Sunday, September 27, 2009

Tuesday, September 22, 2009

The Religious Exception

Just a little over a month after Republic Act No. 9710, otherwise known as the Magna Carta of Women, has been approved, the Catholic Church is already laying the basis for an exemption from the full application of the law. In a speech during the Catholic Educational Association of the Philippines (CEAP) national convention, Monsignor Gerardo Santos, the association's president, said the CEAP will seek exemption from the provision of the law outlawing the expulsion or non-readmission of women employees or the non-admission of women in schools, on account of pregnancy outside of marriage.

Monsignor Santos is asserting CEAP member-schools' right to academic and religious freedom and vows he will see to it that such exemption is inserted in the law's implementing rules and regulations.

If and when a case involving this issue reaches the Supreme Court it will be the second of its nature. The first that landed on the Supreme Court is the 2003 case of Estrada v. Escritor (A.M. No. P-02-1651). For the first time in Philippine jurisprudence, Escritor laid down the rule on exemption of religious conduct from the application of a generally-applicable law. Briefly, the case involves a court employee, Escritor, who has been living with a man for years without the benefit of marriage. This man also happens to be married, although separated, with another woman. When an administrative complaint for immorality was filed against Escritor, she raised as a defense that her cohabitation with another man is sanctioned by the tenets of her religion and was with the knowledge and approval of her congregation's religious leaders.

In a lengthy and exhaustive opinion that is more of a dissertation rather than a court decision, then Associate Justice Reynato Puno, writing for the majority, said that the free exercise of religion clause of the Constitution protects the rights of individuals to engage in certain religious conduct - even if contrary to the provisions of existing law (read as exemption) - as long as it is based on sincerely-held religious belief and the state has no compelling interest to burden the exercise of such religious conduct. Three years after remanding the case to the Office of the Court Administrator (Supreme Court office that investigates complaints against court employees) - to determine the sincerity of the belief and its centrality to the professed believer's faith and allow the government adduce proof of a compelling state interest to penalize the non-marital relationship - the Supreme Court found for Escritor by ruling that the freedom of religion or free exercise clause of the Constitution exempts her from the provisions of the Revised Administrative Code penalizing immoral conduct.

While the Supreme Court recognized the state's legitimate interest in protecting the institution of marriage and the family, it refused to accept the government's claim of compelling state interest on such broad and general principles; it wanted more narrow or specific interests of the government that will be subverted if the non-marital union of Escritor with another man is not penalized.

The Supreme Court laid down the following important criteria when courts can carve out an exemption from a law of general applicability based on religious conduct, namely: (1) the law burdens religious freedom; (2) claimant's sincerity in his/her religious belief; (3) there is no compelling state interest involved; and (4) the burden on religious freedom is the least intrusive means of achieving the government's objective.

It is clear from the foregoing criteria that the fact that a law burdens a religious belief and its exercise, and such belief is sincerely-held by a person, if there is a compelling state interest involved and there are no alternative means of pursuing that interest, the claim of religious exemption will fail. Thus, in the American case of US v. Lee the Supreme Court of the United States found a compelling state interest in sustaining the fiscal viability of the social security system through mandatory contributions when it denied the Amish religious group's claim of religious freedom in refusing to pay social security taxes. On the other hand, the need to maintain peace and order and punish violent crimes would be a compelling state interest that would defeat a claim of religious freedom in, for example, religious practices involving human sacrifices.

The compelling state interest test is, therefore, a check on pleas for religious exemption, while at the same time it guarantees religious freedom under the free exercise clause by requiring only the strictest scrutiny of regulations, although secular in nature and are of general applicability, that incidentally burden religious freedom.

CEAP will undoubtedly rely on the criteria enunciated in Escritor in seeking the exemption from the Magna Carta of Women. Whether or not there is a compelling state interest in burdening the Catholic Church's moral doctrine as applied to unwed mothers will be a question the courts will have to address. But what is clear is that Escritor has paved the way for religious groups in seeking exemption from a law which, although is religion-neutral on its face, has the incidental effect of burdening the exercise of religious freedom.

Friday, September 11, 2009

Defeating the Intent of the Law

With 11 justices concurring and three dissenting, the Supreme Court, in Roque, et al., v. Comelec, et al., G.R. No. 188456 (September 10, 2009), voted to deny the petition questioning the legality of the poll automation contract entered into between Comelec and Total Information Management (TIM)-Smartmatic to fully computerize the 2010 national and local elections.

On July 10, 2009, Comelec awarded the poll automation contract to TIM and its foreign partner Smartmatic. The purpose is to implement a nationwide automation of elections in May 2010 pursuant to R.A. 8436 (Poll Modernization Act), as amended by R.A. 9369. But UP Law Professor Harry Roque and the Concerned Citizens Movement (petitioners in the case) questioned before the Supreme Court the validity of the contract on the following grounds: (1) lack of a pilot testing for automated elections; (2) validity of the joint venture between TIM and Smartmatic; (3) failure of the Precinct Count Optical Scans (PCOS) machines to meet accuracy requirements; and (4) abdication by Comelec of control over the electoral process.

Since the interpretation of section 5 of R.A. 8436, as amended by R.A. 9369, is the most contentious, I will limit my discussion on this issue. The pertinent provision reads as follows:

Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the [Comelec], x x x is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local elections, which shall be held immediately after the effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the [Comelec]: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented nationwide.
Interpreting the above provision (particularly the highlighted portion), the Court ruled that the requirement that in the regular elections to be conducted immediately after the effectivity of the law automation shall be conducted in at least two highly urbanized cities and two provinces each for Luzon, Vizayas and Mindanao is not an indispensable requirement for full automation in 2010. It is not a condition precedent or a condition sine qua non for full automation in 2010.

The majority refused to characterize said provision as "pilot testing." But as Chief Justice Puno observed in his separate opinion, the intent to test an automated election system (AES) is evident from the amended text of Sec. 5 of RA 8436. There is no rhyme or reason why Congress would mandate Comelec to use the AES first after effectivity of the amendatory law (RA 9369) in at least two highly urbanized cities and two provinces for each of the country's major islands if it were the intention not to pilot test. This is clear from the following statements of Senator Richard Gordon, cited by the chief justice, during deliberations on the automation law:

Mr. President, this is precisely why we are starting the automation in two provinces and two cities so that we do not take a big bite right away. And I accepted the amendment of the Minority Leader precisely because we want to make sure that the bite is sufficiently enough for us to be able to run the automation. . . . Now, the sample is only two provinces and two cities, Mr. President, so that we would be able to get a gauge.
Now I don't know what the words "to get a gauge" means, as used above, if not to test, check, determine or judge.

The Court determined that a pilot test is not necessary by saying that (1) the limited application of automation to two cities and provinces, as provided by Sec. 5 of RA 8436, refers only to the elections immediately succeeding the effectivity of the amendatory law (RA 9369), which is the 2007 elections and (2) by holding that the last sentence of Sec. 5, as amended, stands independently of the rest of the section. The last sentence of Sec. 5 states that "[in] succeeding regular national and local elections, the AES shall be implemented ." The majority views this provision as a mandate for full automation in 2010, regardless of the holding of a limited automation during the 2007 elections.

The following words of the chief justice in his separate concurring opinion are illuminating:

The respondents’ reading of Section 5 disregards the tenor of the entire provision. A rational reading of the entire provision will show that the different parts isolated and then interpreted by the respondents are connected by the conjunctions provided, that and provided, further that and provided, finally that. These conjunctions signify that the clauses that follow the conjunction are a pre-requisite or a condition to the fulfillment of the previous clause. The words provided, that mean the same as “as long as,” “in order that,” and “if only.” . . . In this light, Section 5 should be interpreted to mean that the COMELEC is authorized to use an AES as long as the following requisites are complied with: (1) for the regular national and local elections, which shall be held immediately after the effectivity of the Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao; (2) that local government units whose officials have been the subject of administrative charges within sixteen months prior to the May 14, 2007 elections shall not be chosen; and (3) that no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. And, when the above conditions are complied with, the AES shall be implemented nationwide in succeeding regular national and local elections.

As regards the last sentence of Sec. 5, this is what he said:

The last sentence of the provision which provides that “[i]n succeeding regular national or local elections, the AES shall be implemented nationwide” may appear as not connected to the enumeration of requirements for the use of an AES. But this does not mean that it can be read in isolation and independently from the rest of the provision. Section 5 expressly declares that the COMELEC's authority to use the AES on a nationwide scale is contingent on the prior conduct of partial automation in two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao.
But the chief justice, while recognizing the necessity of a pilot testing before full automation is implemented, stopped short by siding with the majority in holding that with the enactment of RA 9525 on March 5, 2009, which appropriated Php 11 billion for the 2010 elections, the pilot test requirement has been dispensed with. The argument is that it is the congressional intent in enacting RA 9525 to make way for full automation in 2010 despite the failure to implement a limited AES (two cities and two provinces automation) in May 2007.

The argument, however, of the petitioners is equally persuasive, if not more convincing. According to them RA 9525, particularly Sec. 2 thereof - as relied upon by respondents, has not impliedly repealed the pilot testing requirement of Sec. 5 of RA 8436, as amended, but in fact reinforces it as can be read from from the following proviso of Sec. 2: "the disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of Republic Act No. 9369 and other election laws . . ." In other words, the utilization of the funds allocated by RA 9525 for poll automation shall be made strictly in accordance with RA 9369. As already discussed, Sec. 5 of RA 8436, as amended by RA 9369, mandates the two cities and two provinces application first of an AES.

A rational reading of Sec. 5 of RA 8436 shows the unmistakable intention of the law to pilot test first the implementation of an AES by limiting it to at least two cities and two provinces each for Luzon, Visayas, and Mindanao. There is no other purpose that can be gleaned from said provision but to see first how automation can be carried out with limited application, before making it nationwide in scope. And this is but proper, considering that it will be the first time that automation will be carried out in the election of national and local officials.

Since the initial requirement for full automation has not been complied with in the 2007 elections, that does not mean the same rationale is no longer applicable. Now, if the pilot test required by law was not implemented in the 2007 elections for practical reasons (due to time and funding constraints), there is no reason why, for practical reasons also, that said testing cannot be implemented first in 2010 before we embark on full automation. To be sure, the limited application of AES madated after the effectivity of RA 9369 was not just inserted there by Congress for no reason at all. It was meant to pilot test automation first, plain and simple. To repeat, just because automation was not undertaken during the 2007 elections does not mean that the purpose behind a pilot test no longer applies.

Applying the pilot testing requirement of Sec. 5 of RA 8436, as amended by RA 9369, in the 2010 elections would not violate the law anymore than its non-application during the 2007 elections violated the law. On the contrary, it will serve and implement the clear intent of the law.

Wednesday, September 9, 2009

The Ball is Now in Noynoy's Hands

On August 25, 1975, a half hour before midnight, and from his dark and desolate prison cell in Fort Bonifacio, Ninoy Aquino typed his last words of advice and farewell - or so he thought it would be - to his son Noynoy. In the concluding portion of his letter, he said, "Son, the ball is now in your hands." Ninoy could not have probably thought then that his only son would blossom into a political leader and become the standard bearer of his party, but his letter finds as much relevance today as it did 34 years ago.

Ninoy apologized to Noynoy for not bequeathing him any material wealth. He was, however, proud to tell Noynoy that he will leave him an untarnished name that he will carry for the rest of his life - that is, if he himself does not tarnish it. Now that Noynoy has publicly declared his intention to run for the presidency, the Aquino legacy, which has been rekindled with the demise of Cory Aquino and anniversary of Ninoy's death, will prove most helpful. In fact, it was these momentous occasions that propelled Noynoy into the national spotlight.

But as Ninoy said, the ball is now in Noynoy's hands. The shadows of his parents will not stay for long; as the race deepens, Noynoy will have to prove his own mettle. It will become more and more his own fight where his own strength of character, resolve, charisma, and abilities would matter. To be sure, Noynoy will be compared with the fiery eloquence and brilliance of his father, and the disarming demeanor and charisma of his mother. And there can be no pretense that Noynoy possesses these outstanding qualities. But since Noynoy's supporters have found in him the symbol of unity and integrity in governance, they are willing to overlook these absent qualities for as long as Noynoy remains above reproach and humble in his abilities.

Noynoy may not have the fat resume of an accomplished legislator who have written volumes of beneficial legislations, but he brings to the table the integrity of his name and the guarantee that he will run a clean and honest government. There is the conventional wisdom in politics that a bad economy is bad for the current administration in the coming elections. That wisdom applies equally well when the current administration is wracked by corruption and abuses. The contender that promises a clean and honest government presents the most appealing alternative, as it did in 1986. This is the promise of Noynoy that is not seen on other presidential hopefuls - at least after Mar Roxas dropped his ambition.

For those who would question Noynoy's intellectual abilities and experience to run the country, suffice it to say that we have elected before an Erap Estrada and possibly a Fernando Poe, Jr. Noynoy will not exactly be clueless and wanting in academic credentials. He graduated from Ateneo with an economics degree and has served his district in Tarlac as congressman for three consecutive terms, aside from the fact that he is now an incumbent senator. He is, therefore, no stranger to politics and the operations of the government.

The call of the times, however, is not another bar topnotcher, seasoned politician or accomplished economist. The people are clamoring for someone who can bring back confidence to government and make it work for the people. The first one appears within reach by a Noynoy presidency, but the latter still remains to be seen. For now, however, given the current dispensation, the people appear poised to put their stake on someone who could bring the first objective.

Thursday, September 3, 2009

Why Don't You Sue Me in Court

Thus cavalierly challenged presidential son and Pampanga 2nd District Representative Mikey Arroyo in response to probes and criticisms about his questionable Statement of Assets, Liabilities and Net Worth (SALN). Such arrogance and blatant disregard of the meaning of public accountability by an elected government official is, of course, not something new. It is certainly not news, but definitely a cause for outrage by every citizen who stands against the excesses of officialdom.

A little review of our Constitution tells us that a public office is a public trust, and public officials must at all times be accountable to the people. From this lofty principle proceed all our laws on the conduct of public officials, such as the Code of Conduct and Ethical Standards for Public Officials and Employees, the Ombudsman Act, Anti-Graft and Corrupt Practices Act, provisions of the Revised Penal Code on crimes involving public officers, laws requiring public disclosure of officials' assets, law penalizing plunder, etc. A public officer, like Congressman Mikey Arroyo, holds a position of trust and the public is, as it were, his cestui que trust (the beneficiary of the trust). He acts solely for the benefit of the public he is sworn to serve. And every trusteee owes accountability to his beneficiary by being answerable for his conduct and acting with complete transparency.

Congressman Arroyo has a lot of explaining to do on his SALN, considering that his net worth skyrocketed from Php 5 million to Php 76.9 million in just a span of three years from 2002. His 2008 SALN shows that his net worth has reached Php 99 million. But instead of providing a clear explanation, he passes the buck to his lawyers and challenges anyone questioning him to sue in court. The public that reposed its trust on Congressman Arroyo deserves an answer; if he truly believes he did nothing wrong he should clarify the entries on his SALN, rather than pass the burden to the public. As former NEDA Secretary Winnie Monsod aptly said, it is he who owes the burden and is not for the public to prove whatever is wrong with his SALN.

Okay, Congressman Arroyo did say he is not yet versed in accomplishing a SALN when he was still a vice governor of Pampanga in 2002, thus apparently attributing the relatively small sum of his declared net worth in 2002 to an honest mistake. He also explained that his wealth increased due to campaign contributions, the gifts he received when he got married, and as a result of some investments. Regarding the Beachway house in California, which was not listed on his 2008 SALN, he said it is owned by a company (Beachway Park LLC) and he merely owns a stake in said company.

Let us see how these explanations can hold water. To be sure, everybody is entitled to make mistakes, but to say that one can forget the extent of his wealth - unless you are as extremely rich as Bill Gates or Warren Buffet - is beyond belief. How could Congressman Arroyo forget to include his other assets? To say that the ballooning of his assets from Php 5 million to Php 76 million was merely the result of failure to include his other assets due to inexperience would be outrageously ridiculous. How in the world can Php 71 million be forgotten? Okay, maybe I am exaggerating and this is not really the extent of the undeclared assets, but how about his claim that he was assisted by his - take note of the plural - lawyers. Is he telling us that his lawyers failed to get all relevant information from him or they forgot to include all his assets?

It gets even worse when Congressman Arroyo said his wealth increased due to campaign contributions and wedding gifts. Is he telling us that he did not use all his campaign contributions and instead pocketed the rest? I wonder what the congressman's donors will say. How much did he receive by way of campaign donations? Can the congressman stand firm on this claim when Comelec filings of his campaign contributions and expenditures are bared? How about the wedding gifts? Again, questions of propriety will arise here because if this is true we are not talking only of small amounts. We are talking in millions of pesos! How can someone amass a fortune through wedding gifts? If some of the donors are not relatives, as I'm sure there are, the receipt of such huge sums of money by a public official - regardless of the occasion - violates ethical and legal standards, considering that he was a public official when he received such gifts.

Congressman Arroyo would also like us to believe that he had some investments. But his 2008 SALN shows that the earliest investment he acquired was in 2006. How could such 2006 investments earn him P 71 million in 2005 or earlier?

Regarding the California property, the congressman claims it is owned by a company in which he holds an interest. A limited liability company, like a corporation in the Philippines, has a legal personality separate and distinct from its members. The implication is that the company's properties are technically not owned by the members. So he could probably be excused in not declaring the property as legally he does not directly own it. But as established by Vera Files, the group blogging site that exposed Congressman Arroyo's property, the house is in the name of the congressman's wife and their investigation into the records of California yielded no results for the company. The law requires properties in the name of spouses to be declared in the SALN as well, which Congressman Arroyo did not.

Given these implausible explanations, should the public be blamed for seeking more information and clarification? By not giving straight and clear answers - which Congressman Arroyo can do even without his lawyers and the courts, if truly he is not guilty of any wrongdoing - he is only fueling further doubts on his integrity.