Chief Justice Renato Corona

I have always held that the Constitution means what the Supreme Court says it means, until the Supreme Court changes its mind. And, yes, the Supreme Court does, once in a while, change its mind. But the responsibility for interpreting the meaning of the Constitution at any given time belongs to the Supreme Court.

The Supreme Court has decided with finality that the President may appoint a Chief Justice even during the two month period immediately preceding a presidential election. I and many others in the legal profession have disagreed and still disagree with the correctness of the decision. But our disagreeing does not change the fact that for now it is the most recent decision of the Supreme Court that is the law on the subject.

The current decision is a reversal of a 1998 decision which upheld the challenge made by President Diosdado Macapagal to incumbent President Garcia’s appointments made during the prohibited period. The current decision upholding the daughter’s desire to do what the father opposed will stay unless perhaps six years from now a Supreme Court with a different composition should revert to what the Macapagal pater believed.

A decision six years from now, however, or even a constitutional amendment, will not help those who oppose the legitimacy of Corona’s appointment. The present Constitution authorizes the President to make appointments to the Supreme Court from a list submitted by the Judicial and Bar Council (JBC). The JBC duly submitted a list and from that list President Arroyo chose to crown Corona. The process is legally unassailable even if, in the view of many, morally questionable.

True it is that the validity of appointments also depends upon the existence of a vacancy. But the nomination to a vacancy that is certain to occur may be done and can ripen into a valid appointment provided that when the vacancy occurs the official who made the nomination still has the authority to appoint. A vacancy was certain to occur last May 17. When May 17 arrived President Arroyo still had the power. It is as simple as that.

I can understand why Senator Noynoy Aquino is not rejoicing about Corona’s appointment. But I am sure that he is wise enough to realize that he cannot have everything he desires. There is just constitutionally no way that Corona can be ousted from his post now.

True it is that President Diosdado Macapagal moved to reverse “midnight” appointments made by outgoing President Carlos Garcia. But that was in 1998 when we had a different set of justices in the Supreme Court. I simply cannot see the present Supreme Court upholding any attempt to reverse outgoing Arroyo’s appointment of Corona.

Aquino is being tempted by some to move to oust Corona. Listening to such temptation will not help his presidency at all. It will not help the nation. Nor will it have a leg to stand on.

I am not unaware of the dissatisfaction of many with the direction taken by the current Supreme Court in the recent past involving, for instance, executive privilege, “midnight” appointments, and the creation of a playground in Bicol for young Dato Arroyo. It is a direction which makes the independence of the Supreme Court suspect. But I also must accept the fact that, like the Church, the Supreme Court is a human institution that is not perfect. Of the Church it is said that it is an institution semper reformanda, always in need of reform. That the Court and the judiciary in general have room for reform is a human given. Chief Justice Reynato Puno was keenly aware of this fact and had initiated moves in the direction of reform.

I am also certain that the new Chief Justice as well as the other members of the Supreme Court are not blind to this human given. And I doubt that they would claim that the choices made of them by their benefactress were the best she could have done for the nation. In defense of Arroyo’s choice, Chief Justice Corona has been quoted as saying that he is his own man. Certainly the other justices could also make the claim that they are their own women and men. Let us leave it at that and wait for the flowers to bloom.

Our elders spoke of the pre-martial law years as the golden age of the judiciary. If we only have bronze or silver now, or even aluminum, it may yet evolve into a golden crown.

Let me close with another aspect of our tainted humanity. It is known that Senator Aquino toyed with the idea of taking his oath before a barangay captain. It could have been a gesture of thanksgiving to the masses who elected him to office. As it turns out, however, it might not be just a barong Tagalog which a barangay captain lacks but also legal authority. But contrary to what the Malacañang “constitutionalist” Saludo claims, the Constitution does not obligate Aquino to take his oath before Corona. Nevertheless, taking the oath before the Chief Justice would be an assurance, addressed to an anxious public, that he does not intend to be a rogue President and that he recognizes the Court as a co-equal body, warts and all. If he has any qualms about it, he might assuage his feelings by remembering what someone greater than he said about the Pharisees: Listen to what they say but do not do what they do.

24 May 2010

Mental Incapacity of an Incumbent President

As election day approached (and I am assuming that when this piece comes out elections will be going on), one issue which became a matter of public discussion was whether presidential candidates should submit themselves to psychiatric test. Nothing came of it but, just the same, let me say something about it.

I realize that there are civic minded citizens who want presidential candidates to submit to a psychiatric test. The first thing I would say is that in a democracy it is the electorate who decide whether a candidate is fit for the office he or she is aspiring for. It is for that reason that the Constitution itself is very economical in its enumeration of what the qualifications should be. In the case of the President, all that is required is that he or she be a natural born Filipino citizen, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding the election.

Where does mental capacity come in? A candidate for president must be a validly registered voter, and, according to the law an “insane or incompetent person declared as such by competent authority” may not be registered. But the incompetence of a person must be challenged and proved in an exclusion proceeding as provided by law. In the case of the current presidential candidates, none of them was ever properly challenged. The only extant and scattered challenges (and correctly ignored) have been bogus documents of highly suspicious provenance.

One might ask whether a law may be passed requiring candidates to undergo psychiatric test. Enough to say that the law requiring drug testing for candidates was declared to be unconstitutional as invasive of the constitutional right to privacy. Moreover, in the case of national candidates, their qualifications enumerated in the Constitution may not be added to by Congress. A law requiring psychiatric test would suffer the same fate.

However, it is not as if the Constitution were unmindful of the possibility that the electorate, while initially correct, might be proven to be wrong. A President might turn out to be unfit for the office and for reasons that cannot be the subject of impeachment. (Impeachment is limited to culpable violation of the Constitution, treatson, bribery, graft and corruption, other high crimes, or betrayal of public trust.) A President, for instance, might in the course of his term manifest signs of mental imbalance affecting his capacity to govern. It is not generally known that the Constitution has provision for such or similar situations.

The Constitution deals with the thorny issue of deciding whether the President is still able to perform his functions or not. If the President is able to make the decision and is willing to declare himself disabled, he certainly has the power to declare so. This power was recognized in the agreement of March 1958 between President Eisenhower and Vice-President Nixon which stated that "In the event of inability the President would -- if possible -- so inform the Vice President" who would then exercise "the powers and duties until the inability had ended." But if the President himself is unable to make the decision or, though able, is unwilling to admit his incapacity, can somebody else decide for him? There was no clear answer to this question in previous Constitutions. Section 11 of Article VII attempts to supply the answer with a rather elaborate provision.

“Sec. 11.. 11.;. 11.;. 11.;. 11.;. 11.;. 11.; Whenever the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.

“Whenever a majority of all the members of the cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

“Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its Rules and without need of call.

“If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office.”

Let us just hope that there will be no occasion for using this provision either legitimately or illegitimately.

10 May 2010

Failure of Election?

A question I frequently hear these days is: What happens if there is failure of election? Worse yet, I also hear described various scenarios that can happen should there be failure of election.

Although I myself do not count the probability of a failure of national elections, it can be useful to try to understand what failure of election can mean.

The Omnibus Election Code, as a matter of fact, provides for various levels of situations of failure of election. The causes, according to the Code, can be “force majeure, violence, terrorism, fraud, or other analogous causes.” And the effect of these causes can be any one of various situations: (1) the election in any polling place has not been held on the date fixed, or (2) had been suspended before the hour fixed by law for the closing of the voting, or (3) after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect. And in any of such cases the failure or suspension of election would affect the result of the election.

In these circumstances the Comelec is authorized by law to declare a failure of election if two conditions concur: (1) that no voting has taken place on the date fixed by law or even if there was, the election results in a failure to elect, and (2) the votes not cast would affect the result of the election.

But the power to declare a failure of election is so important that the Court prescribes the care with which the Comelec should exercise it. “The power to declare a failure of elections should be exercised with utmost care and only under circumstances which demonstrate beyond doubt that the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever; or that the great body of voters have been prevented by violence, intimidation and threats from exercising their franchise. There is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as possible be respected.”

The Supreme Court cases involving failure of election, however, have dealt only with failure in local elections. For that matter, the language of the Omnibus Election Code can be read as referring only to localized failure. In these nervous times, however, when people speak of failure of election, what they are talking about is failure of national elections, and, specifically, of failure to have a proclaimed President by noon of next June 30. Talk about such situation is partly due to doubts about the novelty of the coming automated elections and partly due to distrust of the current administration. How does the law deal with such situation?

There is, of course, an order of succession in the Constitution for a situation when there is a vacancy at the beginning of the term of a President. The following are the rules to be followed at noon on June 30:

(1) If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified.

(2) If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice President-elect shall become President.

(3) Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified.

(4) The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph.

The first thing that should be noted about these rules is that the outgoing President has no right to hold-over beyond noon of June 30. She must step down.

Second, Congress has not yet provided for a situation when none of those who are mentioned – Vice-President, Senate President, House Speaker – is in a position to fill the vacuum temporarily. Remember that Congress will not be in session on June 30.

Third, -- and this is a saving factor – there can be a Senate President after June 30. The current Senate President will finish his term on June 30. But a new Senate President can be elected before June 30 from among the twelve whose term will not end on June 30. (Why before June 30? Because after June 30 there will be no quorum in the Senate.) The Senators know that this is a very serious responsibility. The new Senate President can continue as such into the next term and act as President until the vacancy in the presidency is resolved.

But how long will it take for the vacancy to be resolved? The length or brevity of the waiting period will depend on the cause of the vacancy. In fact, whether the vacancy is terminable through constitutional procedure will also depend on what is causing it. The possible causes can be the same as those for local failure of election: “force majeure, violence, terrorism, fraud, or other analogous causes.” Let us just pray that no situation will arise which can usher in a military junta or even another People Power.

3 May 2010

Election Time Legalities

Forget about the President’s power to appoint a Chief Justice or even about gerrymandering in Camarines Sur and elsewhere; but do not lose heart. Just remember what one writer said about the Supreme Court: “Because the key phrases of the Constitution have such grand ambiguities, the Court has wide discretion in passing on matters with a constitutional dimension, and because such matters are likely to concern and affect the larger issues of life, the Court, in passing on them, exercises great political power. . . The special burden of the Court, then, is to exercise great political powers while still acting like a court, or if we prefer, to exercise judicial powers over a wide domain while remaining, realistic, and alert as to the political significance of what it is doing.”

Sometimes, too, even when the language does not contain “grand ambiguities,” ambiguities can be unearthed and exploited to suit a political objective. But again do not lose heart. Just as the 1961 and 1998 decisions on “midnight appointments” yielded to grander scrutiny by a different Court, so also the conclusions of 2010 can be reversed by a different Court or by a constituent assembly. Learn a lesson from the 1987 Constitution: some of its new provisions on executive power are reversals of doctrines formulated by the Marcos Supreme Court.

For now, let us look at other issues. Front page material these days is Secretary Alberto Agra’s decision to absolve two Ampatuans. Since I do not deal with the niceties of criminal procedure morning, noon and night, I leave judgment on the issue to others better informed than I am. But one thing I am sure of: the decision to absolve the Ampatuans is not just Agra’s. The Supreme Court itself has said so and I quote: “the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive."

Jurisprudence has baptized this with the name “doctrine of qualified political agency.” It is a recognition of the fact that the Constitution has established “a single and not a plural executive.” Thus, spokespersons of Malacañang cannot hide behind presidential silence whenever executive underlings are pilloried for their decisions.

Another issue that might be revived is the debate on the effects of the Absentee voting Law, R.A. 9189, and the Dual Citizen Law, R.A. 9225, on political rights. What revived my interest in this is the reported attempt to disqualify the daughter of Mr. Lucio Tan from running for a seat in Congress. While the lawyers on both sides are wrangling about this, let me instead go back to an earlier decision of the Supreme court on dual citizenship and the right of suffrage.

To start with, being domiciled in the Philippines is a question of fact that is a constitutional requisite for being allowed to vote in Philippine elections and also for being voted for as a public official. It is also Supreme Court doctrine that when one loses Philippine citizenship by being naturalized as an American citizen such person also loses his or her domicile of origin in the Philippines.

On the occasion of the 2004 elections the issue arose whether former Filipinos who had lost their Philippine citizenship (and therefore their Philippine domicile) but had reacquired their Philippine citizenship under R.A. 9229 were qualified to vote as absentee voters under R.A. 9189 without having to reestablish their lost Philippine domicile. The Supreme Court said they could (but the decision came after the 2004 elections).

There still lingers some debate about the exact basis of the decision. It is clear that residency is a requirement for eligibility to vote. But then the Supreme Court pointed out that the Constitution authorized Congress “to devise a system wherein an absentee may vote, implying that a non‑resident may, as an exception to the residency prescription, be allowed to vote.” The Court further added: “As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring ‘duals’ to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that ‘duals’ are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote.”

The long and the short of it is that the Court seems to have considered R.A. 9189 an amendment of the Constitution and “duals” benefit from it. “Duals” are luckier than the lamented Pirma and Sigaw ng Bayan!

26 April 2010

Gerrymandering Perpetuated

We will be having a new Congress soon, even if the likelihood of a new Supreme Court is nil. It is perhaps not too early to think aloud about what to do with representative districts. One question needing an answer is: What is the correct way of implementing the constitutional command that “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.”?

We might recall the 1961 case of Macias et al v. Comelec and compare it with the arithmetic of Aquino v. Comelec, the decision which allowed R.A. 9176 to create a representative district each for Dato Arroyo and Rolly Andaya.. The Macias case arose from R.A. 3040 which attempted a nationwide reapportionment. But R.A. 3040 was declared unconstitutional and void for having violated the constitutional command that the districts "shall be apportioned among the several provinces as nearly as may be according to the member of their respective inhabitants.".

What was wrong with R.A. 3040? The Court said that R.A. 3040 violated the Constitution “because (a) it gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) it gave Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,691) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has 3 whereas Isabela, Laguna and Cagayan with more inhabitants have 2 each. And then, Capiz, La Union and Ilocos Norte got 2 each, whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only, whereas Iloilo with less inhabitants (966,145) was given 5.”

The intention of R.A. 3040 was to implement the constitutional command that “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.” It was the first attempt since 1935 to readjust the sizes of representative districts which by then had become grossly disproportionate through the growth and movement of populations. The intention was good but, quite apparently, competing political interests managed to create an unsatisfactory allotment of districts. Too bad for them, they were not as lucky as the authors of R.A. 9176.

R.A. 3040 was probably a more equitable distribution of districts than what the situation had become then since 1935. In fact the Court said, “It is argued in the motion to reconsider, that since Republic Act 3040 improves existing conditions, this Court could perhaps, in the exercise of judicial statesmanship, consider the question involved as purely political and therefore non-justiciable. The overwhelming weight of authority is that district apportionment laws are subject to review by the courts.”

R.A. 9176 was by no means an attempt at nationwide reapportionment. And it completely ignored the equality principle enunciated in Macias. Either the Court was not aware of Macias (which is unlikely) or, if aware, chose to adhere to a different notion of equality. Either that, or the ponente was distracted by the preoccupation with the 250,000 population minimum for cities, a provision not found in earlier constitutions.. Thus the ponencia failed to appreciate the fact that through R.A. 9176 a majority of the citizens Camarines Sur, to borrow the 1961 Court language, were being “deprived of as full and effective an elective franchise as they are entitled to under the Constitution.” As the Court then affirmed, “each citizen has the right to have the State apportioned in accordance with the Constitution and to be governed by a Legislative fairly representing the whole body of electorate and elected as required by the Constitution.” It added: “Needless to say, equality of representation in the Legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the Government. Cases are numerous wherein courts intervened upon proof of violation of the constitutional principle of equality of representation.”

R.A. 9176 is not an attempt to implement the Constitutional command that the distribution of districts should be reviewed periodically. It is not even an attempt to balance the numbers among the different districts within Camarines Sur. It is a simple case of doing political allies a favor. But, alas, the Arroyo Court blessed it.

Finally, from the Macias case and the De Castro case, one clear conclusion that can be drawn is that reapportionment done on a piecemeal basis will not achieve the equality of representation desired by the Constitution. Only an honest nationwide reapportionment can achieve equality of representation. If anything, piecemeal reapportionment will only serve to worsen existing inequality. It serves to perpetuate the gerrymandering sin. Will the Supreme Court continue to allow it?

19 April 2010

A District Each for Dato and Rolly

In upholding the creation of a representative district for Dato Arroyo and Rolly Andaya, (yes, that is what R.A. 9176 succeeds in doing), the Supreme Court cited the juggling of populations by the Constitutional Commission when it first divided the country into representative districts. Of course, the Constitutional Commission could juggle and put almost anything into the draft they were working on. After all, the Commission’s work still had to be submitted to the people for approval. But not everything that the Constitutional Commission could do may be done by Congress. Congress is bound not by what the Constitutional Commission did but by what the Constitution says.

The Constitution says that there are five standards for the creation of representative districts.

First, representative districts shall be “apportioned among the provinces, cities and the Metropolitan Manila in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio.” This requirement or its equivalent formula is found in the 1935, 1973 and 1987 Constitutions.

Second, each province, irrespective of size, is entitled to at least one representative district. This too is found in all three Constitutions.

Third, a city can constitute a representative district only if it has a population of at least 250,000. This requirement appears only in the 1987 Constitution.

Fourth, each representative district shall comprise, as far as practicable, contiguous and compact territory. This too is in all three Constitutions.

Fifth, the 1935 Constitution says: “The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise.” The 1987 version says: “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.”

Of these five standards, the first holds preeminent position. It is the equal protection clause of the Bill of Rights made specific for districts. The others are auxiliary requisites intended to assure observance of the first requisite. It is thus most important that the meaning of the first requisite be understood and that Congress observe it. What does it mean?

The phrase “in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio” is borrowed from American constitutional law and jurisprudence. But it has become necessarily ours because of the American provenance of our basic constitutional law and especially because it is rooted in the equal protection clause. As American jurisprudence clearly teaches, “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.” Or again: “We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the [legislative] seats . . . must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.”

Dilution is exactly what happened in the Camarines Sur case. Camarines Sur had four representative districts each containing roughly 400,000 inhabitants. Of these the largest was the second district with 474,899, followed by the fourth district with 429,070, and next the first district with 417,304. R.A. 9716 decided to divide the smallest of the three into two districts thereby accommodating Dato Arroyo and Rolando Andaya. As a consequence, the smaller original third district would now be represented by two congressmen whereas the two larger districts would be represented by only one each. 474,899 and 429,070 voters voters can elect only one congressman each whereas 417,304 can elect two! Translate that into pork barrel! What could be more blatantly discriminatory?

The ponencia says that population is not the only thing. Yes, but it is the main thing because sovereignty is in the population. The ponencia did not show nor could it show any other factor to outweigh the sovereignty of population.

The ponenca also makes much of the fact that the text of the Constitution expressly provides a population minimum of 250,000 only for cities. True, but an overriding principle is proportionality and equality of population found in the first standard. For cities, 250,000 is the strict mathematical minimum, as upheld in the recent Malolos case. For others, the standard is not a mathematical minimum but proportionality which honors the equal protection clause. The only units exempted from proportionality are provinces.

What we have here is a Supreme Court approved assault on the equal protection clause. It is an assault which inflicts a deep wound on our democratic system.

Finally, what of the command that Congress make a reapportionment within three years after the return of every census? Its purpose is to periodically readjust proportionality. This purpose, however, is defeated by piecemeal reapportionment such as the recent one of Camarines Sur. Piecemeal reapportionment is a direct assault against equal protection. For this reason, reapportionment should only be done nationwide. Unfortunately piecemeal reapportionment continues to have the blessing of the Supreme Court. A deliberate act of Congress creating disproportion and blessed by the Supreme Court is not only unconstitutional but also disgraceful.

12 April 2010

Easter Thoughts on a Murky Election Year

“He descended into hell.” It’s a line in the Apostle’s Creed through which we slide unthinking. We mouth it as “descent into hell.” What does it mean? What happened then? I find an ancient homily, read in the Divine Office for Holy Saturday, a fascinating Easter reading.

“Something strange is happening – there is a great silence on earth today, a great silence and stillness. The whole earth keeps silence because the King is asleep. The earth trembled and is still because God has fallen asleep in the flesh and he has raised up all who have slept ever since the world began. God has died in the flesh and hell trembles with fear.

“He has gone to search for our first parent, as for a lost sheep. Greatly desiring to visit those who live in darkness and in the shadow of death, he has gone to free from sorrow the captives Adam and Eve, he who is both God and the son of Eve. The Lord approached them bearing the cross, the weapon that had won him the victory. At the sight of him Adam, the first man he had created, struck his breast in terror and cried out to everyone: ‘My Lord be with you all.’ Christ answered him: ‘And with your spirit.’ He took him by the hand and raised him up, saying: ‘Awake, O sleeper, and rise from the dead, and Christ will give you light.’

“‘I am your God, who for your sake have become your son. Out of love for you and for your descendants I now by my own authority command all who are held in bondage to come forth, all who are in darkness to be enlightened, all who are sleeping to arise. I order you, O sleeper, to awake. I did not create you to be held a prisoner in hell. Rise from the dead, for I am the life of the dead. Rise up, work of my hands, you who were created in my image. Rise, let us leave this place, for you are in me and I am in you; together we form only one person and we cannot be separated. For your sake I, your God, became your son; I, the Lord, took the form of a slave; I, whose home is above the heavens, descended to the earth and beneath the earth. For your sake, for the sake of man, I became like a man without help, free among the dead. For the sake of you, who left a garden, I was betrayed to the Jews in a garden, and I was crucified in a garden.

“‘See on my face the spittle I received in order to restore to you the life I once breathed into you. See there the marks of the blows I received in order to refashion your warped nature in my image. On my back see the marks of the scourging I endured to remove the burden of sin that weighs upon your back. See my hands, nailed firmly to a tree, for you who once wickedly stretched out your hand to a tree.

“‘I slept on the cross and a sword pierced my side for you who slept in paradise and brought forth Eve from your side. My side has healed the pain in yours. My sleep will rouse you from your sleep in hell. The sword that pierced me has sheathed the sword that was turned against you.

“‘Rise, let us leave this place. The enemy led you out of the earthly paradise. I will not restore you to that paradise, but I will enthrone you in heaven. I forbade you the tree that was only a symbol of life, but see, I who am life itself am now one with you. I appointed cherubim to guard you as slaves are guarded, but now I make them worship you as God. The throne formed by cherubim awaits you, its bearers swift and eager. The bridal chamber is adorned, the banquet is ready, the eternal dwelling places are prepared, the treasure houses of all good things lie open. The kingdom of heaven has been prepared for you from all eternity.’”

* * * * *

It was a long wait for our forefathers before liberation could come. But it came. It will for us too. But it will not come from human saviors. That is one message of Easter.

The election campaign period is a festive period for false Messiahs. This is where we are today. Let them make their promises. It is a ritual we go through every three years.

A modern writer gives us some Easter thoughts to chew on: “The writers of the early church are generally of more use to me than modern theologians when I am trying to make theological concepts come alive. John Chrysostom, for example, packs his dogma into plain speech and concrete imagery. A human voice comes through. The homily he preached in Constantinople before being forced into an exile from which he would never return is fortified with biblical allusion and still heart-rending more than 1,600 years later: ‘Christ is with me, whom shall I fear? Though waves rise up against me, the seas, the wrath of rulers: These things are no more to me than a cobweb.’ He encourages the congregation not to lose hope because: ‘Where I am, there also are you; where you are, there too am I; we are one body.... We are separated by space, but we are united by love. Not even death can cut us apart. For even if my body dies, my soul will live on and will remember my people.

“A man named Paul, facing execution, once wrote from a jail cell: ‘Rejoice in the Lord always; again I will say, Rejoice’ (Phil 4:4). A man named Jesus, on the night before he died, ate his last meal with friends, talked up a storm and no doubt startled the company by proclaiming, ‘I am saying these things to you so that my joy may be in you, and that your joy may be complete’ (Jn 15:11). Wondrous things afoot: an inexpressible but ever-present love, a joy so profound that even death cannot diminish it. Happy Easter!”

5 April 2010

What Happens Next?

My Lolo Tomas used to say that the most difficult persons to rouse out of bed are those who are already awake. He was the best proof of that, and my Lola Rosario often had to deal with that problem. Even on his birthday, when Lola Rosario wanted to drag him to morning Mass in the days when there were no evening Masses yet, Lolo Tomas would groan that he was born in the late afternoon.

When some people asked me what I think of the possibility of reversal of the Court’s decision on President Arroyo’s power to appoint the next Chief Justice, I was severely tempted to answer with the wisdom of Lolo Tomas. But I should not and did not. Each person sees the world through his or her own optic and decides what best to do.

In the academic world there is also such a thing as a passing mark ex aliunde, that is, not on the basis of exam grades but on some other basis. It is also possible for a justice to find various possibilities and choose what he or she sees as best for the moment. In politics this sometimes works as the “Caiphas principle” when you sacrifice someone in order to save or favor others.

Like it or not, nine justices see the meaning of the Constitution as allowing President Arroyo to appoint the next Chief Justice. The odds are prohibitive against reversal of a 9 to 1 decision; but I am hoping against hope that reversal will come. I always like to appeal to what Hilaire Belloc said about hope being a virtue when the situation is hopeless.

If my hope is crushed, I will just have to join Gibo Teodoro in his desire that President Arroyo, in presidential magnanimity and to honor her late father who denounced “midnight appointments,” will not bequeath to the nation a Chief Justice with doubtful legitimacy. As former Justice Mendoza correctly says about the decision of the Court, it is not a command requiring her to appoint the next Chief Justice. Should she decide not to appoint, the nation will heave a deep sigh of relief even if we have to fight about who the next President should appoint – as I am sure we will. It will probably take some time before the Court can become depoliticized again.

The Supreme Court has also thrown the ball to the JBC court. By command of the Constitution the next President must be chosen from among a list prepared by the Judicial and Bar Council. The Court has ordered the JBC to submit a list on or before May 17.

Clearly the Judicial and Bar Council has the duty to submit a list. But does the constitutional duty to submit a list mean a duty to submit a list on or before May 17 or on a date at the JBC’s discretion? If we go by the dictum that the Constitution means what the Supreme Court says it means, the JBC must submit a list on or before May 17. But is not the duty of the JBC to submit a list within the 90 day period following the occurrence of the vacancy -- which means any time before August 17? Can the Court impose on the JBC the manner of exercising its discretion? Is not the power of the Court over the JBC merely one of “supervision” and not of “control”? These questions were not discussed by the Court in its decision. These will probably come up up in a motion for reconsideration.

A Military Junta?

So much for now about the search for an embraceable Chief Justice. Let us talk about a Palace spokesperson’s threat to sic a military junta on the nation. I can almost imagine Spokesperson Planas as a stern school mistress waving a rod and saying to students, “Behave, or the Armed Forces will get you!”

Talk about a military junta is connected with speculation about a failed automated election resulting in failure to elect a President or Vice President or a delay in proclaiming them.

It is not as if we did not have a formula for dealing we such a possibility. We do. There is a rule on presidential succession in the Constitution. The order of succession starts with the Vice-President, is followed by the President of the Senate, and finally the Speaker of the House. Today, however, we have a situation where the term of all three of them will end with the term of the President at noon next June 30, but Congress has not done anything to provide for such situation.

This situation need not be alarming if the Senate President were one of those whose term will not end on June 30. There are twelve of them, i.e., the twelve who were elected three years ago and whose term will end only in 2013, and President Enrile is not one of them. To save the nation from Spokeperson Planas’ threat of a military junta, the easy solution is for the Senate to elect a new Senate President whose authority as Senate President will continue beyond June 30. Will the Senate do this? Senate President Enrile says there is plenty of time for that. We ask the Senate to allay the people’s fear of a military junta by electing a new Senate President who can act as President until a President or Vice-President is known.

A Back Door Entry to Congress

I agree with those who say that the party-list system is getting to be a back door entry point into the House of Representatives for those who do not qualify or deserve to be there. The party-list law says that a party-list nominee must be a member of the party to be represented. This should mean that the nominee’s heart and mind must belong to the party. This, however, is an internal quality that is not easily measurable or even determinable. This is where the hole in the wall is.

I recall that the party-list system was envisioned as an experiment. I believe that it is now time to evaluate the experiment.

29 March 2010

Shadow of Doubt

No, this is not about the controversial book Shadow of Doubt by Marites Vitug. It is about the Supreme Court’s decision upholding the power of President Arroyo to appoint the next Chief Justice.

I have always held that the Constitution means what the Supreme Court says it means – but only until the Supreme Court itself changes its mind. The mind of the Court, after all, is not cast in bronze. Sometimes it is cast in wax.

In 1998 the Supreme Court expressed its mind thus:

"The Court's view is that during the period stated in Section 15, Article VII of the Constitution - "(t)wo months immediately before the next presidential elections and up to the end of his term" - the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is noteworthy that the prohibition on appointments comes into effect only once every six years."

Last Wednesday, or two presidential terms and some strategic appointments later, the Supreme Court changed its mind and now says, 9-1-3, that it is perfectly alright for the President to make appointments to the judiciary during the period of the ban.

The strained ponencia of Justice Bersamin is a Sysiphus climb which, upon reaching the top, has been blown to smithereens by the dissent of Justice Carpio-Morales.

Strangely, the ponencia’s argument is anchored not on the language of the Constitution but on the structural arrangement of the provisions. Thus, since the ban on making appointments is found in Article VII on the Executive Department, the ponencia concludes that it should apply only to the executive department -- forgetting that the power to appoint given in Article VII covers positions in the judiciary.

The ponencia also ignores key principles of statutory construction. Ubi lex non distinguit nec nos distinguere debemus. (When the law does not distinguish, neither should we.) Inclusio unius est exclusio alterius. (The inclusion of one excludes others.) Casus omissus pro omisso habendus est. (A subject that has been omitted must be considered excluded.) In utter disregard of all these principles the ponencia would have us understand that, when the Constitution says “except temporary appointments to executive positions when continued vacancies therein would prejudice public service or endanger public safety,” we must in the same breath add "and positions in the judiciary." This is unauthorized constitutional amendment.

The Supreme Court at any particular time is usually referred to by the name of the current Chief Justice. Ours now is more appropriately called the Arroyo Court. During the period when the controversy about the President's appointing authority was being debated in media, the gut feel of many, myself included, was that the majority of the Arroyo Court would vote the way they did last Wednesday. Thus last Wednesday's decision did not come as a surprise. "Shadow of Doubt," catchy as it might be, does not express the full flavor of what is percolating in the hearts and minds of many.

In the course of the debate on the subject, much of the argument used was that the presence of a Chief Justice at all times is demanded by the Constitution and by public welfare. It was argued that the leadership of the Chief Justice was crucial all the time and no one of the Associate Justices could fill the gap. That this argument is not echoed in the ponencian is perhaps grudging recognition of the fact that the Constitution itself allows a "Chief-less" Supreme Court for 90 days in the belief that one of the Associates can effectively substitute for him during a temporary absence.

Indeed, the leadership of the Chief Justice is important but not crucial. We have had many occasions when the Court was led by a temporary presiding officer but with no loss to the nation. In fact, the current Chief Justice is on a two -week leave and nobody is shouting “Help!”

Because I believe that the role of a Chief Justice is important, although not crucial, I would have wished that Chief Justice Reynato Puno had participated in the decision. Unfortunately the Chief Justice chose a stance comparable to that of Joshua Clottey. While reading the Court’s decision, I missed the Chief Justice's vigorous Court presence.

I must say, however, that the constitutional provisions involved are actually not that mysterious. But the tug of war of the political process can inject between the lines of the Constitution undercurrents that can muddle the flow of arguments. Not the least of these undercurrents is the conflict of personalities and personal preferences that are further tarnishing the image of an already tarnished Court. The fact that both Justices Carpio and Corona inhibited themselves is admission enough that they see the contest as between the two of them. Too bad, because, first, the contest is primarily about the law and not about them, and second, I would have wanted to see their participation in the legal tussle.

It will not take much imagination to guess who the President will not appoint. Conversely, it is easy to guess who she will appoint. However, whoever that person might be is less significant than the impact of the processes that will have led to the appointment. What the fallout will be from all this remains to be seen. One thing is sure today: popular confidence in the integrity and independence of the Court has been severely sapped.

22 March 2010

Who Can Be a Party-List Rep?

When word went around that Congressman Mikey Arroyo, anticipatedly displaced by his mother from his seat in Pampanga, might run for a position in Congress as party-list representative, true or not, people naturally wondered if this was constitutionally allowable. For that matter, a similar question was asked about Secretary Angelo Reyes.

It is a legitimate question because there is a distinction between the qualifications of a district representative and those of a party-list representative.

We are familiar with the qualifications of district representatives. They must be natural born Filipino citizens, at least twenty-five years of age on the day of the election, registered voters in the district to be represented, and residents of the district they hope to represent for at least one year immediately preceding the election. No qualities of the person are prescribed, no level of education, no party affiliation, no profession. One can be a lawyer, a doctor, a billionaire, a laborer, or even a Cardinal. Yes, even a Cardinal, because the Constitution says that no religious test shall be imposed for the exercise of civil or political rights.

Clearly, Mikey Arroyo or Secretary Reyes can be one of them. Not everyone, however, can be a party-list representative.

The birth of the party-list representative came with the party-list system. Both arose out of the desire to give voice to the underrepresented and marginalized classes of society. The Constitution has reserved twenty percent of the total membership of the House of Representatives for party-list representatives. According to current jurisprudence and on the basis of the total number of representatives today, party-list representatives can be as many as fifty-five – a force to reckon with if strategically deployed.

Constitutionally, a party-list representative has the same qualifications as a district representative, except for the fact that party-list representatives, since they do not represent a district, can be registered voters in any place of their choice. Since, however, they are to represent a party-list organization, they must also be bona fide members of a party-list organization.

The Constitution says that the party-list members must be chosen, as provided by law, from "the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may b provided by law, except the religious sector." Hence, if Mikey Arroyo is to become a party-list representative, he must fit into one of these classes. This may take a lot of doing!

In 1971 the Supreme Court thoroughly discussed the issue as to what kind of organizations may participate in the party-list system. The current doctrine on this subject is summed in the Epilogue to the 2001 decision:

"The linchpin of this case is the clear and plain policy of the law: 'to 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.

"Crucial to the resolution of this case is the fundamental social justice principle that those who have less in life should have more in law. The party-list system is one such tool intended to benefit those who have less in life. It gives the great masses of our people genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground, that change is possible. It is an invitation for them to come out of their limbo and seize the opportunity.

"Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other respondents that the party-list system is, without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization.

"In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA 7941 are nothing more than a play on dubious words, a mockery of noble intentions, and an empty offering on the altar of people empowerment. Surely, this could not have been the intention of the framers of the Constitution and the makers of RA 7941."

The Court's decision is a clear enunciation of what an organization must stand for if it is to be allowed to participate in the party list system. It is a great idea which I myself supported in the Constitutional Commission. But it can also be a backdoor entry point for the undeserving. Hence, who should be elected to represent that organization?

Section 9 of the Party-List Law says that he must be "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." This should mean that a party-list representative's heart and mind should belong to the organization he or she represents. It may not always be easy to substantiate this requirement. Conversely, it may be easy to feign possession of this requirement!

15 March 2010

Church-State Fundamentals

Fundamentals of Church -State Relation

Joaquin G. Bernas, S.J.

I guess it was the statement of two bishops supporting the candidacy of a particular presidential candidate which triggered a request from a tv station for an interview on the subject of church-state relations. Or it could also have been the aggressive stance of some churchmen on the reproductive health debate or the negative reaction of churchmen to Secretary Cabral’s distribution of condoms. Whatever it was, there always seems to be a need for clarifying from time to time what separation of church and state means, even if I myself always prefer to describe the phenomenon by the more technical phrase of the non-establishment of religion. The technical clause has a better chance of conveying the precise meaning of what is referred to commonly as separation of church and state.

It is sometimes thought by some that separation of church and state means that church people should not get involved in the hurly burly of public and political life. In other words, they should confine themselves to the sacristy. But to understand the subject properly one must begin with what the Constitution says. The constitutional command says: “No law shall be passed respecting an establishment of religion . . .” Immediately it can be seen that the command is addressed not to the Church but to the State. It is the State, after all, which passes laws.

The fundamental meaning of the clause is the prohibition imposed on the state not to establish any religion as the official state religion. We are familiar with the background of this prohibition. Under the Spanish Constitution of 1876, Catholicism was the state religion and Catholics alone enjoyed the right of engaging in public ceremonies of worship. While the Spanish Constitution itself was not extended to the Philippines, Catholicism too was the established church in the Islands under the Spanish rule. As the established church, or the official church, Catholicism was protected by the Spanish Penal Code of 1884, which was in effect in the Philippines. Thus, of the offenses enumerated in the chapter of the Penal Code entitled "Crimes Against Religion and Worship," six specifically and solely referred to crimes against the Catholic church.

We know that one of the immediate effects of the advent of the American constitutional system in the Philippines was the denial to the Catholic church of the privileged position it occupied under Spanish sovereignty. The Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect." The separation, in fact, came earlier than the Philippine Bill, which merely repeated the provision relative to religion in President McKinley's Instruction, which, in turn, merely implemented Article X of the Treaty of Paris.

The constitutional command, however, is more than just the prohibition of a state religion. That is the minimal meaning. Jurisprudence has expanded it to mean that the state may not pass "laws which aid one religion, aid all religions, or prefer one religion over another."

That is the “separation part” of the constitutional command. The other part is the “free exercise clause.” Both are embodied in one sentence which says: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.”

When people see bishops or priests venturing into public or political life, the instinctive question that is often asked is: Is this a violation of the separation of church and state? The question is understandable because of the frequent use of the phrase “separations of church and state” and people often equate church with bishops or priests. But the negative command of the Constitution is addressed not to bishops or priests but to the state and those who exercise state authority. As to bishops and priests, the pertinent part of the constitutional command is the guarantee of the free exercise of religion.

So insistent, in fact, is the Constitution on this freedom of religion that it goes on to add: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.” The beneficiaries of this freedom include bishops and priests and clerics and ministers of religion of every kind. More than that , they are also protected by the freedom of speech and assembly of the Constitution.

Am I therefore saying that, by all means, let clerics participate in the political arena. That is not what I am saying. All I am saying is that there is nothing constitutionally wrong when priests or bishops get involved in public affairs or politics. But as a cleric myself, I am aware that I am subject to two kinds of laws: state law and church law.

Let me just quote what I consider a rule of thumb for clerics: “The question of the secular and political activity of priests was considered at the Third General Synod of Bishops in 1971. The document stressed the priority of the special mission which pervades the total existence of priests. In the ordinary course of events, full time should be given to the priestly ministry. Assumption of a role of leadership or a style of active militancy for some political faction must be ruled out unless, in concrete extraordinary circumstances, this is really demanded by the good of the community, and it has the consent of the bishop after consultation with the priests’ council.”

8 March 2010

Fundamentals of Church -State Relation

Joaquin G. Bernas, S.J.

I guess it was the statement of two bishops supporting the candidacy of a particular presidential candidate which triggered a request from a tv station for an interview on the subject of church-state relations. Or it could also have been the aggressive stance of some churchmen on the reproductive health debate or the negative reaction of churchmen to Secretary Cabral’s distribution of condoms. Whatever it was, there always seems to be a need for clarifying from time to time what separation of church and state means, even if I myself always prefer to describe the phenomenon by the more technical phrase of the non-establishment of religion. The technical clause has a better chance of conveying the precise meaning of what is referred to commonly as separation of church and state.

It is sometimes thought by some that separation of church and state means that church people should not get involved in the hurly burly of public and political life. In other words, they should confine themselves to the sacristy. But to understand the subject properly one must begin with what the Constitution says. The constitutional command says: “No law shall be passed respecting an establishment of religion . . .” Immediately it can be seen that the command is addressed not to the Church but to the State. It is the State, after all, which passes laws.

The fundamental meaning of the clause is the prohibition imposed on the state not to establish any religion as the official state religion. We are familiar with the background of this prohibition. Under the Spanish Constitution of 1876, Catholicism was the state religion and Catholics alone enjoyed the right of engaging in public ceremonies of worship. While the Spanish Constitution itself was not extended to the Philippines, Catholicism too was the established church in the Islands under the Spanish rule. As the established church, or the official church, Catholicism was protected by the Spanish Penal Code of 1884, which was in effect in the Philippines. Thus, of the offenses enumerated in the chapter of the Penal Code entitled "Crimes Against Religion and Worship," six specifically and solely referred to crimes against the Catholic church.

We know that one of the immediate effects of the advent of the American constitutional system in the Philippines was the denial to the Catholic church of the privileged position it occupied under Spanish sovereignty. The Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect." The separation, in fact, came earlier than the Philippine Bill, which merely repeated the provision relative to religion in President McKinley's Instruction, which, in turn, merely implemented Article X of the Treaty of Paris.

The constitutional command, however, is more than just the prohibition of a state religion. That is the minimal meaning. Jurisprudence has expanded it to mean that the state may not pass "laws which aid one religion, aid all religions, or prefer one religion over another."

That is the “separation part” of the constitutional command. The other part is the “free exercise clause.” Both are embodied in one sentence which says: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.”

When people see bishops or priests venturing into public or political life, the instinctive question that is often asked is: Is this a violation of the separation of church and state? The question is understandable because of the frequent use of the phrase “separations of church and state” and people often equate church with bishops or priests. But the negative command of the Constitution is addressed not to bishops or priests but to the state and those who exercise state authority. As to bishops and priests, the pertinent part of the constitutional command is the guarantee of the free exercise of religion.

So insistent, in fact, is the Constitution on this freedom of religion that it goes on to add: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.” The beneficiaries of this freedom include bishops and priests and clerics and ministers of religion of every kind. More than that , they are also protected by the freedom of speech and assembly of the Constitution.

Am I therefore saying that, by all means, let clerics participate in the political arena. That is not what I am saying. All I am saying is that there is nothing constitutionally wrong when priests or bishops get involved in public affairs or politics. But as a cleric myself, I am aware that I am subject to two kinds of laws: state law and church law.

Let me just quote what I consider a rule of thumb for clerics: “The question of the secular and political activity of priests was considered at the Third General Synod of Bishops in 1971. The document stressed the priority of the special mission which pervades the total existence of priests. In the ordinary course of events, full time should be given to the priestly ministry. Assumption of a role of leadership or a style of active militancy for some political faction must be ruled out unless, in concrete extraordinary circumstances, this is really demanded by the good of the community, and it has the consent of the bishop after consultation with the priests’ council.”

8 March 2010

I guess it was the statement of two bishops supporting the candidacy of a particular presidential candidate which triggered a request from a tv station for an interview on the subject of church-state relations. Or it could also have been the aggressive stance of some churchmen on the reproductive health debate or the negative reaction of churchmen to Secretary Cabral’s distribution of condoms. Whatever it was, there always seems to be a need for clarifying from time to time what separation of church and state means, even if I myself always prefer to describe the phenomenon by the more technical phrase of the non-establishment of religion. The technical clause has a better chance of conveying the precise meaning of what is referred to commonly as separation of church and state.

It is sometimes thought by some that separation of church and state means that church people should not get involved in the hurly burly of public and political life. In other words, they should confine themselves to the sacristy. But to understand the subject properly one must begin with what the Constitution says. The constitutional command says: “No law shall be passed respecting an establishment of religion . . .” Immediately it can be seen that the command is addressed not to the Church but to the State. It is the State, after all, which passes laws.

The fundamental meaning of the clause is the prohibition imposed on the state not to establish any religion as the official state religion. We are familiar with the background of this prohibition. Under the Spanish Constitution of 1876, Catholicism was the state religion and Catholics alone enjoyed the right of engaging in public ceremonies of worship. While the Spanish Constitution itself was not extended to the Philippines, Catholicism too was the established church in the Islands under the Spanish rule. As the established church, or the official church, Catholicism was protected by the Spanish Penal Code of 1884, which was in effect in the Philippines. Thus, of the offenses enumerated in the chapter of the Penal Code entitled "Crimes Against Religion and Worship," six specifically and solely referred to crimes against the Catholic church.

We know that one of the immediate effects of the advent of the American constitutional system in the Philippines was the denial to the Catholic church of the privileged position it occupied under Spanish sovereignty. The Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect." The separation, in fact, came earlier than the Philippine Bill, which merely repeated the provision relative to religion in President McKinley's Instruction, which, in turn, merely implemented Article X of the Treaty of Paris.

The constitutional command, however, is more than just the prohibition of a state religion. That is the minimal meaning. Jurisprudence has expanded it to mean that the state may not pass "laws which aid one religion, aid all religions, or prefer one religion over another."

That is the “separation part” of the constitutional command. The other part is the “free exercise clause.” Both are embodied in one sentence which says: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.”

When people see bishops or priests venturing into public or political life, the instinctive question that is often asked is: Is this a violation of the separation of church and state? The question is understandable because of the frequent use of the phrase “separations of church and state” and people often equate church with bishops or priests. But the negative command of the Constitution is addressed not to bishops or priests but to the state and those who exercise state authority. As to bishops and priests, the pertinent part of the constitutional command is the guarantee of the free exercise of religion.

So insistent, in fact, is the Constitution on this freedom of religion that it goes on to add: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.” The beneficiaries of this freedom include bishops and priests and clerics and ministers of religion of every kind. More than that , they are also protected by the freedom of speech and assembly of the Constitution.

Am I therefore saying that, by all means, let clerics participate in the political arena. That is not what I am saying. All I am saying is that there is nothing constitutionally wrong when priests or bishops get involved in public affairs or politics. But as a cleric myself, I am aware that I am subject to two kinds of laws: state law and church law.

Let me just quote what I consider a rule of thumb for clerics: “The question of the secular and political activity of priests was considered at the Third General Synod of Bishops in 1971. The document stressed the priority of the special mission which pervades the total existence of priests. In the ordinary course of events, full time should be given to the priestly ministry. Assumption of a role of leadership or a style of active militancy for some political faction must be ruled out unless, in concrete extraordinary circumstances, this is really demanded by the good of the community, and it has the consent of the bishop after consultation with the priests’ council.”

8 March 2010