Hacienda Luisita Controversy

s, S.J.

First, a bit of abbreviated history.

President Marcos initiated land reform in earnest in 1972 through Presidential Decree No. 27 which authorized the distribution of land holdings in favor of tenants. The Marcos program covered only rice and corn lands. It had very limited success in meeting the goal of land redistribution..

During the election campaign in 1986, land reform figured prominently. Candidate Cory Aquino made a more aggressive land reform program an important aspect of her campaign. She declared that she would make land to the tiller a reality. Seen against the background of the Cojuangco control of the sprawling Hacienda Luisita, it was an eloquent statement.

In July 1987 while she still possessed legislative power, she formed a land reform commission. Congress assumed legislative power the same month and eventually passed the Comprehensive Land Reform Program in 1988. It is under this law that the Hacienda Luisita controversy is being debated. The debate is about the enforcement of the Comprehensive Land Reform Law as applied to large corporate landholdings.

The Land Reform Law does not treat all landowners in the same way. For smaller land holdings what is prescribed is outright distribution of the land to farmers and regular farm workers. For corporate land holdings, however, the option of giving to farmers shares of stock instead is made possible. This option, granted by Congress, to which the Constitution has given the responsibility of implementing the details of agrarian reform, grew out of the constitutional policy on land reform. The constitutional policy allows some flexibility. It says: “To this end the State shall encourage and undertake the just distribution of agricultural lands, and subject to the payment of just compensation just distribution of all agricultural lands subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental or equity considerations, and subject to the payment of just compensation.”

Under this policy allowing Congress to set “priorities and retention limits . . . taking into account ecological, developmental or equity considerations,” the Comprehensive Land Reform Law sets down differing distribution schemes for smaller land holdings and for corporate land holdings. Smaller landowners are required in general to distribute all and retain only seven hectares whereas corporate land holdings are given other options.

One option is the “stock distribution option” availed of by Hacienda Luisita and initially approved by the Department of Agrarian Reform. The pertinent stock option provision says: “Upon certification by the DAR, corporations owning agricultural lands may give their qualified beneficiaries the right to purchase such proportion of the capital stock of the corporation that the agricultural land, actually devoted to agricultural activities, bears in relation to the company's total assets, under such terms and conditions as may be agreed upon by them. In no case shall the compensation received by the workers at the time the shares of stocks are distributed be reduced. The same principle shall be applied to associations, with respect to their equity or participation.”

The law further says that if the stock distribution option is chosen and the conditions for their validity are fulfilled, corporations or associations which choose this option “shall be deemed to have complied with the provisions of this Act.” This means that the corporations or associations can then retain their landholdings.

Hacienda Luisita chose this option. It offered to farmers thirty percent of its stocks, retained seventy percent and as a result retained its land holdings. And since Hancienda Luisita retained seventy percent of its stocks, it also retained control of the corporation. This was approved by the Department of Agrarian Reform in 1989.

I am in no position to discuss what happened between 1989 and 2005. All I know is that in 2005 DAR changed its mind and revoked the scheme approved for Luisita. (I have not seen the revocation order.) DAR denied reconsideration; Luisita went to the Supreme Court; the Supreme Court temporarily restrained the implementation of the DAR order. For the past five years this has been the situation and this is now before the Supreme Court for resolution.

What can the Supreme Court examine? We are beginning to see the issues unfold as the oral arguments before the Court continues. Certainly, for instance, the Supreme Court can examine whether the scheme entered into by Hacienda Luisita satisfies the conditions imposed by law. What are some of these conditions non-fulfillment of which can be ground for cancellation of the scheme? The law requires transparency of the books of the corporation, representation of the farmers in the board of the corporation, and equality of the features of the farmers’ shares with those of all other shares.

A more difficult problem is also whether the Court can reject the discretion exercised by Congress in allowing the stock transfer option. The problem has been made more complicated by the recent compromise entered into between the farmers and Luisita. We will be waiting for the Court’s decision.

23 August 2010

The Truth Commission

In my column last week I concluded with what in effect were two questions: (1) Does the creation of the Truth Commission have a legal foundation? (2) Does anybody now have standing to challenge its validity?

First, on the issue of standing. Standing, of course, is an issue which the Supreme Court approaches with a certain degree of flexibility. On that understanding I would probably say that a legislator like Congressman Lagman would have standing to challenge an act that might encroach into the power of Congress.

A more crucial question, however, is whether indeed the creation of the Commission is an encroachment on the power of the legislature. It would be if its creation has no legal basis at all. An executive order, after all, as the Administrative Code defines it, is an implementation of a constitutional or a statutory provision.

Executive Order No. 1 (which I would prefer to call an administrative order) relies on the power of the President to reorganize the Office of the President. This power is recognized in Book III, Chapter 10, Section 31 of the 1987 Revised Administrative Code of the Philippines. This is cited in Executive Order No 1. Is this enough to empower the President to create a commission?

Reorganization, according to jurisprudence, can involve the reduction of personnel, consolidation of offices, or even abolition of positions by reason of economy or redundancy of functions. All of these, however, presuppose the existence of something to reorganize. But E. O. No. 1 admits that there is as yet nothing to reorganize. Hence, what it does is create.

E.O. No. 1 clearly involves the creation of a new position. It says “There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the ‘COMMISSION’, which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.”

It is an ambitious creation which is also described as “independent” even if it is not clear from whom or from what it would be independent. Certainly, not from the President, because the President constitutionally has control over all executive offices.

I and some of my colleagues, because one of our colleagues is in danger of being appointed to the truth Commission, have been trying to look for ways of laying a legal foundation for the executive order. The closest we could find were provisions found in the Administrative Code regarding the elements that constitute the Office of the President Proper. Book III, Title II, Chapter 8, Section 22 of the Code says “The President Special Assistants/Advisers System includes such special assistants or advisers as may be needed by the President.” And Book III, Title III, Chapter 9, Section 29 says “Functions of Presidential Assistants/Advisers Systems. - The Special Assistants/Advisers System shall provide advisory or consultative services to the President in such fields and under such conditions as the President may determine.”

Is that all that the Truth Commission is – a body of “Special Assistants and Advisers” strung together as a toothless tiger? I remember a line from the Latin poet Horace which said ”Montes laborant et nascitur ridiculus mus.” (The mountains heaved in labor and gave birth to a tiny mouse)! But the Truth commission, far from being a ridiculous mouse, is supposed to be the centerpiece of the Aquino administration’s fight against corruption!

Indeed, if one looks at the powers it is supposed to exercise, they are powers which a mere tiny mouse cannot do. Mighty Mouse, perhaps, but not a ridiculus mus. If the Truth Commission is expected to perform a herculean task, the mouse, if I may mix meats, must be beefed up!

Of course, the Truth Commission, according to E.O. No. 1, may “Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and cooperation as it may require in the discharge of its functions and duties.” I suspect, in fact, that the staffing will be drawn from already existing investigative bodies. They will be the “beef” in the mix. (Recall, e.g., that the Melo Commission included as members the Chief Prosecutor and the Head of NBI.) In fact, too, these bodies could have been made the investigative body through “reorganization.” Unfortunately, mere reorganization of the Department of Justice or of the Presidential Anti-Graft Commission would not have made the eloquent and ambitious statement the Truth Commission is trying to make against the past administration. Rhetoric can have its value if it does not backfire.

16 August 2010

A History of Commissions; A Note on PAL

First there was the Davide Commission charged with the responsibility of looking into the failed coups of 1989. It was created by President Aquino. Sensing perhaps that there was some legal defect in the creation, Congress passed R.A. 6832 re-creating the Commission.

Next was the Narvasa Commission created by President Estrada to study and recommend possible changes in the Constitution. It was challenged in Court but the challenge came too late – after the Commission had made its report. Moreover, the Court ruled that the challenger had no standing to raise the issue of validity as a taxpayer. Commission saved!

There followed the Feliciano Commission to look into the truth behind the Oakwood mutiny. It was headed by former Justice Feliciano and I was one of the members.

The Melo Commission came next to investigate extrajudicial killings. It was headed by former Jutice Jose Melo and assisted by top NBI officials.

Both the Feliciano Commission and the Melo Commission were created by President Gloria Macapagal Arroyo. To my recollection, nobody with appropriate standing challenged the validity of the creation of these commissions.

Now we have the second Davide Commission but I see no Republic Act coming up to bolster it. Meanwhile it is being challenged by allies of former President Gloria Macapagal Arroyo who had created two unchallenged commissions.

One question being asked is whether under separation of powers the President can create offices. It is best that the matter be brought to the Supreme Court in a manner that will not be dismissed on the technicality of lack of “standing.” At the moment I cannot yet identify anyone who would have standing to challenge it.

• • • • •

Takeover PAL Operations?

In the face of the walkout of two dozen pilots from PAL, government started thinking what it could do. A Senator expressed that takeover of PAL operations was possible under the Constitution. Takeover was also mentioned by the Secretary of Justice as a possible last resort but the Malacañang Spokesperson was quick to say that they were not thinking takeover thoughts. Now both Malacañang and DOJ seem to have decided to keep their hands off PAL. But let us talk about takeover in the Constitution.

There are two ways in which the state can take over the operation of a public utility. The more radical mode is found in Article XII, Section 18 which says: “The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.” Eminent domain, in other words.

One key obstacle to resort to this mode of takeover is the requirement of “payment of just compensation.” The state becomes the owner of the public utility but only after payment of just compensation. Recent jurisprudence has emphasized that compensation is just when it is given promptly. This should present a big problem to a cash-strapped government especially if its agencies will also have to help farmers compensate Hacienda Luisita for the sugar lands. Moreover, it was not too long ago that the government decided to rid itself of PAL problems by privatizing it. Expropriation must be farthest from the mind of government now.

A milder mode of takeover is the assumption of responsibility for the operation of the public utility but without assuming ownership. This is the police power mode authorized in Article XII, Section 17: “In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.”

Last 2006 the Supreme Court said a mouthful about this power when President Gloria Macapagal Arroyo, confronted by what she saw as a tactical alliance among the political opposition, the authoritarians of the extreme Left represented by the NDF-CPP-NPA, and the extreme Right, represented by military adventurists, declared a state of emergency and threatened to takeover the operation of certain public utilities. To her credit, she never did.

Probably it was because of the long sermon delivered by the Supreme Court explaining the meaning of Article XII, Section 17.

In brief, the Court said: “Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the ‘the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,’ it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof.”

The “emergency powers clause” the Court is referring to is the clause which authorizes Congress to grant emergency powers to the President “in times of war or other national emergency.” What is probably obvious is that Congress does not now see the PAL controversy as a problem approximating the severity of war or similar national emergency serious enough to justify the grant of emergency powers to the President.

9 August 2010

Reactions to my Land Reform Oiece

In my column of three weeks ago I concluded with a paragraph which I thought was a motherhood statement. I wrote then: “But one indispensable requirement of land reform is that the owner must be given just compensation. A recent decision of the Supreme Court emphasized that the concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking.” I did not realize then that the paragraph would provoke a hornet’s nest.

Shortly after that my office received calls asking for an appointment to discuss the article. I finally received a delegation last Thursday. The conversation was all about failed just compensation. And since land reform is not an area of justice which I have followed closely, the session was an education for me. Let me just try to summarize some of what I was made to hear.

First of all, I was reminded that the Court teaching on promptness of payment as part of just compensation was not anything new. In all logic, it really should not be. The reasoning behind this was recently repeated by the Court: “It has been repeatedly stressed by this Court that the true measure is not the taker’s gain but the owner’s loss. The word ‘just’ is used to modify the meaning of the word ‘compensation’ to convey the idea that the equivalent to be given for the property to be taken shall be real, substantial, full, and ample.

The concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking. Without prompt payment, compensation cannot be considered ‘just’ inasmuch as the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. Put differently, while prompt payment of just compensation requires the immediate deposit and release to the landowner of the provisional compensation as determined by the DAR, it does not end there. Verily, it also encompasses the payment in full of the just compensation to the landholders as finally determined by the courts. Thus, it cannot be said that there is already prompt payment of just compensation when there is only a partial payment thereof, as in this case.”

What stories did I hear? One is probably a generic story true of many families.

“It has been 38 years since the program was implemented, and many original landowners are now DEAD, their children have likewise died. Unfortunately, many of the original landowners died without receiving the just compensation for their land, which all Philippine Constitutions promised them.

“Worse, before heirs can claim the promised compensation, they must pay all the estate taxes (plus penalties) because the original landowner, their children and grandchildren have died. Today, many third or forth generation landowners are still locked in litigation with DAR and the Land Bank over the issue of just compensation.”

Another tells a more personal story, of uncollected compensation, of a history of borrowing in order to maintain life, of home and family heirlooms disposed of to meet expenses, of a comfortable home sold, of struggles with DAR and the Land Bank ending with a small amount enough to be able to build a simple home out of the city while struggling with diabetes. It is a sad story.

I suppose that if these were to be within the priorities of the proposed Truth Commission other stories would be unearthed not just about the Arroyo years but even going back farther. But then I still have to see what the Truth Commission is all about.

All these bring me back to the Hacienda Luisita case about which I tentatively wrote three weeks ago. I anticipate that it will end as a victory for the farmer claimants. They will get the land they want. Then Hacienda Luisita and the Noynoy Aquino administration will be confronted with the problems of landowners seeking compensation for the lands they have lost. This may not be a bad thing after all. The Supreme Court has repeatedly said that social justice as a right of those who have less in life is not an instrument against those who have more.

• • • • •

This really has to nothing to do with the Hacienda Luisita case or with land reform in general. It is more of about the qualification of Mikey Arroyo. Already a case has been filed for his disqualification with the Supreme Court. But recently a case was also filed, or will be filed, with the House Electoral Tribunal. Who should the decide the case?

I have always taught my students that the jurisdiction of the Electoral Tribunal is over “contests” and that there is a contest when a losing candidate challenges the proclamation of a winning candidate and asks that he or she be declared the winner instead. No losing candidate is challenging Mikey Arroyo. I anticipate therefore that the Electoral Tribunal will throw out the case file against Arroyo.

Incidentally I am also watching how the Comelec will handle 1-Utak’s move to erase Angelo Reyes from the list of nominees. The Party-list Law says that the list submitted to the Comelec can be altered only when a nominee dies or when a nominee withdraws from the list in writing. I think Angelo Reyes is very much alive and I do not see him withdrawing his nomination in writing!

2 August 2010

Reactions to My Land Reform Piece

In my column of three weeks ago I concluded with a paragraph which I thought was a motherhood statement. I wrote then: “But one indispensable requirement of land reform is that the owner must be given just compensation. A recent decision of the Supreme Court emphasized that the concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking.” I did not realize then that the paragraph would provoke a hornet’s nest.

Shortly after that my office received calls asking for an appointment to discuss the article. I finally received a delegation last Thursday. The conversation was all about failed just compensation. And since land reform is not an area of justice which I have followed closely, the session was an education for me. Let me just try to summarize some of what I was made to hear.

First of all, I was reminded that the Court teaching on promptness of payment as part of just compensation was not anything new. In all logic, it really should not be. The reasoning behind this was recently repeated by the Court: “It has been repeatedly stressed by this Court that the true measure is not the taker’s gain but the owner’s loss. The word ‘just’ is used to modify the meaning of the word ‘compensation’ to convey the idea that the equivalent to be given for the property to be taken shall be real, substantial, full, and ample.

The concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking. Without prompt payment, compensation cannot be considered ‘just’ inasmuch as the property owner is made to suffer the consequences of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. Put differently, while prompt payment of just compensation requires the immediate deposit and release to the landowner of the provisional compensation as determined by the DAR, it does not end there. Verily, it also encompasses the payment in full of the just compensation to the landholders as finally determined by the courts. Thus, it cannot be said that there is already prompt payment of just compensation when there is only a partial payment thereof, as in this case.”

What stories did I hear? One is probably a generic story true of many families.

“It has been 38 years since the program was implemented, and many original landowners are now DEAD, their children have likewise died. Unfortunately, many of the original landowners died without receiving the just compensation for their land, which all Philippine Constitutions promised them.

“Worse, before heirs can claim the promised compensation, they must pay all the estate taxes (plus penalties) because the original landowner, their children and grandchildren have died. Today, many third or forth generation landowners are still locked in litigation with DAR and the Land Bank over the issue of just compensation.”

Another tells a more personal story, of uncollected compensation, of a history of borrowing in order to maintain life, of home and family heirlooms disposed of to meet expenses, of a comfortable home sold, of struggles with DAR and the Land Bank ending with a small amount enough to be able to build a simple home out of the city while struggling with diabetes. It is a sad story.

I suppose that if these were to be within the priorities of the proposed Truth Commission other stories would be unearthed not just about the Arroyo years but even going back farther. But then I still have to see what the Truth Commission is all about.

All these bring me back to the Hacienda Luisita case about which I tentatively wrote three weeks ago. I anticipate that it will end as a victory for the farmer claimants. They will get the land they want. Then Hacienda Luisita and the Noynoy Aquino administration will be confronted with the problems of landowners seeking compensation for the lands they have lost. This may not be a bad thing after all. The Supreme Court has repeatedly said that social justice as a right of those who have less in life is not an instrument against those who have more.

• • • • •

This really has to nothing to do with the Hacienda Luisita case or with land reform in general. It is more of about the qualification of Mikey Arroyo. Already a case has been filed for his disqualification with the Supreme Court. But recently a case was also filed, or will be filed, with the House Electoral Tribunal. Who should the decide the case?

I have always taught my students that the jurisdiction of the Electoral Tribunal is over “contests” and that there is a contest when a losing candidate challenges the proclamation of a winning candidate and asks that he or she be declared the winner instead. No losing candidate is challenging Mikey Arroyo. I anticipate therefore that the Electoral Tribunal will throw out the case file against Arroyo.

Incidentally I am also watching how the Comelec will handle 1-Utak’s move to erase Angelo Reyes from the list of nominees. The Party-list Law says that the list submitted to the Comelec can be altered only when a nominee dies or when a nominee withdraws from the list in writing. I think Angelo Reyes is very much alive and I do not see him withdrawing his nomination in writing!

2 August 2010

Mikey as Party-list Rep?

The divided decision of the Comelec on whether Mikey Arroyo qualifies as a party-list representative is indication that some Commissioners have chosen to ignore the law on the subject. The Supreme Court will have to send them back to school.

The Supreme Court already dealt with this in the 2001 case of Ang Bagong Bayani. Although that decision was primarily about the qualities of the party-list organization and not directly about party-list representatives, the Court nevertheless manifested its thinking about the representatives themselves.

We must begin with the basic constitutional text on party-list. It says: “For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”

Note that the text says that the party-list representatives shall be chosen “by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.” But the Court also noted that the provision was not self-executory considering that the law was interspersed with phrases like ‘in accordance with law’ or ‘as may be provided by law’ and that therefore “it was thus up to Congress to sculpt in granite the lofty objective of the Constitution.”

How did Congress sculpt the image of the party-list representative? Prefatorily R.A. 7941, the Party-List Law, said that the system should “enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.” From this one may easily deduce that Filipino citizens who are and have been prominent members of well established political parties would be excluded.

For this reason the 2001 decision already concluded that party-list representatives must be Filipino citizens “1. who belong to marginalized and underrepresented sectors, organizations and parties; and 2. who lack well-defined constituencies; but 3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.” The Court emphasized the key words “marginalized and underrepresented,” and “lack [of] well-defined constituencies.”

When Congress finally enumerated the qualifications of a party-list representative it said in Section 9 of R.A. 7941: “No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.”

But what does being a bona fide member of a party-list organization mean? The meaning cannot be a departure from the constitutional provision which says that he must be elected “from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.” Or, as the Supreme Court said in 2001, he must be chosen from among those “1. who belong to marginalized and underrepresented sectors, organizations and parties; and 2. who lack well-defined constituencies; but 3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”

Last year the Supreme Court reiterated this in Banat v. Comelec when it said that “it is not necessary that the party-list organization’s nominee ‘wallow in poverty, destitution and infirmity’ as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors, that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen.”

It is sometimes argued that it would be illogical to exclude members of elite groups because those who belong to the marginalized sectors might not have the capacity to “contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.” Such argument adds insult to injury.

Finally, to quote the 2001 Court decision once more: “In the end, the role of the Comelec is to see to it that only those Filipinos who are ‘marginalized and underrepresented’ become members of Congress under the party-list system, Filipino-style.” How could some Comelec Commissioners miss this if not deliberately? And what should an enlightened Comelec do with a party-list organization which by its choice of nominees seeks to prostitute the system?

26 July 2010

Parenets abd Sex Education

It is quite obvious that parents themselves are divided about sex education for their minor children in school. I think that there should be a search for a compromise somewhere. Since what is involved is a conflict of rights and obligations, a look at the principles involved should be helpful.

Educational institutions themselves, whether private or public, have the constitutional duty to “strengthen ethical and spiritual values, develop moral character and personal discipline.” The manner of carrying out this duty, however, is not specified. There is room for the creative formulation by the state of plans and programs that can be acceptable to all.

However, the duty and responsibility to “strengthen ethical and spiritual values, develop moral character and personal discipline” belongs primarily to parents. As the fundamental law puts it, “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.” What is clear from this is that the primary right and duty belongs to parents and the role of government is subsidiary. Hence, some rational way of cooperation must be found whereby government can satisfy the views of disagreeing parents.

Indeed, modern society recognizes the indispensable role which the modern state has to play in the field of education. Parents need the help of the state in the proper formation of children for civic and social life. This role of the state is performed either through state established schools or through state regulation of private institutions of learning. This subject is now treated by the Constitution more fully than it ever was in earlier constitutions. Moreover, the role of parents has been strengthened but the role of government is specified as in support of the natural right and duty of parents. The law has added the adjective "primary" to modify the right of parents in order to emphasize that the right of parents is superior to that of the state.

The root of all this, of course, is the basic philosophy of liberty guaranteed by the due process clause. There is ample jurisprudence on this as applied to education.. For instance, a statute prohibiting the teaching of German to students up to a certain age was declared invalid. The US Supreme Court said: “For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: ‘That the wives of our guardians are to be common, and their children are to be common, and no parents is to know his own child nor any child his parent . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or the better when they chance to be deformed will be put away in some mysterious, unknown place, as they should be.’ In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and entrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.”

Another decision invalidated a law requiring children up to a certain age to go to public schools only. The Court said: “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

This is not to say, however, that the only things parents have are rights. They also have obligations. And the state, as parens patriae, has the duty to insure that parents perform their civic duty to prepare their children for life in society and to protect their health. Thus, in a case where a law required parents to send their children to school up to a certain age, the parents were excused when it was seen that the families themselves were adequately preparing their children for civic life.

This brings me back to what I said about the need to look for a formula that can satisfy the rights of parents and the duty of the state in the rearing of the youth for civic life. I believe that a formula, with necessary modifications, may be found in what is said about religious instruction in public schools. The Constitution says: “At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.” For many parents sexual morality is all part of religious upbringing. Sex is such an important subject that something similar to what is done for religious instruction might be worked out for sex education.

19 July 2010