TO ABOLISH OR TO RESTRUCTURE

To Abolish or to Restructure?

Joaquin G. Bernas, S.J.

In my column last week I cited the 1994 decision upholding the constitutionality of pork barrel. The argument that had been used against the Fund was that, although appropriating money was the function of Congress, spending it was the prerogative of the executive department and Congress should not interfere with spending.  The Court ruled in favor of the Fund saying that, as the law stood, what the law allowed congressmen to do was simply to recommend projects.  If the recommended projects qualified for funding under the CDF, it was the President who would implement them.

Prior to the approval of the 1994 General Appropriations Act, pork barrel, which had been recognized by the 1935 Constitution as a legitimate institution, had not received much attention.  In the years from 1972 to 1986, there was no talk about pork barrel.  But those were unusual years because, for all practical purposes, President Marcos controlled the national treasury, both pork and beef.  After the restoration of democratic processes and during the years from 1986 to 1993, pork barrel was not a hot subject of debate.  It was only after the approval of 1994 General Appropriations Act that pork barrel became a frequent front page subject for debate.

One reason for this, of course, was that the amount involved had grown. In 1994 the total amount involved was 2.9 billion pesos.  By 2013, the total amount appropriated had ballooned to 24.7 billion.  But when we were discussing pork barrel in class in 1996, one of my students who had been studying the phenomenon, said to me that the amount alone could not be the reason for the heated dispute over the pork barrel.  After all, the amount involved was only a small fraction of the total budget.  He put the blame, you might find it strange, on the 1994 decision of the Supreme Court.  But I think, more appropriately, the blame could be put on the 1994 Congress.  How so?

My 1996 student pointed out to me that earlier pork barrel laws specifically stated that the money could be released only with the approval of the President, and that the Budget Secretary should promulgate rules and regulations for pork barrel funds.  Such requirements were removed by the GAA for FY 1994, R.A. 7663.  R.A. 7663 instead simply said: “The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash Allocation directly to the assigned implementing agency not later than five (5) days after the beginning of each quarter upon submission of the list of projects and activities by the officials concerned.”

Who are these “officials concerned”?  They are Senators, Representatives and the Vice President.  There is nothing in the 1994 law about prior approval by the President.  The further implication seems to be that, if no list was submitted by the “officials concerned,” the President could not use the fund for other necessary projects.  In effect, R.A. 7663 gave to the members of Congress control over the release of approved funds.

I have not checked whether or how long this provision of R.A. 7663 survived in subsequent General Appropriation Acts.  I have been able to check only the provisions of the GAA for FY 2013 and I did not see a copy of the 1994 provision.  However, I did see a provision which indicates that there still is a continuing role for members of Congress in the actual implementation of the fund.  The allowable extent is not clear.  But if we may judge from continuing media reports on how, for instance, the indigents in hospitals can receive funds through legislators, the role of legislators is still extensive – extensive enough for them to be able to use their clout for reelection purposes.

The important question now is: What will the President do about it?  How will he respond to the rally of last week?  The Budget Secretary says that the 2014 Budget is already set.  I do not know whether this means that what happened under the 2013 GAA can still happen now.

The Inter-Agency Anti-Graft Coordinating Council manned, or “womanned”, by what Scripture might call mulieres fortes, is encouraging.  But its focus is on the investigation of the misuse of PDAF, the prosecution of legislators and others who have misused it, and the recovery of assets that have been wrongfully taken.  Responsibility for making these a success belongs to the executive department. How much success will the executive achieve?

Preventing past abuses from happening again cannot be achieved by the executive department alone.  We have to remember that PDAF is about the disposition of money of the public.  And the constitutional guardian of the public treasury is Congress.  Although the year’s budget is prepared by the executive department, it is not only much influenced by the input of members of Congress but it is also ultimately dependent on what Congress approves.  True, the President can veto items in what Congress produces.  But the President can do nothing if Congress overrides his veto.

What all this means is that what will happen to the pork barrel will test the President’s leadership – his biggest test, perhaps.

2 September 2013

THE CONSTITUTION AND RH LAW (continued)

LIBERTY OF SPEECH, OF RELIGION, AND EQUAL PROTECTION IN THE RH LAW

(continued)

Joaquin G. Bernas, S.J.

In my column last week I said that I would take up the RH Lawprovision on age appropriate education of children in public and private schools. I consider the subject very important since the concern of people about it is similar to the concern about religious instruction in public schools. I would not therefore consider it inappropriate for jurisprudence to look into the constitutional law on religious instruction in public schools. Sex education and religious instruction are closely related to morality education.

There are two constitutional provisions which should be considered.

First, Article II, Section 12 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.” This means that in the matter of education the power of the state is merely auxiliary to the primary right of parents.

Second, Article XIV, Section 4(3) emphasizes even more the primary right of parents: “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.”

Considering that sexual morality is closely related to religion, the rule for religious instruction mutatis mutandis may analogously if not strictly apply to sexual education.

For the moment, however, all we have about sexual education are the guidelines to be followed by officials in formulating the curriculum. They are the following:

Section 11.01 Age- and Development-Appropriate Reproductive Health Education. The State shall provide age- and development-appropriate responsible parenthood and reproductive health education to adolescents and school-age children which shall be taught by adequately trained teachers and educators in formal and non-formal educational system and integrated in relevant subjects . . . .:

Provided, That flexibility in the formulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed only after consultations with parents-teachers-community associations, school officials, civil society organizations, and other interest groups.

The Department of Education (DepEd) shall formulate a curriculum including concepts and messages on reproductive health, which shall be used by public schools. Private schools may adopt the DepEd curriculum or develop their own curriculum subject to approval by DepEd.

I am confident that that those charged with the responsibility of formulating the policies for age appropriate education will have the integrity and wisdom to respect constitutional commands on education. Before making our judgment, therefore, let us wait. We have no right to presume that the critics of the RH Law are the only persons who have noble intentions about the public welfare.

Let me move to the issue of equal protection.

The separate mention and separate provision for private schools in this matter has been criticized as a violation of equal protection. Even first year law students, however, know that equal protection is not an absolute rule. It allows for different treatment based on real differences. And there are substantial differences between public schools and private schools, especially religious schools, enough to allow different treatment of different schools. Jurisprudence has been doing this.

Another equal protection argument that has been brought up is that the state is being guilty of unconstitutional discrimination when it pays so much attention to and is ready to spend on enormous amount of money for reproductive health while not paying as much attention to other health issues. But in promoting the general welfare the state cannot be expected to attend to all problems at the same time. Prudence requires that the state prioritize which battles to fight and when.

I do not know what other major or minor arguments might be brought up by opponents of the RH Law. Whatever other issues may arise, one underlying principle that must be kept in mind is that the current Philippine government is a secular one. It is not governed by the Vatican nor by the Philippine Hierarchy nor by the religious majority of our population. Saying that, however, does not mean saying that our government is immoral or amoral. It is merely saying that it is different and that we must recognize and respect differences. As the Compendium on the Social Teaching of the Catholic Church 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.”

12 August 2013

SPEECH, RELIGION, AND EQUAL PROTECTION

Speech,  religion, and equal protection in the RH LAW

Joaquin G. Bernas, S.J.

In the course of the Supreme Court oral arguments on the RH Law, the first issue that came up was the meaning of “conception” in the constitutional provision which says “The State . . .  shall equally protect the life of the mother and the life of the unborn from conception.” The view which, to mind, prevailed during the first day of oral arguments was that conception happens at fertilization and not at implantation in the uterus.  This meaning is also implicit in the definition of abortion as the expulsion of a fetus anytime before its viability.  Expulsion after viability is already infanticide, no longer abortion.

The other issues that have arisen are liberty of speech, of religion, and equal protection.

I have been involved in the discussions of these issues even while the RH Law was still being debated in Congress  and I feel that it is my civic duty to continue my participation until the Supreme Court arrives at a decision. I propose to discuss the issues of speech, religion, and equality as they have cropped up in the oral arguments.

Any student of constitutional law will immediately see that by their nature the constitutional doctrine on speech and religion are closely intertwined.  Freedom of speech includes not just the right to speak but also the right not to speak.  Freedom of religion for its part involves not just the right to choose what to believe but also and especially the right to externalize or not to externalize one’s belief.  Externalization of one’s belief is done through speech or other forms of communication whether oral or symbolic.  Freedom of religion is violated when one is either forced to speak or in any manner communicate his belief or when one is prevented from expressing his religious belief.

All these take place in a pluralistic society where government may not prefer one religion over other religions.  It is against this background that I propose to discuss provisions of the RH Law which deal with speaking or not speaking about religion.

We must understand that the health workers under the RH Law have the public duty to implement its provisions for the common good and not just for the good of some religious adherents. Moreover, a public duty is a public trust to be exercised for the good of all and not for the good of the preferred religion of a majority.  And since our government is under a democratic system which respects plurality of religions, and considering that the Law is about sexual practices about whose morality our people are divided, it is inevitable that some health workers may encounter duties which their religion do not allow them to do.  This is recognized by the law and the Implementing Rules and Regulations contains a proviso on this matter, namely:

 “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 . . .”

According to critics of the RH Law, however, for all its noble intention, this Rule violates freedom of speech and freedom of religion resulting in a two-fold violence of the conscience of the health worker.  First, by obliging the health worker to make a referral, the law is obliging him to speak contrary to his right not to speak.  Second, by obliging the health worker to make the referral, the health worker is being obliged to send the patient to where she or he can sin thereby making the health worker who makes the referral a participant in the sin.

Indeed, if the health worker believes that these are sinful acts which she or he cannot perform without violating his or her conscience, he or she should not be forced to do so.  Her belief, whether right or wrong in the view of government,  must be honored.  But the next question is, considering that this inability to perform a legal duty strikes at the very heart of the purpose for which the health center exists, is it reasonable or even just for the person to cling to the job?  In a labor law situation, when a laborer on strike refuses to follow a return to work order, he will not be forced to return to work, but he may have to look for another job. Or should we ask that such RH worker be retired as a pensionado martyr?

Another  objection which RH Law critics bring up is against the provision on age appropriate sexual education in public and private schools.  To evaluate this criticism intelligently it is necessary to see the provision on the subject.   It should be noted that the law does not yet attempt to impose a specific program.  Rather, it provides that a program be formulated following certain careful guidelines for the manner in which the program should be formulated. Since the law does not yet create the program itself, this is not yet the time to challenge this aspect of the RH Law.  Wait until the program is formulated.  Before that, there is no “case” to bring to Court. 

I shall take this up again next time since I am running out of space.

5 August 2013