Last week I wrote that I expected the House to vote quickly. It wasn’t as quick as I thought it would be, but it did not go beyond twenty four hours.
Soon it will be the Senate’s turn to vote. How might it go? There are tricky factors built into the system which make it difficult to guess the direction the Senate might vote. There are all sorts of speculation now. But that is just what they are, speculation.
In a judicial hearing there are three levels of evidence that can be used – substantial evidence in administrative cases, preponderance of evidence in civil cases, and proof beyond reasonable doubt in criminal case. These levels of evidence do not seem to be necessarily applicable in an impeachment trial. Usually what is sought is evidence that is “clear and convincing.” You might say that this means stronger than substantial evidence but not necessarily satisfying the requirement of proof beyond reasonable doubt. It may be that the direction of preponderance may be one way or the other but “clear and convincing.” I must admit that it is a matter that is not easily measured.
It must be remembered that an impeachment proceeding is a political proceeding. The judges are political officers. In other words, they are policy making officers. The object of an impeachment proceeding is not to convict a person criminally. Its only object is to remove a person from office when found to be unfit for the office or to disqualify him from holding any other office. After being removed, he or she may still be prosecuted for the offenses charged in an impeachment proceeding. Prosecution after impeachment will not constitute double jeopardy.
The outcome of an impeachment is a policy decision, a decision that determines what is deemed to be best for the nation. For that reason, the members of Congress are more correctly not asked to vote Guilty or Not Guilty. They simply are asked to vote Yes or No. True, the vote of Yes or No can be based on a judgment of guilt; but it is also possible that a Senator might believe that the respondent is guilty as sin but also believe that it is more harmful to the nation to remove him or her. In which case, the vote will be No. But the case may also be the reverse. A Senator might believe that the evidence against the person on trial may really be not that “clear and convincing.” But he may also be clearly and convincingly persuaded that it is best for the nation that person under impeachment leave office.
And let’s face. Partisan politics is never far away. I always like to cite the vote in the impeachment trial of President Clinton. When voting time came, the Democrats to a man voted to keep him. But the Republicans voted to a man to expel him. After that there was no more debate. The result was accepted as a matter of course.
There is nothing surprising about this. The Constitution has entrusted the impeachment process to Congress which, for better or for worse, is clearly a partisan animal. Keep your fingers crossed while waiting for the Senate vote on the Ombudsman.
* * * * *
When a Barangay ordinance becomes law. What has happened and what is happening in the Alabang Barangay village is an interesting study. As soon as the barangay council approved the ordinance on contraception, there were immediate attempts to implement it. It is even reported that some vigilantes were guarding and threatening the behavior of Mercury Drug salespersons.
The law on the subject found in the Local Government Code, however, is very clear. Within ten days from the approval of a barangay ordinance, it must be sent to the city or municipal council for review. If within thirty days the municipal or city council does nothing, the barangay ordinance becomes law. But if the municipal or city council returns it with instructions requiring changes, the ordinance will be unenforceable until the desired changes are made and reported to the higher council. Any barangay official who attempts to implement it without the blessing of the municipal or city council concerned can be subject to suspension or dismissal.
Of course a barangay council might choose to challenge the decision of a municipal or city council by going to court. But going to court will not make the barangay ordinance immediately enforceable. The decision of the court must be awaited. And even if a court favors the barangay, the court decision can likewise be appealed to a higher court by those affected by the ordinance. An appeal again will stop implementation until a final judicial decision is reached. It is thus not easy to ram the provisions of a barangay down the throats of objectors. But attempting to do just that is not unknown.
28 March 2011
Saturday, March 26, 2011
THE SENATE IMPEACHMENT VOTE
Last week I wrote that I expected the House to vote quickly. It wasn’t as quick as I thought it would be, but it did not go beyond twenty four hours.
Soon it will be the Senate’s turn to vote. How might it go? There are tricky factors built into the system which make it difficult to guess the direction the Senate might vote. There are all sorts of speculation now. But that is just what they are, speculation.
In a judicial hearing there are three levels of evidence that can be used – substantial evidence in administrative cases, preponderance of evidence in civil cases, and proof beyond reasonable doubt in criminal case. These levels of evidence do not seem to be necessarily applicable in an impeachment trial. Usually what is sought is evidence that is “clear and convincing.” You might say that this means stronger than substantial evidence but not necessarily satisfying the requirement of proof beyond reasonable doubt. It may be that the direction of preponderance may be one way or the other but “clear and convincing.” I must admit that it is a matter that is not easily measured.
It must be remembered that an impeachment proceeding is a political proceeding. The judges are political officers. In other words, they are policy making officers. The object of an impeachment proceeding is not to convict a person criminally. Its only object is to remove a person from office when found to be unfit for the office or to disqualify him from holding any other office. After being removed, he or she may still be prosecuted for the offenses charged in an impeachment proceeding. Prosecution after impeachment will not constitute double jeopardy.
The outcome of an impeachment is a policy decision, a decision that determines what is deemed to be best for the nation. For that reason, the members of Congress are more correctly not asked to vote Guilty or Not Guilty. They simply are asked to vote Yes or No. True, the vote of Yes or No can be based on a judgment of guilt; but it is also possible that a Senator might believe that the respondent is guilty as sin but also believe that it is more harmful to the nation to remove him or her. In which case, the vote will be No. But the case may also be the reverse. A Senator might believe that the evidence against the person on trial may really be not that “clear and convincing.” But he may also be clearly and convincingly persuaded that it is best for the nation that person under impeachment leave office.
And let’s face. Partisan politics is never far away. I always like to cite the vote in the impeachment trial of President Clinton. When voting time came, the Democrats to a man voted to keep him. But the Republicans voted to a man to expel him. After that there was no more debate. The result was accepted as a matter of course.
There is nothing surprising about this. The Constitution has entrusted the impeachment process to Congress which, for better or for worse, is clearly a partisan animal. Keep your fingers crossed while waiting for the Senate vote on the Ombudsman.
* * * * *
When a Barangay ordinance becomes law. What has happened and what is happening in the Alabang Barangay village is an interesting study. As soon as the barangay council approved the ordinance on contraception, there were immediate attempts to implement it. It is even reported that some vigilantes were guarding and threatening the behavior of Mercury Drug salespersons.
The law on the subject found in the Local Government Code, however, is very clear. Within ten days from the approval of a barangay ordinance, it must be sent to the city or municipal council for review. If within thirty days the municipal or city council does nothing, the barangay ordinance becomes law. But if the municipal or city council returns it with instructions requiring changes, the ordinance will be unenforceable until the desired changes are made and reported to the higher council. Any barangay official who attempts to implement it without the blessing of the municipal or city council concerned can be subject to suspension or dismissal.
Of course a barangay council might choose to challenge the decision of a municipal or city council by going to court. But going to court will not make the barangay ordinance immediately enforceable. The decision of the court must be awaited. And even if a court favors the barangay, the court decision can likewise be appealed to a higher court by those affected by the ordinance. An appeal again will stop implementation until a final judicial decision is reached. It is thus not easy to ram the provisions of a barangay down the throats of objectors. But attempting to do just that is not unknown.
28 March 2011
Soon it will be the Senate’s turn to vote. How might it go? There are tricky factors built into the system which make it difficult to guess the direction the Senate might vote. There are all sorts of speculation now. But that is just what they are, speculation.
In a judicial hearing there are three levels of evidence that can be used – substantial evidence in administrative cases, preponderance of evidence in civil cases, and proof beyond reasonable doubt in criminal case. These levels of evidence do not seem to be necessarily applicable in an impeachment trial. Usually what is sought is evidence that is “clear and convincing.” You might say that this means stronger than substantial evidence but not necessarily satisfying the requirement of proof beyond reasonable doubt. It may be that the direction of preponderance may be one way or the other but “clear and convincing.” I must admit that it is a matter that is not easily measured.
It must be remembered that an impeachment proceeding is a political proceeding. The judges are political officers. In other words, they are policy making officers. The object of an impeachment proceeding is not to convict a person criminally. Its only object is to remove a person from office when found to be unfit for the office or to disqualify him from holding any other office. After being removed, he or she may still be prosecuted for the offenses charged in an impeachment proceeding. Prosecution after impeachment will not constitute double jeopardy.
The outcome of an impeachment is a policy decision, a decision that determines what is deemed to be best for the nation. For that reason, the members of Congress are more correctly not asked to vote Guilty or Not Guilty. They simply are asked to vote Yes or No. True, the vote of Yes or No can be based on a judgment of guilt; but it is also possible that a Senator might believe that the respondent is guilty as sin but also believe that it is more harmful to the nation to remove him or her. In which case, the vote will be No. But the case may also be the reverse. A Senator might believe that the evidence against the person on trial may really be not that “clear and convincing.” But he may also be clearly and convincingly persuaded that it is best for the nation that person under impeachment leave office.
And let’s face. Partisan politics is never far away. I always like to cite the vote in the impeachment trial of President Clinton. When voting time came, the Democrats to a man voted to keep him. But the Republicans voted to a man to expel him. After that there was no more debate. The result was accepted as a matter of course.
There is nothing surprising about this. The Constitution has entrusted the impeachment process to Congress which, for better or for worse, is clearly a partisan animal. Keep your fingers crossed while waiting for the Senate vote on the Ombudsman.
* * * * *
When a Barangay ordinance becomes law. What has happened and what is happening in the Alabang Barangay village is an interesting study. As soon as the barangay council approved the ordinance on contraception, there were immediate attempts to implement it. It is even reported that some vigilantes were guarding and threatening the behavior of Mercury Drug salespersons.
The law on the subject found in the Local Government Code, however, is very clear. Within ten days from the approval of a barangay ordinance, it must be sent to the city or municipal council for review. If within thirty days the municipal or city council does nothing, the barangay ordinance becomes law. But if the municipal or city council returns it with instructions requiring changes, the ordinance will be unenforceable until the desired changes are made and reported to the higher council. Any barangay official who attempts to implement it without the blessing of the municipal or city council concerned can be subject to suspension or dismissal.
Of course a barangay council might choose to challenge the decision of a municipal or city council by going to court. But going to court will not make the barangay ordinance immediately enforceable. The decision of the court must be awaited. And even if a court favors the barangay, the court decision can likewise be appealed to a higher court by those affected by the ordinance. An appeal again will stop implementation until a final judicial decision is reached. It is thus not easy to ram the provisions of a barangay down the throats of objectors. But attempting to do just that is not unknown.
28 March 2011
Saturday, March 19, 2011
EYES ON THE IMPEACHMENT PROCESS
Prenote. To my critics who accuse me of heretical eclecticism, let me just say that, of course, I accept the teaching of the Pope on contraception and abortion. But the other part of what I believe, often ignored by my critics, is that the Church also teaches us to respect the belief of others and not to impose our beliefs on the unwilling nor prevent them from acting according to their belief when what they do is not against the law or public welfare. Verbum satis sapienti.
* * * * *
We have never succeeded in convicting a person on impeachment. The closest we had to completing an impeachment proceeding was when, in the impeachment of Joseph Estrada, Congress reached the trial stage. But the trial was not completed.
The impeachment move against the Ombudsman has made much progress. It is getting close to the trial stage. Now there is also talk of impeaching justices of the Supreme Court. What will the final outcome be?
In this piece I propose to approach impeachment from the academic point of view. The academic approach, after all, is part of real life. I have always believed that part of fidelity to the rule of law must be recognition and awareness of the academic underpinnings of existing law.
Impeachment is of British origin. Ironically, however, in the British system neither the king nor the Prime Minister is subject to impeachment. Not the king, because the only way of getting rid of an unwanted monarch is by revolution or assassination. Not the Prime Minister, because the Prime Minister is essentially a legislative creature who may at any time be replaced by parliament through a no confidence vote. The reasons for ouster of a Prime Minister theoretically can be as trivial as the quality of his sartorial preferences.
When the American Founding Fathers were formulating the Constitution, they had no intention of setting up a monarch who could rule for life. But they did want to give the chief executive security of tenure. At the same time, however, the Founders were aware that, human nature being what it is, it might become necessary to rid the presidency of one who has been found unworthy of the office. They were, moreover, also aware that any president would have innumerable enemies who would only be too glad to oust him. What the Founders did therefore was to make the president virtually immune from legal action but at the same time removable in extreme cases when the only way of protecting the public is by removing him. The method set up was the impeachment process.
This is what we have now and we apply it to key officials including the Ombudsman and Supreme Court justices. Removal can only be based on the grounds of "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
The object of the process is not to punish but only to remove a person from office. As justice Storey put it in his commentary on the Constitution, impeachment is "a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity." Put differently, removal and disqualification are the only punishments that can be imposed upon conviction on impeachment. Criminal and civil liability can follow after the officer has been removed by impeachment. Prosecution after impeachment does not constitute double jeopardy.
The present Constitution has expanded the list of impeachable offenses to include "graft and corruption" and "betrayal of public trust." The mention of these two categories might give the impression that impeachment has been trivialized. But the way the provision is worded is significant. It enumerates the grounds for impeachment as "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." The word "other" is significant. The rule in the interpretation of laws is that when the law makes an enumeration of specific objects and follows it with "other" unspecified objects, those unspecified objects must be of the same nature as those specified. Thus, for "graft and corruption" and "betrayal of public trust" to be grounds for impeachment, their concrete manner of commission must be of the same severity as "treason" and "bribery." These offenses strike at the very heart of the life of the nation.
As applied to the Ombudsman, has she committed offenses which are of this degree of severity? Not a few think she has; but the final answer to the question of course is a matter of evidence.
And who is to decide if she has or has not? The answer underlines the non-judicial but political character of impeachment. The decision will not be arrived at in the atmosphere of cold neutrality of judicial courts. The decision will be arrived at by a partisan body, Congress, whose decisions in crucial matters are often dictated by considerations other than legality.
The nation will be watching what the House of Representatives will say about the charges against the Ombudsman. I expect the House to vote quickly for prosecution. The House will need only a vote of one third of all the Members. When the case goes to the Senate, conviction will need the vote of two thirds of all the Members. How will the Senate vote? Whether in the House or in the Senate, political considerations can dictate the direction of the vote.
21 March 2011
* * * * *
We have never succeeded in convicting a person on impeachment. The closest we had to completing an impeachment proceeding was when, in the impeachment of Joseph Estrada, Congress reached the trial stage. But the trial was not completed.
The impeachment move against the Ombudsman has made much progress. It is getting close to the trial stage. Now there is also talk of impeaching justices of the Supreme Court. What will the final outcome be?
In this piece I propose to approach impeachment from the academic point of view. The academic approach, after all, is part of real life. I have always believed that part of fidelity to the rule of law must be recognition and awareness of the academic underpinnings of existing law.
Impeachment is of British origin. Ironically, however, in the British system neither the king nor the Prime Minister is subject to impeachment. Not the king, because the only way of getting rid of an unwanted monarch is by revolution or assassination. Not the Prime Minister, because the Prime Minister is essentially a legislative creature who may at any time be replaced by parliament through a no confidence vote. The reasons for ouster of a Prime Minister theoretically can be as trivial as the quality of his sartorial preferences.
When the American Founding Fathers were formulating the Constitution, they had no intention of setting up a monarch who could rule for life. But they did want to give the chief executive security of tenure. At the same time, however, the Founders were aware that, human nature being what it is, it might become necessary to rid the presidency of one who has been found unworthy of the office. They were, moreover, also aware that any president would have innumerable enemies who would only be too glad to oust him. What the Founders did therefore was to make the president virtually immune from legal action but at the same time removable in extreme cases when the only way of protecting the public is by removing him. The method set up was the impeachment process.
This is what we have now and we apply it to key officials including the Ombudsman and Supreme Court justices. Removal can only be based on the grounds of "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
The object of the process is not to punish but only to remove a person from office. As justice Storey put it in his commentary on the Constitution, impeachment is "a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity." Put differently, removal and disqualification are the only punishments that can be imposed upon conviction on impeachment. Criminal and civil liability can follow after the officer has been removed by impeachment. Prosecution after impeachment does not constitute double jeopardy.
The present Constitution has expanded the list of impeachable offenses to include "graft and corruption" and "betrayal of public trust." The mention of these two categories might give the impression that impeachment has been trivialized. But the way the provision is worded is significant. It enumerates the grounds for impeachment as "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." The word "other" is significant. The rule in the interpretation of laws is that when the law makes an enumeration of specific objects and follows it with "other" unspecified objects, those unspecified objects must be of the same nature as those specified. Thus, for "graft and corruption" and "betrayal of public trust" to be grounds for impeachment, their concrete manner of commission must be of the same severity as "treason" and "bribery." These offenses strike at the very heart of the life of the nation.
As applied to the Ombudsman, has she committed offenses which are of this degree of severity? Not a few think she has; but the final answer to the question of course is a matter of evidence.
And who is to decide if she has or has not? The answer underlines the non-judicial but political character of impeachment. The decision will not be arrived at in the atmosphere of cold neutrality of judicial courts. The decision will be arrived at by a partisan body, Congress, whose decisions in crucial matters are often dictated by considerations other than legality.
The nation will be watching what the House of Representatives will say about the charges against the Ombudsman. I expect the House to vote quickly for prosecution. The House will need only a vote of one third of all the Members. When the case goes to the Senate, conviction will need the vote of two thirds of all the Members. How will the Senate vote? Whether in the House or in the Senate, political considerations can dictate the direction of the vote.
21 March 2011
EYES ON THE IMPEACHMENT PROCESS
Prenote. To my critics who accuse me of heretical eclecticism, let me just say that, of course, I accept the teaching of the Pope on contraception and abortion. But the other part of what I believe, often ignored by my critics, is that the Church also teaches us to respect the belief of others and not to impose our beliefs on the unwilling nor prevent them from acting according to their belief. Verbum satis sapienti.
* * * * *
We have never succeeded in convicting a person on impeachment. The closest we had to completing an impeachment proceeding was when, in the impeachment of Joseph Estrada, Congress reached the trial stage. But the trial was not completed.
The impeachment move against the Ombudsman has made much progress. It is getting close to the trial stage. Now there is also talk of impeaching justices of the Supreme Court. What will the final outcome be?
In this piece I propose to approach impeachment from the academic point of view. The academic approach, after all, is part of real life. I have always believed that part of fidelity to the rule of law must be recognition and awareness of the academic underpinnings of existing law.
Impeachment is of British origin. Ironically, however, in the British system neither the king nor the Prime Minister is subject to impeachment. Not the king, because the only way of getting rid of an unwanted monarch is by revolution or assassination. Not the Prime Minister, because the Prime Minister is essentially a legislative creature who may at any time be replaced by parliament through a no confidence vote. The reasons for ouster of a Prime Minister theoretically can be as trivial as the quality of his sartorial preferences.
When the American Founding Fathers were formulating the Constitution, they had no intention of setting up a monarch who could rule for life. But they did want to give the chief executive security of tenure. At the same time, however, the Founders were aware that, human nature being what it is, it might become necessary to rid the presidency of one who has been found unworthy of the office. They were, moreover, also aware that any president would have innumerable enemies who would only be too glad to oust him. What the Founders did therefore was to make the president virtually immune from legal action but at the same time removable in extreme cases when the only way of protecting the public is by removing him. The method set up was the impeachment process.
This is what we have now and we apply it to key officials including the Ombudsman and Supreme Court justices. Removal can only be based on the grounds of "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
The object of the process is not to punish but only to remove a person from office. As justice Storey put it in his commentary on the Constitution, impeachment is "a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity." Put differently, removal and disqualification are the only punishments that can be imposed upon conviction on impeachment. Criminal and civil liability can follow after the officer has been removed by impeachment. Prosecution after impeachment does not constitute double jeopardy.
The present Constitution has expanded the list of impeachable offenses to include "graft and corruption" and "betrayal of public trust." The mention of these two categories might give the impression that impeachment has been trivialized. But the way the provision is worded is significant. It enumerates the grounds for impeachment as "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." The word "other" is significant. The rule in the interpretation of laws is that when the law makes an enumeration of specific objects and follows it with "other" unspecified objects, those unspecified objects must be of the same nature as those specified. Thus, for "graft and corruption" and "betrayal of public trust" to be grounds for impeachment, their concrete manner of commission must be of the same severity as "treason" and "bribery." These offenses strike at the very heart of the life of the nation.
As applied to the Ombudsman, has she committed offenses which are of this degree of severity? Not a few think she has; but the final answer to the question of course is a matter of evidence.
And who is to decide if she has or has not? The answer underlines the non-judicial but political character of impeachment. The decision will not be arrived at in the atmosphere of cold neutrality of judicial courts. The decision will be arrived at by a partisan body, Congress, whose decisions in crucial matters are often dictated by considerations other than legality.
The nation will be watching what the House of Representatives will say about the charges against the Ombudsman. I expect the House to vote quickly for prosecution. The House will need only a vote of one third of all the Members. When the case goes to the Senate, conviction will need the vote of two thirds of all the Members. How will the Senate vote? Whether in the House or in the Senate, political considerations can dictate the direction of the vote.
21 March 2011
* * * * *
We have never succeeded in convicting a person on impeachment. The closest we had to completing an impeachment proceeding was when, in the impeachment of Joseph Estrada, Congress reached the trial stage. But the trial was not completed.
The impeachment move against the Ombudsman has made much progress. It is getting close to the trial stage. Now there is also talk of impeaching justices of the Supreme Court. What will the final outcome be?
In this piece I propose to approach impeachment from the academic point of view. The academic approach, after all, is part of real life. I have always believed that part of fidelity to the rule of law must be recognition and awareness of the academic underpinnings of existing law.
Impeachment is of British origin. Ironically, however, in the British system neither the king nor the Prime Minister is subject to impeachment. Not the king, because the only way of getting rid of an unwanted monarch is by revolution or assassination. Not the Prime Minister, because the Prime Minister is essentially a legislative creature who may at any time be replaced by parliament through a no confidence vote. The reasons for ouster of a Prime Minister theoretically can be as trivial as the quality of his sartorial preferences.
When the American Founding Fathers were formulating the Constitution, they had no intention of setting up a monarch who could rule for life. But they did want to give the chief executive security of tenure. At the same time, however, the Founders were aware that, human nature being what it is, it might become necessary to rid the presidency of one who has been found unworthy of the office. They were, moreover, also aware that any president would have innumerable enemies who would only be too glad to oust him. What the Founders did therefore was to make the president virtually immune from legal action but at the same time removable in extreme cases when the only way of protecting the public is by removing him. The method set up was the impeachment process.
This is what we have now and we apply it to key officials including the Ombudsman and Supreme Court justices. Removal can only be based on the grounds of "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
The object of the process is not to punish but only to remove a person from office. As justice Storey put it in his commentary on the Constitution, impeachment is "a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity." Put differently, removal and disqualification are the only punishments that can be imposed upon conviction on impeachment. Criminal and civil liability can follow after the officer has been removed by impeachment. Prosecution after impeachment does not constitute double jeopardy.
The present Constitution has expanded the list of impeachable offenses to include "graft and corruption" and "betrayal of public trust." The mention of these two categories might give the impression that impeachment has been trivialized. But the way the provision is worded is significant. It enumerates the grounds for impeachment as "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." The word "other" is significant. The rule in the interpretation of laws is that when the law makes an enumeration of specific objects and follows it with "other" unspecified objects, those unspecified objects must be of the same nature as those specified. Thus, for "graft and corruption" and "betrayal of public trust" to be grounds for impeachment, their concrete manner of commission must be of the same severity as "treason" and "bribery." These offenses strike at the very heart of the life of the nation.
As applied to the Ombudsman, has she committed offenses which are of this degree of severity? Not a few think she has; but the final answer to the question of course is a matter of evidence.
And who is to decide if she has or has not? The answer underlines the non-judicial but political character of impeachment. The decision will not be arrived at in the atmosphere of cold neutrality of judicial courts. The decision will be arrived at by a partisan body, Congress, whose decisions in crucial matters are often dictated by considerations other than legality.
The nation will be watching what the House of Representatives will say about the charges against the Ombudsman. I expect the House to vote quickly for prosecution. The House will need only a vote of one third of all the Members. When the case goes to the Senate, conviction will need the vote of two thirds of all the Members. How will the Senate vote? Whether in the House or in the Senate, political considerations can dictate the direction of the vote.
21 March 2011
Wednesday, March 16, 2011
THE TEACHING OF THE CBCP
Some of those who commented on my blog accused me of not obeying the CBCP. What does the CBCP say?
The Catholic Social Teaching of the Second Plenary Council of the Philippines (PCP II) under the CBCP states: “The public defense of gospel values, especially when carried into the arena of public policy formulation, whether through the advocacy of lay leaders or the moral suasion by pastors, is not without limit...It needs emphasizing, that, although pastors have the liberty to participate in policy debate and formulation, that liberty must not be exercised to the detriment of the religious freedom of non-communicants, or even of dissenting communicants. This is a clear implication of Vatican II’s Dignitatis humanae. This is not just a matter of prudence; it is a matter of justice” (#358) .
Some bishops may not agree with this. But I would rather follow the teaching of the CBCP and of Paul VI in Dignitatis Humanae.
The Catholic Social Teaching of the Second Plenary Council of the Philippines (PCP II) under the CBCP states: “The public defense of gospel values, especially when carried into the arena of public policy formulation, whether through the advocacy of lay leaders or the moral suasion by pastors, is not without limit...It needs emphasizing, that, although pastors have the liberty to participate in policy debate and formulation, that liberty must not be exercised to the detriment of the religious freedom of non-communicants, or even of dissenting communicants. This is a clear implication of Vatican II’s Dignitatis humanae. This is not just a matter of prudence; it is a matter of justice” (#358) .
Some bishops may not agree with this. But I would rather follow the teaching of the CBCP and of Paul VI in Dignitatis Humanae.
Tuesday, March 15, 2011
COMMENTS ON MY BLOGS
ALTHOUGH I WAS VASTLY ENTERTAINED BY THE COMMENTS ON BY BLOG, I NEED NOT ANSWER THEM BECAUSE THERE IS NOTHING IN THEM THAT CANNOT BE ANSWERED THROUGH AN INTELLIGENT READING OF MY PRIOR BLOGS.
POSTSCRIPT RE BARANGAY ORDINANCE
Section 57 says about barangay ordinances:
"(c) If the sangguniang panlungsod or sangguniang bayan, as the case may be, finds the barangay ordinances inconsistent with law or city or municipal ordinances, the sanggunian concerned shall, within thirty (30) days from receipt thereof, return the same with its comments and recommendations to the sangguniang barangay concerned for adjustment, amendment, or modification; in which case, the effectivity of the barangay ordinance is suspended until such time as the revision called for is effected."
Now that the sangguniang panglungsod has spoken agaiinst the ordinance, those threatened by itshould breath freely.
Sunday, March 13, 2011
ISSUES ARISING FROM THE RH BILLS
ISSUES ARISING FROM THE RH BILLS
Joaquin G. Bernas, S.J.
[The piece below is a talk I gave to the Makati Medical Society. I recproduce it here for those who were interested enough to comment on my blog on the Alabang Ordinance.]
I am honored to be invited to speak before you today. Cutting the ribbon was a further unexpected honor. But when I received your invitation I said to myself, Why me? Why not someone closely connected with the medical profession. I also wondered what I could possibly talk about. Luckily your emissary did not specify what you want me to speak about, but he did say that the topic can be anything that has something to do with morality.
Morality, of course, is a very broad subject. This is good, because it gives me a wide field of topics to choose from. However, since you are medical professionals and I am a priest who also happens to be a lawyer, I thought that I should choose something interdisciplinary, something about which you and I can dialogue. Fortunately there is a topic that has been hugging the newspapers about which medical scientists, lawyers, and religious leaders can have something to say from the perspective of their respective specializations. I am, of course, referring to the Reproductive Health Bills being discussed in Congress.
The Reproductive Health Bill deals with family planning, contraception, and to some extent with abortion. Personally, I have no use for these. Ultimately, however, and as the Bills themselves say, it is about protection of human life, and I am interested in that. Hence I would like to begin by asking: When does human life begin? The Constitution has an answer to this question; the medical profession also has; finally Pope John II has spoken about it.
I begin with what the Constitution says: “The State . . . shall equally protect the life of the mother and the life of the unborn from conception.” In the mind of those who wrote the Constitution, (and I was one of them), life begins at conception. More specifically, what we meant was that life begins at “fertilization.” We, the constitution writers, of course, were not speaking as medical scientists. What we intended the Constitution to mean was that the law should play it safe. Following the precautionary principle, since there is the possibility that life begins at fertilization, the protection of life should begin from the verified moment of fertilization.
Correct me if I am wrong, but I have been made to understand that the Philippine Medical Society, or at least some of your members, also hold that life begins at fertilization. [Confirmed by the President of PMA)
This, I believe, is also the moral teaching of John Paul II’s Evangelium Vitae: He says: “. . . 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.”
On this basis I hold that abortion under the Penal Code is committed when a human embryo is expelled or destroyed any time from fertilization to the point of viability of the fetus. If expulsion is done after viability, it is no longer abortion but infanticide, a more serious criminal offense. (And incidentally, also serious sins against God).
Let me move from abortion and infanticide to contraception, which is more controversial. 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 mainly 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, non-Catholics too have the right of moral equality and moral freedom under our democratic system..
I do not think we can reach agreement about contraception in our life time. Hence I would like to talk about this insurmountable disagreement in the context of something we have to live with. I am referring to freedom of religion guaranteed by the Constitution, which incidentally is also the teaching of the Catholic Church since the decree on Religious Liberty under the Second Vatican Council.
What does the Constitution say about religious liberty? The text says, and I quote: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.” What does this mean? It means more than just the freedom to believe or freedom to choose what church to affiliate with. It also means the freedom to act or not to act according to what one believes. Thus this freedom is violated when one is compelled to act against one’s belief or is prevented from acting according to one’s belief. Let me therefore talk, first of all, about contraception in the context of freedom of religion.
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 like ours, requires that government interpret the common good of the country not only according to the guidelines of whatever religion may be the majority, in our case the Catholic religion, but also according to the effective good of all the members of the community, including those belonging to minority religions.
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. Only recently, for instance, the newspapers reported that barangay officials of an exclusive community passed an ordinance prohibiting the dispensing of contraceptives. The authors of the ordinance claim that they are merely implementing a provision of the law on the practice of pharmacy which prohibits the dispensing of contraceptives without prescription. But if you look at the Pharmacy Law, a medical prescription is required only for those classified by the Food and Drug Administration as needing prescription. I ask you, since you know this better than I: Is there any contraceptive drug or device being openly sold over the counter today which requires prescription?
I believe, however, that there is something more eerily fundamental here. I see in this ordinance an attempt by a sector of the Catholic church to instrumentalize the power of the state to impose their personal belief on all others. This is something which gives the Catholic religion a bad name.
But an important question, of course, is whether there are in the market today contraceptive means which not only prevent fertilization but even can expel a human embryo or cause abortion. That is a question for science and the Food and Drug Administration to answer. If there are, they should be specifically identified and taken out of the over the counter market.
It is also 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 religious persecution of the Jews as by theology. We who have not experienced massive religious persecution must learn from the lessons of history.
There are other issues that can arise from the RH Bill insofar as it relates to religious liberty. Let me just mention a few.
The implementation of the RH Bill will be done by government health workers. What happens if the duties of government health workers will require them to act against their religious belief? This is something which, I believe, is not taken up in the existing draft of the RH Bill. But in constitutional law there is a concession to conscientious objectors in the military. Those who are against war as immoral are not sent to the front but are given desk assignments. I hope that a similar concession can be given to objecting health workers.
Another religious liberty issue can arise from the duty imposed on employers. The latest version of the bill which I have seen has retained the provision which says that employers with more than 200 employees shall provide reproductive health services to all employees in their own respective health facilities. Those with less than 200 workers shall enter into partnerships with hospitals, health facilities, and/or health professionals in their areas for the delivery of reproductive health services. Notably, however, it does not specify the kind of reproductive health services to be given. But the Department of Labor is given the responsibility of implementing this provision. We will have to await how the Department of Labor will implement this and whether allowance will be made for religious objection.
Another issue is sex education. Parents are justifiably concerned about the proper moral training of their children. The approved bill has retained the provision on a common sex education program for public and private schools to be formulated by the Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), the DSWD, and the DOH. Curiously, however, the bill also says that ëthe DepEd, CHED, DSWD, TESDA, and DOH shall provide concerned parents with adequate and relevant scientific materials on the age-appropriate topics and manner of teaching reproductive health education to their children.î This seems to be an indication that the bill is open to making exception for parents who wish to teach their own children? If this exception for parents is what the bill envisions, there is a constitutional model for it. The Constitution says: “At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.” Needless to say, religious schools will also want to design their own program.
Is it legitimate for the government to use public money for contraceptive services? Incidentally, the RH bill, in its definition of methods of family planning, has deleted specific reference to “pill, intra-uterine device (IUD), injectables, condoms, ligation, vasectomy . . .” It now merely says “safe, effective and legal methods, whether the natural, or artificial that are registered with the Food and Drug Administration (FD) of the Department of Health (DOH).” As to the use of public funds for these, it is good to remember that public money has no religious character. The rule on how to spend it is simple. Money can be drawn out of the public treasury only “in pursuance of an appropriation made by law.” The only limitation on Congress when funds are available is that the appropriation must be for a public purpose.
Finally, let me just say that the RH Bill is a work in progress. The House version will still have to be debated in plenary sessions. If approved by the House, it will still go to the Senate for the same deliberative process. What will finally come out will be colored by inputs made by religious leaders, lawyers, and health professionals like you. It therefore gives you an opportunity to make a contribution towards making a reproductive health law that is best for the Filipino people.
JGBernas,SJ
13 March 2011
RELIGIOUS FREEDOM IN THE CHURCH
FOR THOSE WHO MAY BE THINKING THAT I AM GOING AGAINST OFFICIAL TEACHING OF THE CHURCH, LET ME JUST QUOTE A KEY PROVISION IN VATICAN II DECLARATION ON RELIGIOUS LIBERTY ENTITLED "DIGNITATIS HUMANAE."
“This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.
“The council further declares that the right to religious freedom has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself. This right of the human person to religious freedom is to be recognized in the constitutional law whereby society is governed and thus it is to become a civil right.
“It is in accordance with their dignity as persons-that is, beings endowed with reason and free will and therefore privileged to bear personal responsibility-that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth. They are also bound to adhere to the truth, once it is known, and to order their whole lives in accord with the demands of truth. However, men cannot discharge these obligations in a manner in keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom. Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed.”
Saturday, March 12, 2011
FUROR OVER ALABANG ORDINANCE
I am, of course, referring to an ordinance that bars distribution of contraceptive drugs and devises in Alabang village. In a copy of the ordinance which I have seen, the Alabang BARANGAY Council prohibits “Any natural or legal person to advertise within the territorial jurisdiction of the BARANGAY . . . or sell, offer for free or endorse, promote, prescribe or distribute abortifacients as defined” in the ordinance. The ordinance defines abortifacients as “any devise, medicine, substance or practice which may damage, injure, interfere with the natural development, endanger or cause the expulsion or death of an unborn child . . . Abortifacients include Intrauterine Devises (IUD’s), and hormonal contraceptives . . .” The Ordinance lists what it prohibits in an Annex.
Purportedly, this is merely an implementation of Section 37 of R.A. 5921. What is this Section 37 all about? It is part of the law governing the practice of pharmacy. Specifically it enumerates what drugs and devises may not be sold without a doctor’s prescription. It says: “No drug or chemical product or device capable of provoking abortion or preventing conception as classified by the Food and Drug Administration shall be delivered or sold to any person without a proper prescription by a duly licensed physician.” Violation of this law is a criminal offense punishable by a penalty found in Section 40 of the same law.
It is important to note, therefore, that it is a penal law. Like any penal law it is limited strictly to what it prohibits. Thus, who are covered by it and what exactly does it prohibit?
Pharmacists are covered by the prohibition. R.A. 5921 is about the regulation of the practice of pharmacy. It is not a regulation of the activity of buyers of pharmaceutical goods but of the actions of pharmacists.
What does RA 5921 prohibit? What act does it punish? It does not prohibit the sale or dispensing without prescription of every contraceptive or abortive devise. It prohibits the dispensing without prescription only of contraceptive or abortive drugs or devises “as classified by the Food and Drug Administration.” The FDA is the national body empowered to regulate drugs.
An interesting question is whether the Annex to the Alabang ordinance expands the list of drugs and devises listed by the Food and Drug Administration. It seems to me that the drugs and devises being currently sold over the counter are not in the FDA list. Interesting too is the question whether a barangay council can determine what doctors may or may not prescribe.
These, of course, are technical matters that can easily be verified. I believe, however, that there is something more eerily fundamental here. I see what is happening as an attempt by a sector of the Catholic church to instrumentalize the power of the state to impose Catholic belief on all others. This is something which gives the Catholic religion a bad name. It is reminiscent of the Inquisition.
We might perhaps agree about the evil of abortion. But when it comes to contraception, the nation divides mainly along religious lines. The official Catholic teaching is that artificial contraception is immoral. Other religions believe in good faith otherwise. Seeking to impose Catholic belief and practices on non-Catholics and others violates freedom of religion. Freedom of religion does not merely mean freedom to believe. It also means freedom to act or not to act according to one’s belief. And this too is the teaching of Vatican II in its decree Dignitatis Humanae.
The Alabang ordinance is not far from a statute declared unconstitutional which said: "Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."
Of course, the ordinance authors will say that they are not prohibiting the use but merely regulating the sale. But they insult the intelligence of villagers by thinking that the Alabang residents are village idiots who do not have enough brains to see the truth behind the pretense. One does not have to be a genius to understand that the curtailment of sale is intended to prevent the use of what is sold. And therein lies the gross offense. As one court said: “The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”
Finally, the ordinance purports to prescribe a criminal penalty. Only a real court and not a village kangaroo court or vigilante may impose criminal penalty, and only after trial.
14 March 2011
Saturday, March 5, 2011
SKIRMISHING ABOUT CITYHOOD LAWS
In the long drawn out fight about the validity of the Cityhood Laws which granted cityhood status to sixteen municipalities, there were two initial central issues: (1) whether the laws violated the constitutional provision on the requirements for the creation of cities, and (2) whether the laws violated the equal protection clause of the Constitution. The initial decision affirmed that, yes, both provisions of the Constitution were violated.
This was followed by a motion for reconsideration. which was denied. A second motion for reconsideration was also denied on the basis of the Rule of Court which says: “No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.”
The beneficiaries of the cityhood laws, however, persisted in asking for another reconsideration until the Supreme Court eventually relented. Last February 15 the Court finally decided that the cityhood laws were valid after all.
Whether or not the two cited provisions of the Constitution were violated is a question which will continue to be debated by lawyers. But an interesting question is whether another motion for reconsideration might be entertained.
The current attitude of the Court towards the rule against multiple reconsideration was expressed in the February 15 decision thus: “Finally, we should not be restricted by technical rules of procedure at the expense of the transcendental interest of justice and equity. While it is true that litigation must end, even at the expense of errors in judgment, it is nobler rather for this Court of last resort, as vanguard of truth, to toil in order to dispel apprehensions and doubt . . .” A concurring opinion also said: “At any rate, the Court has under extraordinary circumstances reconsidered its ruling despite an entry of judgment. It will not allow the technical rules to hinder it from rendering just and equitable relief.”
We are all forewarned!
But what considerations of justice and equity did the Court say should not be obstructed by a mere Rule of Court? Some of it were folksy wisdom and others simple facts.
For instance, when the new law requiring a higher financial status before a municipality could become a city was deliberated on and passed, the municipalities involved already had a pending application under the old and less demanding requirement. In other words, the game had already started. The Court accepted the view that the rules should not be changed in mid-game or, if they are, the new rule should not be applied to a game already ongoing.
To the claim of petitioner cities that the cityhood laws would mean a reduction of their respective Internal Revenue Allotment (IRA) shares, the Court pointed out that what the cities were really saying was not that they would receive less than what they had been currently receiving but that they would not get more if the new cities were created. Wryly the Court observed, “it all boils down to money.”
It was noted in fact that “the feared reduction proved to be false when, after the implementation of the Cityhood Laws, their respective shares increased, not decreased,” as shown by IRA records!
The Court used a cruel analogy. The cities were like older children who would dispose of younger siblings who could reduce their share in the inheritance!
Incidentally, what is the rationale behind the new P100 million income requirement imposed by R.A. No. 9009 for a municipality to become a city? Senate deliberations clearly indicate that it was intended to put a stop to the mad rush to become cities. The rush, if not stopped, the deliberations said, would end in a nation without municipalities but only cities. I am not sure what difference that would make.
As a means for stopping the rush, R.A. 9009 was effective. But the amount prescribed seems arbitrary. As the Court said, it “cannot be conclusively said to be the only amount sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population. . . It was imposed merely because it is difficult to comply with. While it could be argued that P100 million, being more than the old P20 million requirement, could, of course, provide the essential government facilities, services, and special functions vis-à-vis the population of a municipality wanting to become a component city, it cannot be said that the minimum amount of P20 million would be insufficient. This is evident from the existing cities whose income, up to now, do not comply with the P100 million income requirement, some of which have lower than the P20 million average annual income.”
This last, of course, is no longer a matter of law but already a matter of practical wisdom which belongs to the domain of Congress. But, on the whole, out of the long disquisition of the Court, the complaining League of Cities do not emerge as wronged victims.
6 February 2011
Subscribe to:
Posts (Atom)