RH LAW ON CENTER STAGE

Joaquin G. Bernas, S.J.

I have listened to more than ten hours of oral arguments on the constitutionality or unconstitutionality of the Reproductive Health Law.  No, I did not make a martyr of myself in the session hall of the Supreme Court.  But thanks to the Supreme Court website I was able to listen to two five-hours of not exactly scintillating sessions through my computer and at my leisure.  More five-hour sessions are promised.

So far we have heard two lawyers both arguing against constitutionality.  I admire the patience of the justices.  First I heard them bombarded with arguments heavily medical and biological in nature.  They evoked the comment of one Justice that perhaps they should first go to the Food and Drug Administration for an opinion on the safety of the drugs they were against.  I did not hear the name of the drugs which are considered culprits.

Second I also heard arguments on freedom of speech, free exercise of religion heavily laced with arguments from moral theology.  This one evoked the comment that perhaps the matter should be brought to the Congregation of the Faith in Rome.

The debate, of course, is by no means finished and it will go on with sustained intensity.  The battle lines will continue to be drawn along moral fronts, often dependent on factual issues and where our people divide largely on the basis of religious belief, and of course along constitutional lines.  I am also aware that people are often tempted to consider whatever they do not agree with as unconstitutional. 

I have written about constitutional issues and so let me recall some that are being dealt with in the oral arguments and the background of the position I have taken on those issues.

An area of constitutional law which cannot be avoided is Article II entitled

“Declaration of Principles and State Policies.”  The “policies” referred to are found in Sections 7 to 28.  Except for one or two of them, the Sections do not yet contain commands that are ready for implementation.  Unlike the provisions of the Bill of Rights, they await implementing legislation from Congress. 

There is a wide range of options open for Congress to use in implementing them.  In the process of choosing, there necessarily will be a wide room for debate to determine what is best for the welfare of the nation.  In the debate, conflicting value judgments will come into play. But as the Compendium on the Social Teaching of the Church notes, “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.”

Two provisions in Article II will play a starting role in the constitutional debate.  They are Sections 11 and Section 12.  They have already surfaced in the ongoing oral arguments.

Section 11 says: “The State values the dignity of every human person and guarantees full respect for human rights.”  But this provision will not give the judiciary a handle for passing judgment on the constitutionality of the RH Bill.  It is a motherhood statement.  And the supporters of the RH Law will simply say that this is precisely the reason why they have made an effort to make the Bill reflect this non-debatable value.  But the opponents of the RH Law say that the law promotes a “contraceptive mentality” that leads to disrespect for human rights.

Section 12 has a little more to say.  It says: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.”

The first sentence has been the subject of a number of Court decisions which clearly declare that how to protect the family is for Congress to decide. The Constitution makes no specific prescription.  

As for the second sentence, the protection given to the unborn is “from conception,” that is, from the earliest moment of life.   In my earlier writings I have taken the position that the earliest that life begins is at the moment of fertilization.  This is enough to justify the prohibition of abortion clearly repeated in the RH Bill.  But it says nothing about what to prohibit before life begins.

This brings us to the use of contraceptive methods.  There are those who argue that contraception kills life.  That is true if the contraceptive means used have the effect of expelling a fertilized ovum.  You don’t kill life that does not yet exist.  Those who argue that contraceptives currently in the market kill life must be able to point to the precise contraceptive devises that are abortive. A sweeping generalization is irresponsible. 

Very much involved in the debate about contraception is the matter of religious liberty. We have to be aware of the fact that we live in a pluralist society where various religious groups disagree about the morality of artificial contraception.

Freedom of religion 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. 

I hope to say more about this later.

29 July 2013

MORE AUTONOMY FOR MUSLIM MINDANAO

Towards boader autonomy for Muslim Mindanao

The move for broader and broader autonomy for Muslim Mindanao is continuing beyond what has already been outlined in the 1987 Constitution.  The basic constitutional principle on the subject says “There shall be created autonomous regions in Muslim Mindanao and the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive  historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.”

Forming autonomous regions is in fact more than just a question of privilege for these two regions.  It is a question of right.  One of the riches of the Filipino nation is the diversity of cultures found in it.  These diverse cultures, as a matter of right, must be allowed to flourish.  No one culture should be allowed to crush any other.  Thus, the basis for the establishment of autonomous regions is homogeneity of the culture of the area and distinctiveness from other cultures, and not just geographic accident. 

The phrase "Muslim Mindanao" should not be construed as meaning that all of Mindanao is Muslim.  It simply means those areas of Mindanao which are predominantly Muslim. The phrase Muslim Mindanao is used in much the same way that the phrase Christian Philippines does not suggest that all of the inhabitants of the Philippines are Christian.

The creation of the autonomous regions, however, does not mean the establishment of sovereignties distinct from that of the Republic.  These autonomous regions can be established only "within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines."

Autonomy in the Cordilleras has been at a stand-still.  Attempts at formulating a Basic Law for the Cordilleras have not been to the satisfaction of the inhabitants and therefore have been rejected.

Muslim Mindanao has succeeded in implementing an Organic Act which for several years now has formed the fundamental structure for the government of the region.  The Organic Act, however, is now slowly on the way to being replaced by the Organic Act for the Bangsamoro.  The process of replacement started with the approval of the Framework Agreement for the Bangsamoro.  But that was all it was – a framework.  The negotiators have been feverishly working to put flesh on the framework. 

The approval by the negotiators of the wealth sharing agreement is a major step in the direction of fortifying the desired autonomy.  The document embodying the agreement is entitled “Annex on Revenue Generation and Wealth Sharing.”  Principally it consists of formulas for the sharing of tax revenues and revenues from rich natural resources that are found in the territory. The details are found in the document.

The importance of the annex is highlighted thus: “The parties acknowledge that wealth creation (or revenue creation and sourcing) is important for the operation of the Bangsamoro, considering that that the Bangsamoro territory is among the most underdeveloped in the Philippine due to the decade-long conflict.  Moreover, the existing tax base therein is very limited.  There is a need to bridge the financial gap between the Bangsamoro’s prospective needs and the revenues being created therein.  In this way, the Bangsamoro can catch up with the more progressive areas of the country.”

What follows next?  A lot more work. 

An important point to remember is that the autonomous region is governed by two organic acts: the 1987 Constitution and the Organic Act for Muslim Mindanao.  When the Framework Agreement was announced we were assured that its completion will not involve constitutional amendment.  If it should and if the President wants it to go through, he may have to modify his position on amending the current Constitution.  Constitutional amendment  will require tremendous amount of work, not to mention controversies.

At this stage of the negotiations dealing only with wealth creation and sharing, however, I do not see any need for constitutional amendment.  What has been touched so far does not involve the control and development of natural resources but only taxes and revenues from natural resources found in the territory.  To a great extent this can be handled by ordinary legislation. 

However, the determination of which areas containing natural resources can be covered as special sources of revenue may have to await the determination of the extent of the Bangsamoro territory.  As I see it, the territory envisioned for the Bangsamoro is larger than what is covered under the Organic Act for Muslim Mindanao.  Under the 1987 Constitution the territories included in the Autonomous Region covered only provinces cities and municipalities and geographic areas which voted for inclusion in the Autonomous Region.  The Framework Agreement envisions a larger area.

So far, the general reaction to the draft revenue creation and sharing agreement has been positive.  Although it is still a draft, the negotiators deserve congratulations for the hard work.

22 July 2013

RH CONSCIENTIOUS OBJECTORS

RH Conscientious Objectors

Joaquin G. Bernas, S.J.

The story is told, true, I am assured, of a priest in the staff of a seminary who was feeling overwhelmed by the number of seminarians going to his room for confession.  In self defense he put up a sign outside his room saying “Mortal Sins Only.” It effectively shortened the line of troubled penitents. 

I would not consider this an example of a conscientious objector, but it is remotely analogous.  The name “conscientious objector” is of military origin.  It refers to people who refuse to go to war for religious reasons.  Examples abound which date from as early as the 16^th century wars  when William the Silent granted the Dutch Mennonites the right to refuse military service in exchange for a monetary payment.  Since then  many people have been executed, imprisoned, or otherwise penalized for acting according to their beliefs.  But as Muhammad Ali put it, “"I ain't got no quarrel with them Viet Cong . . . They never called me nigger."

The implementation of the Reproductive Health Law does not involve warfare but it has occasioned intense skirmishing among various religious groups.  In an earlier article I wrote about the controversy as a war of religions.  It is no surprise therefore that the concept “conscientious objector” has crept into the RH Law. 

In the enumeration of punishable acts Section 23(3) mentions: “(3) [Refusal] to extend quality health care services and information on account of the person’s marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible . . .”

The Rules and Regulations for implementing this provision elaborate on penal provision.  The Rules make a distinction between Private Skilled Health Professional who are Conscientious Objectors and Public Skilled Health Professionals, i.e., between private practitioners and government employees.  For the private health practitioner, the Rules and Regulations allow him to put up a sign on the door to his office “enumerating the reproductive health services he or she refuses to provide.”  The sign would be as effective as the “Mortal Sins Only” sign of the seminary priest.

For the public health professional, however, it is more complicated. “a The skilled health professional shall explain to the client the limited range of services he/she can provide; b) Extraordinary diligence shall be exerted to refer the client seeking care to another skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service within the same facility;  c) If within the same health facility, there is no other skilled health professional or volunteer willing and capable of delivering the desired reproductive health care service, the conscientious objector shall refer the client to another specific health facility or provider that is conveniently accessible in consideration of the client’s travel arrangements and financial capacity; d) Written documentation of compliance with the preceding requirements.”

For some opponents of the RH Law this is definitely not enough.  Aside from the fact that it can be a cumbersome procedure, the opponents would also consider this equivalent to making them tell others where they can receive sinful medical procedure aside from violating a person’s freedom not to say anything.  Equivalently they would consider it telling a person to jump out of the frying pan into the fire! 

If they really are so conscientious, how would they in conscience provide for the health needs of those who cannot afford private health services?  Is it not a fact that referrals to other doctors is common in the medical profession.  If a doctor feels that he or she is not competent to handle a problem, it is normal for him or her to refer the patient to someone else more competent. Competence or incompetence, after all, is a very broad term.  It can include religious incompetence.

But then, Rejoice! The RH Law might be the occasion for the creation of more Filipino saints.  Look at possible penalties involved for prohibited acts:

“SEC. 24. Penalties. – Any violation of this Act or commission of the foregoing prohibited acts shall be penalized by imprisonment ranging from one (1) month to six (6) months or a fine of Ten thousand pesos (P10,000.00) to One hundred thousand pesos (P100,000.00), or both such fine and imprisonment at the discretion of the competent court: Provided, That, if the offender is a public officer, elected or appointed, he/she shall also suffer the penalty of suspension not exceeding one (1) year or removal and forfeiture of retirement benefits depending on the gravity of the offense after due notice and hearing by the appropriate body or agency.”

How many public functionaries in the health services can avail of these opportunities for beatification?  Although the possible penalties do not include beheading or burning at the stake, they are tough enough to make saints or blessed out of ordinary public servants.

You might say that they would be foolish to risk such punishment.  But saints are fools for Christ, are they not!

15 July 2013