Today, June 6, 2011, the Ateneo Law School celebrates its Diamond Jubilee. Allow me, therefore, to “boast” a little.
The Law School could have been much older than seventy-five had it not been for the vicissitudes of Jesuit history. Not that age is necessarily the measure of greatness, but grey hair can command some reverence.
The story begins when the Spanish colonial government felt the need for lawyers while Manila had neither legal courts nor schools of law to train lawyers. The Audiencia, forced to fill the gap, exercised both criminal and civil justice – to nobody’s satisfaction. The situation clamored for a solution. Thus it was that in 1717 King Philip V of Spain established three chairs of law in Manila -- one for Canon Law, another for Civil Law, and a third for Roman Law. Unfortunately the chairs were not attached to any school and for eight years not a single student came to attend lectures.
Enter the Jesuits. The Manila Audiencia turned to the existing Jesuit school, Colegio de San Ignacio, and there established law professorships. Among the distinguished professors was the 27 year old Jesuit Father Pedro Murillo Velarde who arrived in Manila in 1723. Father Murillo Velarde had studied law in the University of Granada and taught law at the world famous University of Salamanca.
Alas, the law school enterprise had to suffer the fate of the Jesuits. In 1767 King Charles III Spain decreed the expulsion of Jesuits from all Spanish dominions. The decree was carried out in the Philippines in 1768. Thus ended the first Jesuit law school enterprise in Manila.
Worse yet, Pope Clement XIV, under strong pressure from the Bourbons of France, Spain, and Naples, suppressed the Society of Jesus. The decree of suppression, however, needed the conformity of reigning monarchs. Empress Catherine of Russia chose not to implement the suppression and Jesuits found refuge in her domain.
Jesuit resurrection came in 1814 when Pope Pius VII restored the Society of Jesus throughout the world. Queen Isabella II of Spain followed with the request for Jesuits to return to the Philippines. In 1850, or 150 years ago last year, ten Jesuits arrived in Manila with instructions to evangelize the mountain tribes of Mindanao and other islands. Soon enough, however, they were persuaded to establish a school, Ateneo Municipal de Manila, which would later evolve into what is now the Ateneo de Manila University.
It was not, however, until June 6, 1936, by then under American Jesuits, that the Ateneo de Manila decided to open a school of law.
The first Dean of Law was Manuel Lim. Legal luminaries were recruited as professors from the Supreme Court, the Court of Appeals, the legislature and from among private practitioners. Classes were held in the main building of the Ateneo between Dakota Street and Taft Avenue along Padre Faura. In large airy classrooms students dug into Manresa, Sanchez Roman and Viada and into a gradually developing Philippine and American jurisprudence and other legal literature.
Among the more prominent law school campus figures were Raul Manglapus, Ernesto Escaler and Felipe Buencamino who brought honor to the school by their debating prowess. The first graduates all passed the Bar Examinations and the class valedictorian of the second batch of graduates, Claudio Teehankee, was the first Atenean to top the Bar examinations. Since then, an enviable tradition of high performance in the Bar Examinations has continued.
Once more, however, law studies in the Ateneo had to be interrupted. In 1941 the nation went to war. Inter arma silent leges.
The entire Ateneo de Manila in Padre Faura was ravaged by war and the Law School did not reopen until 1948. Classes were held in Quonset huts until a modern building, dominated by a statue of St. Thomas More, could be built.
Martial Law in 1972 did not interrupt the running of the school. The participation of students in the struggle for the full restoration of democracy did not affect the high standards of academic excellence.
In 1978 the school moved to De la Costa Street in the Makati business district. But as the number of students and the need for more room grew, another move had to be made. In 1998 the school moved to its present location in Rockwell Center, Makati City.
As the school celebrates its 75th year, what does it have to show?
Its place of honor is now secure in the legal world of the Philippines. Its students have been winning in moot court competitions both local and regional and have won the highly prestigious World Moot Court competition in Washington, D.C. Its graduating students regularly reap the highest percentage of passing in Bar Examinations. Many alumni and alumnae are highly respected in law practice, both traditional and “alternative,.” They are also prominent in the world of legislation, and in local and national executive positions. Its Human rights Center has won world recognition. More and more alumni and alumnae are being appointed to the various levels of the judiciary, including the Supreme Court where two have become Chief Justice.
All that is left is for the current administration, faculty and students of the school to strive to surpass what has been achieved so far. Ad maiorem Dei gloriam.
6 June 2011
Saturday, June 4, 2011
Saturday, May 28, 2011
LEVELS OF DISCOURSE IN RH DEBATE
If the debate on the RH Bill appears often frustrating and sometimes verging on the chaotic, it is largely because the participants in the debate frequently communicate along different levels of discourse thereby evading real engagement. Many rarely make the necessary distinctions, nuancing and clarifications. The result can be like listening to people arguing along different radio frequencies.
But this is largely inevitable for at least two reasons: first, the disagreements can legitimately be along different topics and, second, there is no director who can manage the ordering of topics for discussion. Thus the debate can mix basic constitutional issues, family planning, population control and national development issues, drug control or regulation, and even criminal process in a hodgepodge of confusion.
The debate on the constitutional level alone already offers abundant material for levels of disagreement. The core issues arise from the non-establishment clause and the free exercise clause.
The non-establishment clause, popularly but not always precisely referred to as separation of church and state, can mean different thing for different people. The core meaning is that it prohibits the establishment of a state religion. Historically for the Philippines, it means the denial to the Catholic church of the privileged position it occupied under Spanish sovereignty. Corollary to the cutting down of the privileged position of the Catholic church has been the recognition of the equal position of other religions.
Beyond the prohibition of a state religion, non-establishment also means the prohibition of the use of public resources for the support or for the prohibition of religion. But public resources may be used for a legitimate secular purpose even if incidental benefit to religion might arise. The use of public money, for instance, for making safe contraceptive devises available to the poor falls under this aspect of the non-establishment clause.
Whichever way the RH debate is concluded, since the RH Bill’s avowed purpose is secular, it can be accommodated within the non-establishment clause. But the more delicate issue is the free exercise clause.
It means the freedom to act according to one’s religious belief and the freedom from being compelled to act contrary to one’s religious belief. But there are those who argue that the RH debate is not about religion but about ethics and natural law. Even assuming that this is so, one must still ask, “Whose natural law? Whose ethical principles?” The constitution also protects “natural law” belief or disbelief, if not through the religion clause, then through the free speech clause, where speech is involved, and through the due process and equal protection clauses when action is involved. But I myself hold that protected religion in the Constitution includes beliefs that are not traditionally theistic such as Buddhism, ethical culture and secular humanism. I view protected religion in the Constitution as encompassing beliefs and views which illuminate the "very ground of one's being" and which give life meaning and direction.
Another constitutional issue is the right to life. It involves trying to identify when life begins and when there is contraception and when abortion. The most hilarious argument I have heard on this is that contraception is attempted murder! Whoever said that deserves a medal for I know not what. Moreover, the debate on the right to life includes controversies about family planning, population control and their relation to national development. Controversy on these subjects in the Philippines has had a long history involving the Catholic Church, government agencies, non-governmental organizations and international organizations.
Related to these are sex education as well as family life and family values. But as one sociologist has written, “The charge is made that the RH bill will destroy the Filipino family. On the basis of more than 25 years of pastoral and social work in Payatas, and some seven years sponsoring natural family planning programs, I can say that the family is already at great risk—and not because of contraceptives.”
After the constitutional issues, there are also what I might call pharmacological issues. There are claims, for instance, that there are contraceptive drugs in the market that cause abortion or are carcinogenic. What I would like to see is an authoritative identification of the drugs that are said to be abortifacient or carcinogenic so that they can be withdrawn from the market or their use subjected to medical regulation. So far I have seen only one drug identified as abortifacient, namely postinor. This was withdrawn from the market by the Food and Drug and Administration. But the identification of drugs claimed to be abortifacient or carcinogenic should be authoritative in a manner that is fair to drug manufacturers and to those who rely on them for legitimate medical purposes.
Finally, however, the fate of the RH Bill will be determined by Congress. Already we can see that some members of Congress are hedging their bets. The issues involved in the RH Bill are real issues. But politicians are also thinking of the next election! Some of them will probably heave a sigh of relief if the RH Bill disappears from the scene the way the impeachment of the Ombudsman disappeared from the scene.
30 May 2011
But this is largely inevitable for at least two reasons: first, the disagreements can legitimately be along different topics and, second, there is no director who can manage the ordering of topics for discussion. Thus the debate can mix basic constitutional issues, family planning, population control and national development issues, drug control or regulation, and even criminal process in a hodgepodge of confusion.
The debate on the constitutional level alone already offers abundant material for levels of disagreement. The core issues arise from the non-establishment clause and the free exercise clause.
The non-establishment clause, popularly but not always precisely referred to as separation of church and state, can mean different thing for different people. The core meaning is that it prohibits the establishment of a state religion. Historically for the Philippines, it means the denial to the Catholic church of the privileged position it occupied under Spanish sovereignty. Corollary to the cutting down of the privileged position of the Catholic church has been the recognition of the equal position of other religions.
Beyond the prohibition of a state religion, non-establishment also means the prohibition of the use of public resources for the support or for the prohibition of religion. But public resources may be used for a legitimate secular purpose even if incidental benefit to religion might arise. The use of public money, for instance, for making safe contraceptive devises available to the poor falls under this aspect of the non-establishment clause.
Whichever way the RH debate is concluded, since the RH Bill’s avowed purpose is secular, it can be accommodated within the non-establishment clause. But the more delicate issue is the free exercise clause.
It means the freedom to act according to one’s religious belief and the freedom from being compelled to act contrary to one’s religious belief. But there are those who argue that the RH debate is not about religion but about ethics and natural law. Even assuming that this is so, one must still ask, “Whose natural law? Whose ethical principles?” The constitution also protects “natural law” belief or disbelief, if not through the religion clause, then through the free speech clause, where speech is involved, and through the due process and equal protection clauses when action is involved. But I myself hold that protected religion in the Constitution includes beliefs that are not traditionally theistic such as Buddhism, ethical culture and secular humanism. I view protected religion in the Constitution as encompassing beliefs and views which illuminate the "very ground of one's being" and which give life meaning and direction.
Another constitutional issue is the right to life. It involves trying to identify when life begins and when there is contraception and when abortion. The most hilarious argument I have heard on this is that contraception is attempted murder! Whoever said that deserves a medal for I know not what. Moreover, the debate on the right to life includes controversies about family planning, population control and their relation to national development. Controversy on these subjects in the Philippines has had a long history involving the Catholic Church, government agencies, non-governmental organizations and international organizations.
Related to these are sex education as well as family life and family values. But as one sociologist has written, “The charge is made that the RH bill will destroy the Filipino family. On the basis of more than 25 years of pastoral and social work in Payatas, and some seven years sponsoring natural family planning programs, I can say that the family is already at great risk—and not because of contraceptives.”
After the constitutional issues, there are also what I might call pharmacological issues. There are claims, for instance, that there are contraceptive drugs in the market that cause abortion or are carcinogenic. What I would like to see is an authoritative identification of the drugs that are said to be abortifacient or carcinogenic so that they can be withdrawn from the market or their use subjected to medical regulation. So far I have seen only one drug identified as abortifacient, namely postinor. This was withdrawn from the market by the Food and Drug and Administration. But the identification of drugs claimed to be abortifacient or carcinogenic should be authoritative in a manner that is fair to drug manufacturers and to those who rely on them for legitimate medical purposes.
Finally, however, the fate of the RH Bill will be determined by Congress. Already we can see that some members of Congress are hedging their bets. The issues involved in the RH Bill are real issues. But politicians are also thinking of the next election! Some of them will probably heave a sigh of relief if the RH Bill disappears from the scene the way the impeachment of the Ombudsman disappeared from the scene.
30 May 2011
Sunday, May 22, 2011
MY STAND ON THE RH BILL
I have been following the debates on the RH Bill not just in the recent House sessions but practically since its start. In the process, because of what I have said and written, (where I have not joined the attack dogs against the RH Bill), I have been called a Judas by a high ranking cleric, I am considered a heretic in a wealthy barangay where some of whose members have urged that I should leave the Church (which is insane), and one of those who regularly hear my Mass in the Ateneo Chapel in Rockwell came to me disturbed by my position. I feel therefore that I owe some explanation to those who listen to me or read my writings.
First, let me start by saying that I adhere to the teaching of the Church on artificial contraception even if I am aware that the teaching on the subject is not considered infallible doctrine by those who know more theology than I do. Moreover, I am still considered a Catholic and Jesuit in good standing by my superiors, critics notwithstanding!
Second, (very important for me as a student of the Constitution and of church state relations) I am very much aware of the fact that we live in a pluralist society where various religious groups have differing beliefs about the morality of artificial contraception. But 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. Hence, the state should not prevent people from practicing responsible parenthood according to their religious belief nor may churchmen compel President Aquino, by whatever means, to prevent people from acting according to their religious belief. 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.”
Third, I am dismayed by preachers telling parishioners that support for the RH bill ipso facto is a serious sin or merits excommunication! I find this to be irresponsible.
Fourth, I have never held that the RH Bill is perfect. But if we have to have an RH law, I intend to contribute to its improvement as much as I can. Because of this, I and a number of my colleagues have offered ways of improving it and specifying areas that can be the subject of intelligent discussion. (Yes, there are intelligent people in our country.) For that purpose we jointly prepared and I published in my Inquirer column what we called “talking points” on the bill.
Fifth, specifically I advocate removal of the provision on mandatory sexual education in public schools without the consent of parents. (I assume that those who send their children to Catholic schools accept the program of Catholic schools on the subject.) My reason for requiring the consent of parents is, among others, the constitutional provision which recognizes the sanctity of the human family and “the natural and primary right of parents in the rearing of the youth for civic efficiency and the development of moral character.” (Article II, Section 12).
Sixth, I am pleased that the bill reiterates the prohibition of abortion as an assault against the right to life. Abortifacient pills and devises, if there are any in the market, should be banned by the Food and Drug Administration. But whether or not there are such is a question of scientific fact of which I am no judge.
Seventh, I hold that there already is abortion any time a fertilized ovum is expelled. The Constitution commands that the life of the unborn be protected “from conception.” For me this means that sacred life begins at fertilization and not at implantation.
Eight, it has already been pointed out that the obligation of employers with regard to the sexual and reproductive health of employees is already dealt with in the Labor Code. If the provision needs improvement or nuancing, let it be done through an examination of the Labor Code provision.
Ninth, there are many valuable points in the bill’s Declaration of Policy and Guiding Principles which can serve the welfare of the nation and especially of poor women who cannot afford the cost of medical service. There are specific provisions which give substance to these good points. They should be saved.
Tenth, I hold that public money may be spent for the promotion of reproductive health in ways that do not violate the Constitution. Public money is neither Catholic, nor Protestant, nor Muslim or what have you and may be appropriated by Congress for the public good without violating the Constitution.
Eleventh, I leave the debate on population control to sociologists.
Finally, I am happy that the CBCP has disowned the self-destructive views of some clerics.
22 May 2011
First, let me start by saying that I adhere to the teaching of the Church on artificial contraception even if I am aware that the teaching on the subject is not considered infallible doctrine by those who know more theology than I do. Moreover, I am still considered a Catholic and Jesuit in good standing by my superiors, critics notwithstanding!
Second, (very important for me as a student of the Constitution and of church state relations) I am very much aware of the fact that we live in a pluralist society where various religious groups have differing beliefs about the morality of artificial contraception. But 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. Hence, the state should not prevent people from practicing responsible parenthood according to their religious belief nor may churchmen compel President Aquino, by whatever means, to prevent people from acting according to their religious belief. 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.”
Third, I am dismayed by preachers telling parishioners that support for the RH bill ipso facto is a serious sin or merits excommunication! I find this to be irresponsible.
Fourth, I have never held that the RH Bill is perfect. But if we have to have an RH law, I intend to contribute to its improvement as much as I can. Because of this, I and a number of my colleagues have offered ways of improving it and specifying areas that can be the subject of intelligent discussion. (Yes, there are intelligent people in our country.) For that purpose we jointly prepared and I published in my Inquirer column what we called “talking points” on the bill.
Fifth, specifically I advocate removal of the provision on mandatory sexual education in public schools without the consent of parents. (I assume that those who send their children to Catholic schools accept the program of Catholic schools on the subject.) My reason for requiring the consent of parents is, among others, the constitutional provision which recognizes the sanctity of the human family and “the natural and primary right of parents in the rearing of the youth for civic efficiency and the development of moral character.” (Article II, Section 12).
Sixth, I am pleased that the bill reiterates the prohibition of abortion as an assault against the right to life. Abortifacient pills and devises, if there are any in the market, should be banned by the Food and Drug Administration. But whether or not there are such is a question of scientific fact of which I am no judge.
Seventh, I hold that there already is abortion any time a fertilized ovum is expelled. The Constitution commands that the life of the unborn be protected “from conception.” For me this means that sacred life begins at fertilization and not at implantation.
Eight, it has already been pointed out that the obligation of employers with regard to the sexual and reproductive health of employees is already dealt with in the Labor Code. If the provision needs improvement or nuancing, let it be done through an examination of the Labor Code provision.
Ninth, there are many valuable points in the bill’s Declaration of Policy and Guiding Principles which can serve the welfare of the nation and especially of poor women who cannot afford the cost of medical service. There are specific provisions which give substance to these good points. They should be saved.
Tenth, I hold that public money may be spent for the promotion of reproductive health in ways that do not violate the Constitution. Public money is neither Catholic, nor Protestant, nor Muslim or what have you and may be appropriated by Congress for the public good without violating the Constitution.
Eleventh, I leave the debate on population control to sociologists.
Finally, I am happy that the CBCP has disowned the self-destructive views of some clerics.
22 May 2011
Saturday, May 7, 2011
AFTER RESIGNATION, WHAT?
Last Friday, May 6, the resignation of Merceditas Gutierrez as Ombudsman took effect. After she made her announcement, the reactions were varied. The Senate President felt relieved for various reasons. An impeachment trial would take up much of the Senate’s time and money and at the expense of other important matters the Senate has to attend to. Some of those who had pushed for her impeachment were disappointed but for different reasons. Some thought that she should have stayed on to fight her battle in the Senate while others missed the opportunity of gaining political capital from the drama of an impeachment trial. Some also saw humor in the fact that the Senators would not be able to wear the robes they had ordered for the occasion. (I recall that on the first day of the Estrada impeachment trial the Senators wore robes. Realizing perhaps that the spectacle would border on the ridiculous, they soon enough gave up the idea.)
Now that she has resigned, what else can be done? The clear law on the subject is that “judgment in cases of impeachment shall not extend further than the removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.” Since, however, there was no impeachment trial and Ms. Gutierrez has chosen to be just another citizen, with greater reason, whatever it was that she was charged with in the impeachment case can be brought up in a criminal or administrative case.
I cannot pretend to know what her reasons were for deciding to avoid impeachment through resignation and face prosecution instead. I can see some good reason in favor of her choice. For one, in a criminal prosecution proof beyond reasonable doubt is needed for conviction. In an impeachment trial, the quantum of proof needed for conviction is not very clear and can be colored very much by political consideration. For another, live television coverage is not allowed in criminal prosecution; hence she would not be a victim of political grandstanding which can take place in an impeachment trial.
An interesting question, however, is whether the impeachment trial can still proceed even after her resignation. There is opinion to the effect that, since the possible penalties in an impeachment are removal and disqualification, impeachment can still proceed for the purpose of the penalty of disqualification. I recall that there is American state jurisprudence to this effect; but there are good reasons for not following this opinion for our purposes. For one, an essential requisite for a person to be made subject to impeachment is that he or she must be an impeachable officer under the Constitution. So strict is this requirement that the Court has ruled that Congress may not by law add any more to the constitutional list of impeachable officers. Having already resigned from an constitutionally impeachable office, Ms. Gutierrez is no longer an impeachable officer. Another reason is that disqualification can also be achieved through criminal or administrative process. Trying to obtain a disqualification is not worth all the trouble and expense that it will entail for Congress. (Allowing an opportunity for the Senators to wear their red robes is not reason enough for the trouble!)
Without wishing to make any judgment on the performance of Ms Gutierrez or of past Ombudsmen, I suggest that the recent experience of trying to impeach an Ombudsman should be a lesson for those who have the responsibility of choosing who the next Ombudsman will be. The responsibility belongs to the Judicial and Bar Council and, of course, to the President. They should reread what the qualities should be of the person to whom the responsibility is to be given. I suggest a reading of the deliberations of the Constitutional Commission on the office of Ombudsman.
Beyond the academic and experience qualifications required, the most important is what Section 8, Article XI calls “recognized probity and independence.” When the sponsor of this provision in the Constitutional Commission was describing what the qualities of the Ombudsman should be, he practically said that he should not only be a saint but should also be known as such. He should be one who can command the confidence and respect of everyone. Let’s hope the JBC and the President will give us one such.
8 May 2011
Now that she has resigned, what else can be done? The clear law on the subject is that “judgment in cases of impeachment shall not extend further than the removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.” Since, however, there was no impeachment trial and Ms. Gutierrez has chosen to be just another citizen, with greater reason, whatever it was that she was charged with in the impeachment case can be brought up in a criminal or administrative case.
I cannot pretend to know what her reasons were for deciding to avoid impeachment through resignation and face prosecution instead. I can see some good reason in favor of her choice. For one, in a criminal prosecution proof beyond reasonable doubt is needed for conviction. In an impeachment trial, the quantum of proof needed for conviction is not very clear and can be colored very much by political consideration. For another, live television coverage is not allowed in criminal prosecution; hence she would not be a victim of political grandstanding which can take place in an impeachment trial.
An interesting question, however, is whether the impeachment trial can still proceed even after her resignation. There is opinion to the effect that, since the possible penalties in an impeachment are removal and disqualification, impeachment can still proceed for the purpose of the penalty of disqualification. I recall that there is American state jurisprudence to this effect; but there are good reasons for not following this opinion for our purposes. For one, an essential requisite for a person to be made subject to impeachment is that he or she must be an impeachable officer under the Constitution. So strict is this requirement that the Court has ruled that Congress may not by law add any more to the constitutional list of impeachable officers. Having already resigned from an constitutionally impeachable office, Ms. Gutierrez is no longer an impeachable officer. Another reason is that disqualification can also be achieved through criminal or administrative process. Trying to obtain a disqualification is not worth all the trouble and expense that it will entail for Congress. (Allowing an opportunity for the Senators to wear their red robes is not reason enough for the trouble!)
Without wishing to make any judgment on the performance of Ms Gutierrez or of past Ombudsmen, I suggest that the recent experience of trying to impeach an Ombudsman should be a lesson for those who have the responsibility of choosing who the next Ombudsman will be. The responsibility belongs to the Judicial and Bar Council and, of course, to the President. They should reread what the qualities should be of the person to whom the responsibility is to be given. I suggest a reading of the deliberations of the Constitutional Commission on the office of Ombudsman.
Beyond the academic and experience qualifications required, the most important is what Section 8, Article XI calls “recognized probity and independence.” When the sponsor of this provision in the Constitutional Commission was describing what the qualities of the Ombudsman should be, he practically said that he should not only be a saint but should also be known as such. He should be one who can command the confidence and respect of everyone. Let’s hope the JBC and the President will give us one such.
8 May 2011
Saturday, April 30, 2011
WAR OF RELIGIONS
The controversy over the RH Bill is becoming or has become a war of religions. Pitted against each other are, on the one hand, “good” Catholics, and, on the other, the Iglesia ni Kristo, Protestant denominations, Muslims and “bad” Catholics. By “bad Catholics” I mean the kind of Catholics whom “good” priests supported by their “good” bishop consider unworthy to enter a Catholic church. And since I myself do not see the variousissues as clear black against white, I have been urged by some “good” Catholics to leave the church before I say anything more on the issue. It is a sad day for the Catholic church which I love.
When I heard about the priest who told those who accept the RH Bill to leave the church, two passages from the New Testament came to mind. I refer, first, to the driving of money changers out of the temple premises. Jesus fashioned a whip out of chords, and drove the “bad guys” out of the premises. But, unlike the driven out “bad Catholics,” the “bad guys” in the New Testament story were not there to pray; they were there to make money. And they were not even in the inner portion of the Temple. Jesus had every right to say that his Father’s house was not meant to be a market place.
Another incident is the story of the woman caught in adultery. She was dragged before Our Lord by “good” people. And the Mosaic law was clear: a woman caught in adultery must be stoned. “Let him who has no sin cast the first stone,” Jesus said. And he bent down to scribble on the ground, to scribble perhaps the names of the accusers. One by one the “good” guys slinked away.
The moral of the story is, which I like to tell those who ask me why I continue to teach “bad guys” in the Ateneo Law School: Christ came to save sinners, even defenders of the RH Bill.
The debate on the RH Bill started in 2008, or perhaps even earlier, but it was interrupted by concern about the coming elections. When the debate resumed in 2009, it was difficult for many, myself included, to be totally for or totally against the RH Bill because it had many facets. I believe that the complexity of the issues presented by the bill is the reason that, while some priests and bishops have been vocal against the bill, others have largely remained silent. And I often wonder how many of them have bothered to study the Bill.
Since 2009, the proposal in the House has undergone some very substantial changes. The original proponents of the Bill have agreed to tone down or eliminate some of the provisions being objected to. Let me enumerate some.
The original bill said that local government units should “give priority to family planning work.” What is now being proposed is that local government units will “help implement this Act.”
With regard to mandatory age-appropriate reproductive health and sexuality education, the proposal now says “Parents shall have the option of not allowing their minor children to attend classes pertaining to Reproductive Health and Sexuality Education.” Moreover, the provision on the ideal family size is being deleted.
Deleted also is the section on employers’ responsibility on reproductive health which merely amplifies what is already provided for in the Labor Code.
Likewise deleted was the specific enumeration of allowable contraceptive devices and methods. Instead, the proposal is for the allowance of contraceptive methods that are in general safe and legal. This would mean a prohibition of contraceptive methods that are abortifacient once they have been scientifically identified. This is what the government did after Postinor was identified as abortifacient.
Will these proposed changes, even if all of them become part of the law, put an end to the debate? Definitely it will not. Very much at the heart of the debate is the teaching on methods of family planning. I do not see the Catholic Church or the other churches yielding on this issue. In the light of this insoluble division, how then should the debate be conducted?
The Catholic Social Teaching on this may be found in what 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.”
Of special application to a country where Catholics are a majority is the teaching of the Compendium on the Social Teaching of the Church which says: “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.” This, too, is the teaching of Dignitatis Humanae. (No. 6)
2 May 2011
When I heard about the priest who told those who accept the RH Bill to leave the church, two passages from the New Testament came to mind. I refer, first, to the driving of money changers out of the temple premises. Jesus fashioned a whip out of chords, and drove the “bad guys” out of the premises. But, unlike the driven out “bad Catholics,” the “bad guys” in the New Testament story were not there to pray; they were there to make money. And they were not even in the inner portion of the Temple. Jesus had every right to say that his Father’s house was not meant to be a market place.
Another incident is the story of the woman caught in adultery. She was dragged before Our Lord by “good” people. And the Mosaic law was clear: a woman caught in adultery must be stoned. “Let him who has no sin cast the first stone,” Jesus said. And he bent down to scribble on the ground, to scribble perhaps the names of the accusers. One by one the “good” guys slinked away.
The moral of the story is, which I like to tell those who ask me why I continue to teach “bad guys” in the Ateneo Law School: Christ came to save sinners, even defenders of the RH Bill.
The debate on the RH Bill started in 2008, or perhaps even earlier, but it was interrupted by concern about the coming elections. When the debate resumed in 2009, it was difficult for many, myself included, to be totally for or totally against the RH Bill because it had many facets. I believe that the complexity of the issues presented by the bill is the reason that, while some priests and bishops have been vocal against the bill, others have largely remained silent. And I often wonder how many of them have bothered to study the Bill.
Since 2009, the proposal in the House has undergone some very substantial changes. The original proponents of the Bill have agreed to tone down or eliminate some of the provisions being objected to. Let me enumerate some.
The original bill said that local government units should “give priority to family planning work.” What is now being proposed is that local government units will “help implement this Act.”
With regard to mandatory age-appropriate reproductive health and sexuality education, the proposal now says “Parents shall have the option of not allowing their minor children to attend classes pertaining to Reproductive Health and Sexuality Education.” Moreover, the provision on the ideal family size is being deleted.
Deleted also is the section on employers’ responsibility on reproductive health which merely amplifies what is already provided for in the Labor Code.
Likewise deleted was the specific enumeration of allowable contraceptive devices and methods. Instead, the proposal is for the allowance of contraceptive methods that are in general safe and legal. This would mean a prohibition of contraceptive methods that are abortifacient once they have been scientifically identified. This is what the government did after Postinor was identified as abortifacient.
Will these proposed changes, even if all of them become part of the law, put an end to the debate? Definitely it will not. Very much at the heart of the debate is the teaching on methods of family planning. I do not see the Catholic Church or the other churches yielding on this issue. In the light of this insoluble division, how then should the debate be conducted?
The Catholic Social Teaching on this may be found in what 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.”
Of special application to a country where Catholics are a majority is the teaching of the Compendium on the Social Teaching of the Church which says: “Because of its historical and cultural ties to a nation, a religious community might be given special recognition on the part of the State. Such recognition must in no way create discrimination within the civil or social order for other religious groups” and “Those responsible for government are required to interpret the common good of their country not only according to the guidelines of the majority but also according to the effective good of all the members of the community, including the minority.” This, too, is the teaching of Dignitatis Humanae. (No. 6)
2 May 2011
Saturday, April 23, 2011
SYNCHRONIZING THE ARRM ELECTIONS
There is a bill already approved by the House of Representatives but still pending in the Senate which aims to synchronize the ARRM elections with the national elections. Under the current law, the term of the incumbent local officials of the ARRM will end on September 30, 2011. The election of the next officials is currently set for Monday of August, 2011. If the current bill is approved, the elections will not be held on the first Monday of August, 2011 but in May 2013. Hence, there would be a vacancy in the ARRM offices from September 30, 2011 to June 30, 2013 – or a period of twenty-one months. How should these vacancies be filled?
Before answering that question, a prior question need be answered. Why synchronize the ARRM elections with the national elections? One big reason being used, I understand, is economy. But synchronization also finds support in the desire of the Transitory Provisions of the 1987 Constitution that local elections be synchronized with national elections. This desire is not explicitly stated but it can be deduced from Section 2 and 5 of the Transitory Provisions. And since the ARRM elections are local elections, it stands to reason that they should be synchronized with other local elections. Moreover, I think that there is a reason for synchronization peculiar to the ARRM. The absence of synchronization in ARRM gives undue advantage to the powerful lords of the area to control the results of local elections. Synchronization will have the effect of diffusing the energies of the local lords since they would be attending to both local and national elections. Whether these reasons are enough to convince the Senate to go along with the House bill remains to be seen.
To come back now to the matter of filling the vacancies, the House bill rejected the option of filling the twenty-one month hiatus by allowing the incumbents to hold over until their successors are elected. Apparently the rejection of the hold-over option was based on the 1991 case of Osmeña v. Comelec which had held that hold over would change the three year term set by the Constitution and therefore would be unconstitutional. I doubt, however, that the current Court would hold the same position considering that more recent decisions have made a distinction between term and tenure. The term of local officials is fixed by law at three years and may be changed only by constitutional amendment. Tenure, however, which is the actual period an official holds office, can be shorter or longer than the term.
At any rate, the rejection of the hold-over option may have been based on other reasons also. The House may have considered that a hold over of twenty-one months would be too long. Indeed, in instances where hold over has been allowed, the periods involved were usually short temporary vacancies in an office. The House may have reasoned that, if there is to be a prolonged hold-over, there must be a way of renewing the public mandate. Hence, the House opted for appointment as the vehicle for filling the vacancy by a new mandate.
The House bill proposes that the vacancies necessitated by the synchronization should be filled by appointment by the President. The only limitation imposed on the President is that the appointees should possess the legal qualifications for the office. As to the appointees themselves, they are made ineligible to run as candidates for elective positions in the next regular ARRM elections.
The affirmation of the power of the President to appoint officers to an elective position is based on necessity of public service. In the 1991 case of Menzon v. Petilla, the Court affirmed that such power can be assumed by the President. But the issue in the Menzon case was whether the temporary occupant of the office was entitled to compensation. In the end the Court concluded that he was, at least as a de facto officer. It was not a clear affirmation of a power of the President to fill temporary vacancies in elective positions by appointment without statutory authorization..
I suggest that the better model for empowering the President to fill temporary vacancies by appointment is Section 7 of the Transitory Provisions of the 1987 Constitution. Said Section 7 authorized the President to fill by appointment the seats reserved for sectoral representatives -- but only from a list of nominees prepared by various sectors. A role thus was given to the concerned sectors in filling vacancies. A similar limitation on the choice to be made by the President can be included in the synchronization law. Unless such limitation on the President’s discretion is placed, he could very well fill the offices with his party mates. Imposing such limitation will make the appointment closer to a democratic process.
25 April 2011
Before answering that question, a prior question need be answered. Why synchronize the ARRM elections with the national elections? One big reason being used, I understand, is economy. But synchronization also finds support in the desire of the Transitory Provisions of the 1987 Constitution that local elections be synchronized with national elections. This desire is not explicitly stated but it can be deduced from Section 2 and 5 of the Transitory Provisions. And since the ARRM elections are local elections, it stands to reason that they should be synchronized with other local elections. Moreover, I think that there is a reason for synchronization peculiar to the ARRM. The absence of synchronization in ARRM gives undue advantage to the powerful lords of the area to control the results of local elections. Synchronization will have the effect of diffusing the energies of the local lords since they would be attending to both local and national elections. Whether these reasons are enough to convince the Senate to go along with the House bill remains to be seen.
To come back now to the matter of filling the vacancies, the House bill rejected the option of filling the twenty-one month hiatus by allowing the incumbents to hold over until their successors are elected. Apparently the rejection of the hold-over option was based on the 1991 case of Osmeña v. Comelec which had held that hold over would change the three year term set by the Constitution and therefore would be unconstitutional. I doubt, however, that the current Court would hold the same position considering that more recent decisions have made a distinction between term and tenure. The term of local officials is fixed by law at three years and may be changed only by constitutional amendment. Tenure, however, which is the actual period an official holds office, can be shorter or longer than the term.
At any rate, the rejection of the hold-over option may have been based on other reasons also. The House may have considered that a hold over of twenty-one months would be too long. Indeed, in instances where hold over has been allowed, the periods involved were usually short temporary vacancies in an office. The House may have reasoned that, if there is to be a prolonged hold-over, there must be a way of renewing the public mandate. Hence, the House opted for appointment as the vehicle for filling the vacancy by a new mandate.
The House bill proposes that the vacancies necessitated by the synchronization should be filled by appointment by the President. The only limitation imposed on the President is that the appointees should possess the legal qualifications for the office. As to the appointees themselves, they are made ineligible to run as candidates for elective positions in the next regular ARRM elections.
The affirmation of the power of the President to appoint officers to an elective position is based on necessity of public service. In the 1991 case of Menzon v. Petilla, the Court affirmed that such power can be assumed by the President. But the issue in the Menzon case was whether the temporary occupant of the office was entitled to compensation. In the end the Court concluded that he was, at least as a de facto officer. It was not a clear affirmation of a power of the President to fill temporary vacancies in elective positions by appointment without statutory authorization..
I suggest that the better model for empowering the President to fill temporary vacancies by appointment is Section 7 of the Transitory Provisions of the 1987 Constitution. Said Section 7 authorized the President to fill by appointment the seats reserved for sectoral representatives -- but only from a list of nominees prepared by various sectors. A role thus was given to the concerned sectors in filling vacancies. A similar limitation on the choice to be made by the President can be included in the synchronization law. Unless such limitation on the President’s discretion is placed, he could very well fill the offices with his party mates. Imposing such limitation will make the appointment closer to a democratic process.
25 April 2011
Saturday, April 16, 2011
THE TRIALS OF JESUS CHRIST
When conducting a retreat for law school seniors and asking them to contemplate the trials of Jesus prior to his crucifixion, I tell them not to be distracted by what they know about criminal due process. There was no due process there. I ask them to concentrate instead on how Jesus hides his divinity and refuses to use it in his defense and on the important question of why he is undergoing his ignominious trial. But let us look at the trials themselves.
There were two trials, one before the religious leaders and the other before Pontius Pilate, the Roman Governor.
The trial before the religious leaders was by a “kangaroo court,” one in which there was already a pre-determined verdict. The judges had wanted a verdict that would serve as a basis for asking for his death. They themselves did not claim the authority to impose the death penalty. But they wanted him dead and they wanted a verdict that would convince the Roman rulers to sentence him to death. But Jesus maintained his silence.
He finally broke his silence when his judges decided to place him under solemn oath. "I order you to tell us under oath before the living God whether you are the Messiah, the Son of God." When Matthew wrote his gospel, the people had already long known that that was what he was. The trial in Matthew reaches its climax when Jesus proclaims to the world who He was. "You have said so. But I tell you: From now on you will see 'the Son of Man seated at the right hand of the Power' and 'coming on the clouds of heaven.'"
We can imagine how those same religious leaders who were his judges must have felt when finally they appeared for judgment before “the Son of man seated at the right hand of the Power.”
Meanwhile, Peter the Rock melted before those who had accused him of being a follower of Jesus. Three times he denied any connection with Jesus. But he repented and “wept bitterly.” We see in Peter the saints and the sinners that make up the community of the Church.
It is salutary to reflect on how Peter and Judas dealt with their betrayal of Jesus. Both recognized the innocence of Jesus. But on the one hand Peter repented, whereas Judas, while remorseful, despaired.
Next came the trial before Pilate where the religious leaders decided to have Jesus brought. The trial went through a number of phases. Jesus is first interrogated. Pilate asks him if he is the King of the Jews. An affirmation would be a political offense. Jesus answers in an ambiguous manner. “As you say.” What he meant was that He was, but not in the sense Pilate understood him to be claiming.
Seeing the flimsiness of the case against Jesus, Pilate looks for a way of satisfying the people’s taste for blood and escaping guilt for the death of an innocent man, especially after he receives a message from his wife not to trifle with the life of an innocent man. Thus Pilate next offers Barrabas to pacify the crowd. The crowd rejects the offer. When asked what should be done with Jesus, the crowd asks for crucifixion. When further asked what crime Jesus had committed, they mention none, but, egged on by religious leaders, only repeat their demand for crucifixion. The crowd thereby affirms his innocence.
Finally, the final phase. Pilate is convinced that Jesus is innocent. He ceremonially washes his hands as his way of disowning what would happen to Jesus. The religious leaders too had done something similar when Judas attempted to return the thirty pieces of silver. They told Judas, "What is that to us? Look to it yourself." So to, Pilate said, “See to it yourselves.” The religious leaders and Pilate both refuse to own their guilt. But “the whole people,” crowd and leaders, accept responsibility. "His blood be upon us and upon our children."
How is this cry for blood to be interpreted? It is a delicate question which has affected the attitude of generation after generation of Christians towards the Jews. Is the cry only for those who were there at the trial or also for those who would follow them? But as one commentator writes, “There is no foundation in the Matthean formulation for the lamentable extension of the phrase in the Christian tradition to encompass all subsequent generation of the Jewish people to the end of time.”
17 April 2011
There were two trials, one before the religious leaders and the other before Pontius Pilate, the Roman Governor.
The trial before the religious leaders was by a “kangaroo court,” one in which there was already a pre-determined verdict. The judges had wanted a verdict that would serve as a basis for asking for his death. They themselves did not claim the authority to impose the death penalty. But they wanted him dead and they wanted a verdict that would convince the Roman rulers to sentence him to death. But Jesus maintained his silence.
He finally broke his silence when his judges decided to place him under solemn oath. "I order you to tell us under oath before the living God whether you are the Messiah, the Son of God." When Matthew wrote his gospel, the people had already long known that that was what he was. The trial in Matthew reaches its climax when Jesus proclaims to the world who He was. "You have said so. But I tell you: From now on you will see 'the Son of Man seated at the right hand of the Power' and 'coming on the clouds of heaven.'"
We can imagine how those same religious leaders who were his judges must have felt when finally they appeared for judgment before “the Son of man seated at the right hand of the Power.”
Meanwhile, Peter the Rock melted before those who had accused him of being a follower of Jesus. Three times he denied any connection with Jesus. But he repented and “wept bitterly.” We see in Peter the saints and the sinners that make up the community of the Church.
It is salutary to reflect on how Peter and Judas dealt with their betrayal of Jesus. Both recognized the innocence of Jesus. But on the one hand Peter repented, whereas Judas, while remorseful, despaired.
Next came the trial before Pilate where the religious leaders decided to have Jesus brought. The trial went through a number of phases. Jesus is first interrogated. Pilate asks him if he is the King of the Jews. An affirmation would be a political offense. Jesus answers in an ambiguous manner. “As you say.” What he meant was that He was, but not in the sense Pilate understood him to be claiming.
Seeing the flimsiness of the case against Jesus, Pilate looks for a way of satisfying the people’s taste for blood and escaping guilt for the death of an innocent man, especially after he receives a message from his wife not to trifle with the life of an innocent man. Thus Pilate next offers Barrabas to pacify the crowd. The crowd rejects the offer. When asked what should be done with Jesus, the crowd asks for crucifixion. When further asked what crime Jesus had committed, they mention none, but, egged on by religious leaders, only repeat their demand for crucifixion. The crowd thereby affirms his innocence.
Finally, the final phase. Pilate is convinced that Jesus is innocent. He ceremonially washes his hands as his way of disowning what would happen to Jesus. The religious leaders too had done something similar when Judas attempted to return the thirty pieces of silver. They told Judas, "What is that to us? Look to it yourself." So to, Pilate said, “See to it yourselves.” The religious leaders and Pilate both refuse to own their guilt. But “the whole people,” crowd and leaders, accept responsibility. "His blood be upon us and upon our children."
How is this cry for blood to be interpreted? It is a delicate question which has affected the attitude of generation after generation of Christians towards the Jews. Is the cry only for those who were there at the trial or also for those who would follow them? But as one commentator writes, “There is no foundation in the Matthean formulation for the lamentable extension of the phrase in the Christian tradition to encompass all subsequent generation of the Jewish people to the end of time.”
17 April 2011
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