Monday, April 17, 2006

Gag the Clergy?

FATHER JOAQUIN BERNAS, S.J. is mad in his Sounding Board column today, Churchmen and Charter Change. Political scoundrels who want to "gag the clergy," are misreading and distorting the principle of the Separation of Church and State to exclude churches, clergy and other religious persons from participating in politics, for example, by commenting on charter change moves by the government. I sympathize deeply with Fr. Bernas in that churchmen really are damned if they do and damned if they don't when it comes to speaking out on public controversies. Those scoundrels of which he speaks can easily get away with it in part because too many good citizens mistakenly think that the Constitution does forbid churches from "meddling" in politics, by criticizing or praising government officials and public policies; that it is unconstitutional for organized religions like the Catholic Church to endorse candidates for public office; or to take a stand on such controversial political issues like Charter Change, because this supposedly violates the "wall of separation" between Church and State.

These are pernicious and surprisingly durable misconceptions about the democratic principles of Religious Freedom. The Constitution places no such restrictions or sanctions on clergymen and members of religious faiths, because the Constitution steadfastly regards all such persons completely as private and ordinary citizens, who can't be singled out politically because of their creed. The Constitution does not diminish by one iota, the rights and freedoms of a citizen because of his or her religious beliefs or affiliations. So I'd like to help Fr. Bernas today in his commendable but difficult endeavour of writing newspaper columns for the sake of advancing the art of explaining particularly subtle and "difficult" concepts of law, religion and morality.

In the Bill of Rights Art. III Sec. 5 of the 1987 Philippine Constitution freedom of religion is established as follows --
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. 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.
Father Bernas wrestles with the questions that are implicit and germane to the very powerful misconceptions that enthrall the public --
But whatever phrase may be used, questions arise. What may not be "established"? What precisely are being separated and how? Or, what is the "religion" which the Constitution says may not be "established," and what does it take to "establish" a religion? And what is "Church" and what is "State" whose separation must remain inviolable?
Here is my humble effort at an answer to Fr. Bernas' rhetorically posed queries. (I operate from a favorite tenet of my antecedent: "The Law is just a precision form of English Grammar and Composition.") First look at the red-bolded words in Art. III Sec.(5): religion and thereof.

These two words appearing together in the same sentence, refer to one and the same exact thing. What may not be established by the Law is also what the Law may not prohibit. Mysteriously and magically, in this equivalence one can actually discover the meaning of both, by using a practical algorithm!

This interpretation actually leads to a very practical way of deciding whether something involving separation of church and state is unconstitutional under this provision or not and answers Father Bernas' question about what it is, exactly, that it is unconstitutional for the State to establish or to prohibit, a point of great confusion for the general public and even for many bloggers, editorialists and columnists.

For example, is it okay to "gag the clergy" because they are violating the separation of church and state? Should the State prohibit the clergy from speaking out on such a very political thing as the resignation of the President or the people's initiative to undertake Charter Change. Well, would it be Constitutional for the State to pass a law requiring the churches to speak out on those same issues? I think most reasonable citizens would say it is unconstitutional to require the clergy to so express their views. ERGO it is unconstitutional to prohibit or gag the clergy from expressing such opinions. Quod erat demonstrandum!

In this first sentence also, the Constitution forbids the State from "respecting an establishment of religion." Although most people agree this does mean it is unconstitutional to establish a full blown State Religion (e.g. an official Church of the Republic of the Philippines), there seems to be little agreement on what else is forbidden under this category.

What laws, policies or actions on the part of the State would constitute unconstitutional establishment of religion? (other than the establishment of a full blown State Religion?)

Rather than give a theoretical answer, I like the following practical algorithm for determining whether "X" is an unconstitutional establishment of religion:

Imagine that the State were to prohibit the practice of "X" by religious persons, such as clergymen. If such prohibition is deemed unconstitutional, so would respecting its establishment. And it works in the other direction too.

For example, it is clearly unconstitutional to prohibit people from gathering together in churches to peacefully assemble and pray to the deity of their free choice. Consequently, it is also unconstitutional for the State to pass a law requiring that citizens go to Church every Sunday.

Likewise, if the Government passed a Law requiring every organized religion in the country to make commentary in writing on the policies and initiatives of the President, that would seem to be an unconstitutional dragging of religion into politics, a promotion or establishment of religion in a realm it may not want to be involved in. But conversely, it is unconstitutional to prohibit the same churches from making such comments. Again, quod erat demonstrandum. Fr. Bernas is right! Gagging the clergy is indubitably unconstitutional.

Finally, the most important thing about Separation that needs better explaining is that the Principle of Separation of Church and State is addressed exclusively to the State as a demand of absolute neutrality when it comes to Religion. The State may neither promote religion nor prohibit its free exercise. The Churches on the other hand, are completely free to promote and practice all the Religion they want. That's the Law.

I should end with that emphatic point in the very last sentence of Art.III Sec(5) that the gaggers steadfastly ignore and talk and act as if it did not exist: No religious test shall be required for the exercise of civil or political rights.

The wall of separation that must remain inviolable, is that wall of protection for the people's religious liberty, the wall whose bricks are the rights of privacy, whose mortar is freedom of speech, expression and peaceful assembly, that demands the State mind its own business and not meddle in the free exercise of democratic rights. Even if you wear a cassock or a cilice!

All other requirments being met, Archbishop Angel Lagdameo or Manila's Gaudencio Cardinal Rosales could even run for President, if they were unfortunate enough to have such an insane ambition.

To the Comment Thread: Can the Catholic Church or any other religion field itself in the Party List elections?

19 comments:

Lord Dracula said...

Nope, neither the Catholic Church nor any other religious groups can field themselves in the party-list elections. Article VI, Section 5, paragraph 2 explicitly states:

The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. 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.(emphasis mine)

Unless, of course, amended by through the Chacha Choochoo train. There's an implementing law on party lists; I just can't find it right now.

Rizalist said...

Good catch LD. But how about the other part of the question. Can Lagdameo or Rosales or some other priest run for President?

Lord Dracula said...

Yes, they can. Eddie Villanueva is an example. He is the head of a religious organization. Why should a priest be disallowed?

Rizalist said...

LD, You are right of course, but that means a piece of the "religious sector" can reconstitute itself into what is in effect a political party, run its head, and if they lose, change back again. The real reason I raised this question is this. The business of the Party list is I think a basically anti-democratic feature of the 1987 constitution. I'm very suspicious that a "sector" is a "class concept". That "sectors" have political rights disturbs my sensibility no end.

I think such as Eddie Villanueva will continue to test our understanding too of the EXCLUSION of the religious sector from the party list.

It is such a self-contradicting charter 1987!

Lord Dracula said...

You have raised good points. I think I'll leave those to wiser persons. I'm just into speculations, nothing more.

It appears that the 1987 Charter was not well thought of. This gives the Chacha Choochoo train some gas. But that's another story.

Again, I believe priests and other clergy members can run; whether they transform their religion/sect/group as a political party is another matter. Heck, you can even stir some trouble by calling CIBAC and that party-list of Velarde's son as religious groups masquerading as political/party list groups!

Anyway, I'm off for tonight. Let's hope the blawggers will enlighten us on the matter.

Arbet

Karl M. Garcia said...

This is more of a question than a comment.(two questions)

Aren't the party lists supposed to represent the marginalized sectors?

Speaking of Eddie Villanueva, did his son run under a religious group party list or as a representative of a district?

Lord Dracula said...

Karl, Joel Villanueva represents CIBAC, the party list.

Again, read the Constitution. I quoted Article VI, Section 5, paragraph 2. How can a party list be marginalized if it could campaign on a national level? That means they have money to do so. Besides, the term 'marginalized' is not used in the said provision.

Karl M. Garcia said...

Thank You Lord Dracula or is it Arbet?

I will take a lok at my pocket sized constitution,which has not been read for a long time.

That term marginalized was only heard on news report in the am radio by some know it all announcer or his guest.
Now, I remember Joel is under the Cibac party list becuase there is noway the JIL party list would be allowed.

Thanks Lord D

Karl M. Garcia said...

Lord D,
since most bloggers are in the conference might as well direct this question to you.

Yes nowhere in the constitution says marginalized sectors.They must have money to run in a national level... How can the urban poor and peasants claim to have no money then? I may have not articulated it the way I want it,but I hope you get my drift.

Karl M. Garcia said...

My mistake in bringing up marginalized sectors.
To be marginalized is to be set aside.It was wrong for me to say that partylists are from marginalized sectors.

Since I think Even the Blawgers are in the conference...pardon my comments...
to borrow Lord D's term I am just speculating here.

HILLBLOGGER said...

Hi Dean

Just got back from an out of town holiday.

Hmmm... who wants to gag the clergy? Let them speak all they want from the pulpit of their church direct to their congregation.

But if they start meddling and pressuring politicians to breach the rule of law, they should be put behind bars.

Anyway, I still gotta think about that too...

Lord Dracula said...

Hi, Karl, you may call me Arbet.

You have to distinguish the peasant and the poor from the groups that represent them. While most peasants and the urban poor are, well, poor, the groups that represent them don't necessary follow to be dirt poor. Sometimes they get donations, sometimes they collect membership fees. If a group has 5000 members and each member has to pay 100 pesos per month, that's 500,000 pesos per month.

Karl M. Garcia said...

Hi Arbet,

For those reasons mentioned by you, I find the concept of party list useless.

since everygroup is mainstream anyways mjight as well have no partylists.

baycas said...

“BUHAY, CIBAC and ALAGAD are linked with religious formations. BUHAY Rep. Rene M. Velarde is the son of El Shaddai leader Mike Velarde. Rep. Emmanuel Joel J. Villanueva is the son of the Jesus Is Lord Movement evangelist Eddie Villanueva. Rep. Rodante D. Marcoleta belongs to the religious sect Iglesia Ni Cristo.”
(http://www.congress.gov.ph/download/13th/forum_oct04.pdf)

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RA7941 (http://www.comelec.gov.ph/laws/ra7941_txt.html) removes and/or cancels a religious sect or denomination, organization or association organized for religious purposes (sec. 6, no. 1).

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On separation of Church and State:

“Separation of Church and State is strictly defined in the 1987 Philippine Constitution to refer to two points: (1) that no religion may be established as the official religion of the State; and (2) that the State may not favor one religion over others. At the same time, the State shall forever allow the free exercise and enjoyment of religion and shall not require any religious test for the exercise of civil or political rights (see 1987 Philippine Constitution). The first point above is called the ‘non-establishment’ clause.”

“To be noted is the fact that nowhere does the Constitution prohibit Clergy and Religious from partisan politics. What prohibits them from active involvement in partisan politics is the Church's own laws and traditional wisdom.”

(http://www.cbcponline.net/documents/1990s/1998-church_politics.html)

Bernardo F. Ronquillo said...

The Principle of Separation of Church & State is threading a thin and almost indistinguisable line.

Rizal & even Balagtas so described a Philippines of their time where the Catholic Church is the state and State is the Church. Cardinal Sin exemplefied this when he led EDSA Uno and EDSA Dos and dissociated with EDSA Tres together with the Civil Society, most of whom are now shouting for Gloria to resign.

DJB, first, I ask where the clear and thick line is and then the people will know where to place themselves. It will take one strong and unassailable LEADER to do this.

Bernardo F. Ronquillo said...

DJB, a certain Xyja was asking about you at Ricky's blogsite. Karl answered him and I followed suit because I think it is a put down. I defended you, but it will be better if you see the comment and answer. God bless!

AmericanPainter said...

DJB,

Sort of off topic but speaking of gagging. PGMA’s gag order, EO 464 was shot down by the Supreme Court in a landmark case today. It was the first time in history that the Senate had gone to the Supreme Court.

The Supreme Court’s unanimous ruling seems to counter claims that the Supreme Court is in PGMA’s pocket because of her appointments Justice ruled today!.

Rizalist said...

AP--Perhaps you meant this comment to go in the post on the Supreme Court Decision. But anyway, EO 464 is really part of a set of four related cases now before the Supreme Court: Calibrated Preemptive Response, Proclamation 1017 and Garci's 2nd petition -- all relevant to the upcoming impeachment. We need to await these decisions to see how the Supreme Court intends to "shape the battlefield." Also read the comments of Atty. Marvin Aceron in the Friday post. It seems the Decision while superficially unfavorable to the President, actually represents an instruction sheet for the proper exercise of executive privilege. Of course I do welcome the decision itself -- but not because it proves anything about Supreme Court independence, even if the Court itself was perhaps conscious of the need to demonstrate that. I welcome it because it seems to me the right decision based on the facts.

kRiZ said...

hello here. i would like to comment. someone posted about collecting fees to members in JIL. how sad it really is when i heard people saying these things, because it ain't true. let us learn to know the real fact first before judging, not just the JIL Church but it can also be a person we just met.

the JIL Church is not asking or better, pushing people to give their "tithes and offerings", it's an open hearted, besides if we read the Bible, it is written in Malachi 3:7-10. all the tithes and offerings the JIL people give in every service will only be use for the growth of the Church, such as music instruments, food or help for the poor and many else.
this is not only done in JIL Church but in every Full Gospel Church.

un lang po. GOD BLESS US ALL and may the LORD BLESS THE PHILLIPINES, our BELOVED COUNTRY, inspire of EVERYTHING.