which our country lives by is the free exercise of religious profession and worship. I believe that freedom of religious profession and worship is a right of everyone no matter how bizarre his or her religious beliefs might be and provided that the externalization of one’s belief does no harm to any one.

Briefly, I would say that President Aquino should not prevent people from practicing responsible parenthood according to their religious belief nor may churchmen compel President Aquino, by whatever means, to prevent people from acting according to their religious belief.

I, and other churchmen I know, go by the teaching of the Compendium on the Social Teaching of the Church which says: “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.” I am glad, therefore, that President Aquino wants to bring non-Catholics into the dialogue.

In 2008 the debate on the Reproductive Health Bill was started but did not end. It was shelved for a while to give way to concerns about election. Now the debate has started again. I understand that there are now six or seven different bills filed in the House of Representatives all about reproductive health.

I sympathize with President Aquino who is being pushed into a corner by well-meaning people who believe that various provisions of proposed RH Bills are paving the path through which the Filipino people would be led to eternal damnation. What is my own take on the subject?

Of course, I am against eternal damnation for anybody. But I believe that we must be resigned to a long drawn out debate. Much as people would like their opponents to shut up, they will not shut up. The debate now is in media and in the House of Representatives. It is also beginning in the Senate. And even if Congress succeeds in crafting a bill which the President may be willing to sign, its various provisions will very likely take more time of the Supreme Court than the Cityhood laws have taken.

This should surprise no one because religion and the Constitution are very much involved in the debate. Religion and the Constitution are very much at the heart of the life of our people. Besides, debatable scientific terms and sociological issues are also involved.

In 2009 it was difficult for many, myself included, to be totally for or totally against the RH Bill because it had many facets. Today I am still awaiting the consolidated version of the various RH bills that have already been filed. I anticipate that what divided people then would still be present in whatever bill may finally come out for debate. The most that I would like to do now is to identify and enumerate some of the matters about which we will certainly disagree among ourselves.

I begin with the right to life. When does human life begin? We probably are all agreed that man must not destroy human life. Our Constitution protects life “from conception.” There is some indication in the deliberations of the 1987 Constitution Commission that this means “from fertilization”. But there are contrary views. Who will decide which view is correct?

The determination about the beginning of human life will also be relevant to the debate on abortion. Clearly abortion is prohibited and penalized by law. But when does abortion take place? At what stage of the reproductive process will interruption be considered an offense against life? At fertilization or only after implantation? Are there birth control devices or pills which are abortifacient? If so, in what way? There is debate about the abortifacient effect of some birth control means. Who is to settle this debate – Congress? Courts? Science? Church? Rallyists? I understand that the various pharmaceutical and medical literature on this are conflictive.

There is also debate about how and who should teach sexual morality to children. Sexual morality is very much an aspect of religion. But various religions differ in the their teaching about sexual morality. Should the state dictate what to follow and determine how this should be taught in schools, public or private? And what should be the role of parents in this? The Constitution recognizes the primary right of parents in the rearing of the youth.

Earlier versions of the RH bill also contained impositions on employers regarding the reproductive health of employees and also penal provisions. All these and more will need much discussion.

There are those who are threatening to mobilize groups into rallies against RH the bills. Rallies are good for election campaigns and other political objectives. But they are hardly the suitable vehicle for a rational examination of conflicting moral issues.

11 October 2010

Some Issues about the RH Bills

In my column last week I ended with a postscript saying that this week I would write about the question whether a public official may impose his religious belief on those who follow a different set of beliefs. In response one of my readers wrote saying that he could not wait for what I had to say. And another suggested a piece on whether church can tell government what to do.

Actually, however, what I have to say is very simple; that is, very simple for those who accept that one of the fundamental tenets which our country lives by is the free exercise of religious profession and worship. I believe that freedom of religious profession and worship is a right of everyone no matter how bizarre his or her religious beliefs might be and provided that the externalization of one’s belief does no harm to any one.

Briefly, I would say that President Aquino should not prevent people from practicing responsible parenthood according to their religious belief nor may churchmen compel President Aquino, by whatever means, to prevent people from acting according to their religious belief.

I, and other churchmen I know, go by the teaching of the Compendium on the Social Teaching of the Church which says: “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.” I am glad, therefore, that President Aquino wants to bring non-Catholics into the dialogue.

In 2008 the debate on the Reproductive Health Bill was started but did not end. It was shelved for a while to give way to concerns about election. Now the debate has started again. I understand that there are now six or seven different bills filed in the House of Representatives all about reproductive health.

I sympathize with President Aquino who is being pushed into a corner by well-meaning people who believe that various provisions of proposed RH Bills are paving the path through which the Filipino people would be led to eternal damnation. What is my own take on the subject?

Of course, I am against eternal damnation for anybody. But I believe that we must be resigned to a long drawn out debate. Much as people would like their opponents to shut up, they will not shut up. The debate now is in media and in the House of Representatives. It is also beginning in the Senate. And even if Congress succeeds in crafting a bill which the President may be willing to sign, its various provisions will very likely take more time of the Supreme Court than the Cityhood laws have taken.

This should surprise no one because religion and the Constitution are very much involved in the debate. Religion and the Constitution are very much at the heart of the life of our people. Besides, debatable scientific terms and sociological issues are also involved.

In 2009 it was difficult for many, myself included, to be totally for or totally against the RH Bill because it had many facets. Today I am still awaiting the consolidated version of the various RH bills that have already been filed. I anticipate that what divided people then would still be present in whatever bill may finally come out for debate. The most that I would like to do now is to identify and enumerate some of the matters about which we will certainly disagree among ourselves.

I begin with the right to life. When does human life begin? We probably are all agreed that man must not destroy human life. Our Constitution protects life “from conception.” There is some indication in the deliberations of the 1987 Constitution Commission that this means “from fertilization”. But there are contrary views. Who will decide which view is correct?

The determination about the beginning of human life will also be relevant to the debate on abortion. Clearly abortion is prohibited and penalized by law. But when does abortion take place? At what stage of the reproductive process will interruption be considered an offense against life? At fertilization or only after implantation? Are there birth control devices or pills which are abortifacient? If so, in what way? There is debate about the abortifacient effect of some birth control means. Who is to settle this debate – Congress? Courts? Science? Church? Rallyists? I understand that the various pharmaceutical and medical literature on this are conflictive.

There is also debate about how and who should teach sexual morality to children. Sexual morality is very much an aspect of religion. But various religions differ in the their teaching about sexual morality. Should the state dictate what to follow and determine how this should be taught in schools, public or private? And what should be the role of parents in this? The Constitution recognizes the primary right of parents in the rearing of the youth.

Earlier versions of the RH bill also contained impositions on employers regarding the reproductive health of employees and also penal provisions. All these and more will need much discussion.

There are those who are threatening to mobilize groups into rallies against RH the bills. Rallies are good for election campaigns and other political objectives. But they are hardly the suitable vehicle for a rational examination of conflicting moral issues.

11 October 2010

Excommunication, Anyone?

The threat of excommunication may have been denied, but people are still asking about the what and how of excommunication. I hope the following can help.

First of all, what is excommunication. It is a penalty which excludes a person from communion with the rest of the church. Its effects can depend on the status or position of the person in the Church. For ecclesiastics, for instance, it can mean prohibition from the exercise of priestly functions and ministry, while for lay people it can mean exclusion from the reception of the sacraments. It is the severest penalty under Church law, but it is good to remember that excommunication is intended to be medicinal, designed to bring about the correction of a person’s behavior and his or her reintegration into the full life of the Church. In other words, it is not meant to destroy but to redeem.

There are two kinds of excommunication: automatic and imposed. Automatic excommunication is incurred when one freely and knowingly commits an offense to which church law attaches excommunication. This is called latae sententiae. It does not come cheap. It comes in connection with outstanding and malicious offenses.

The number of offenses punishable by excommunication latae sententiae in the universal law has been radically reduced. And the sentence is really not that automatic because, aside from the requirement of full knowledge of and consent to the sinful act, the offense must be gravely imputable by reasons of malice. Thus the offender must also know that an automatic penalty is attached to the offense. Priests who hear confessions know that many sinners do not incur excommunication automatically because they do not know about the attached penalty. How widely known is it, for instance, that deliberate abortion can be ground for excommunication latae sententiae.

The other kind is imposed excommunication. The books call this ferendae sententiae. It is a penalty that is prescribed by law for an offense and imposed by one who has both authority and jurisdiction to impose excommunication. For instance, a bishop has authority and jurisdiction to excommunicate a person of his diocese.

The basic law on both kinds of excommunication says: “No one can be punished for the commission of an external violation of a law or precept unless it is gravely imputable by reason of malice or culpability.” The violation consists of both an objective element and a subjective element.

The objective element is the external act. It is one that can be perceived by someone who is present and it must admit of proof in the external forum. Thus a merely internal act of mind or will cannot be subjected to penalty.

The subjective element is present if the offense committed is “gravely imputable by reason of malice.” The concept of imputability must be understand clearly. It is not just imputability in the moral order, in the order of sin; it is imputability specifically in the juridical order. This means that the damage must be done in the public or social order. It is this damage in the juridical order which subjects a persons to the public authority of the Church in the external forum.

There are two important concepts that must be understood: malice and culpability. “Malice must be understood as the deliberate intention of violating a law or precept; culpability, on the other hand, involves the ‘omission of due diligence,’ i.e. the law or precept was violated through culpable ignorance or neglect of one’s own legal responsibilities.” The onus of establishing and proving malice and culpability belongs to the competent ecclesiastical authority.

That is not all, however. There still is the legal component of the offense. An external violation of a law is punishable only if the law provides for a penalty. As lawyers always say, nullum crimen sine lege, nulla poena sine lege. Moreover, as in the case of secular criminal law, church penal law is interpreted strictly, i.e., in such a way as not to enlarge the scope of its application

What can be seen from all this is that an important element of due process in church legislation is the recognition of the fact that, although penalties have an important role to play, they are not a substitute for ordinary pastoral approach. This fact must be kept in mind by persons administering the law. There is a distinction between the imputability of the objective element of the offense and the imputability of the subjective element of the offense. Either one can be focus of pastoral approach and determination of guilt.

Another indication of the pastoral thrust of church law is the enumeration of instances when violation of a law is not subject to penalty. There are many instances when the law exempts or excuses from penalties. These instances include lack of age, ignorance of the law through no fault of one’s own, duress, or mental incapacity. Moreover, even people who are not exempt from church penalties may be given a lower penalty if they are affected by a variety of extenuating circumstances. It is also good to remember that Jesus said that he came to save, not to destroy.

P.S. In my next column I shall write about the question whether a public official may impose his religious belief on those who follow a different set of beliefs

4 October 2010

Excommunication, Anyone?

The threat of excommunication may have been denied, but people are still asking about the what and how of excommunication. I hope the following can help.

First of all, what is excommunication. It is a penalty which excludes of a person from communion with the rest of the church. Its effects can depend on the status or position of the person in the Church. For ecclesiastics, for instance, it can mean prohibition from the exercise of priestly functions and ministry, while for lay people it can mean exclusion from the reception of the sacraments. It is the severest penalty under Church law, but it is good to remember that excommunication is intended to be medicinal, designed to bring about the correction of a person’s behavior and his or her reintegration into the full life of the Church. In other words, it is not meant to destroy but to redeem.

There are two kinds of excommunication: automatic and imposed. Automatic excommunication is incurred when one freely and knowingly commits an offense to which church law attaches excommunication. This is called latae sententiae. It does not come cheap. It comes in connection with outstanding and malicious offenses.

The number of offenses punishable by excommunication latae sententiae in the universal law has been radically reduced. And the sentence is really not that automatic because, aside from the requirement of full knowledge of and consent to the sinful act, the offense must be gravely imputable by reasons of malice. Thus the offender must also know that an automatic penalty is attached to the offense. Priests who hear confessions know that many sinners do not incur excommunication automatically because they do not know about the attached penalty. How widely known is it, for instance, that deliberate abortion can be ground for excommunication latae sententiae.

The other kind is imposed excommunication. The books call this ferendae sententiae. It is a penalty that is prescribed by law for an offense and imposed by one who has both authority and jurisdiction to impose excommunication. For instance, a bishop has authority and jurisdiction to excommunicate a person of his diocese.

The basic law on both kinds of excommunication says: “No one can be punished for the commission of an external violation of a law or precept unless it is gravely imputable by reason of malice or culpability.” The violation consists of both an objective element and a subjective element.

The objective element is the external act. It is one that can be perceived by someone who is present and it must admit of proof in the external forum. Thus a merely internal act of mind or will cannot be subjected to penalty.

The subjective element is present if the offense committed is “gravely imputable by reason of malice.” The concept of imputability must be understand clearly. It is not just imputability in the moral order, in the order of sin; it is imputability specifically in the juridical order. This means that the damage must be done in the public or social order. It is this damage in the juridical order which subjects a persons to the public authority of the Church in the external forum.

There are two important concepts that must be understood: malice and culpability. “Malice must be understood as the deliberate intention of violating a law or precept; culpability, on the other hand, involves the ‘omission of due diligence,’ i.e. the law or precept was violated through culpable ignorance or neglect of one’s own legal responsibilities.” The onus of establishing and proving malice and culpability belongs to the competent ecclesiastical authority.

That is not all, however. There still is the legal component of the offense. An external violation of a law is punishable only if the law provides for a penalty. As lawyers always say, nullum crimen sine lege, nulla poena sine lege. Moreover, as in the case of secular criminal law, church penal law is interpreted strictly, i.e., in such a way as not to enlarge the scope of its application

What can be seen from all this is that an important element of due process in church legislation is the recognition of the fact that, although penalties have an important role to play, they are not a substitute for ordinary pastoral approach. This fact must be kept in mind by persons administering the law. There is a distinction between the imputability of the objective element of the offense and the imputability of the subjective element of the offense. Either one can be focus of pastoral approach and determination of guilt.

Another indication of the pastoral thrust of church law is the enumeration of instances when violation of a law is not subject to penalty. There are many instances when the law exempts or excuses from penalties. These instances include lack of age, ignorance of the law through no fault of one’s own, duress, or mental incapacity. Moreover, even people who are not exempt from church penalties may be given a lower penalty if they are affected by a variety of extenuating circumstances. It is also good to remember that Jesus said that he came to save, not to destroy.

P.S. In my next column I shall write about the question whether a public official may impose his religious belief on those who follow a different set of beliefs

4 October 2010