Some Thoughts on Morality

Have you ever wondered why there is such a thing as right and wrong? I’m sure you did. But I bet, you never bothered to inquire further much less visit the nearest library and do some philosophical or religious readings. “Why bother, It’s not worth my time” a friend of mine said. Then he continued, this time with a pragmatic and ringing response, “From where I sit brod, the idea could have been implanted in my head since I was born.” I was initially taken aback by his answer. I told myself he was supposed to be inquisitive if not a skeptic like me. I should know this for a fact. For several times, I had engaged in a heated cockfight with him way back in law school. It took me a while to realize that, like his indecisive response, his Catholic faith too suffers from the same foundational cracks. At that precise moment, all I can do was to sympathize with him. I felt sad because I have known him as a devout Catholic and a spirited defender of faith. Yet, when his reasons on faith are put to stringent test, I can obviously see the inconvenient irony. Like a mentos candy, his faith appears to be solid and cool on the outside but breaking down inside. Pardon the pun, but I can think of no better analogy than this. Well, for a time aren’t we all? I will not try to second guess your response if the question is presented before you. Tough issues on faith and life are not the most convenient topic to be talk about in coffee shops or dinner tables. They are often viewed as utterly boring and anticlimactic. In fact, when I raise this issue in one of our drinking sessions, a drinking buddy of mine pounded on the table and said, “Pare, what are you talking about, aren’t we suppose to have fun? Yes, alcohol and faith are not perfect buddies. At least, I got the point this time.

In the philosophical arena, when a well-informed atheist wants to argue that God does not exist or that He is simply a pigment of our imagination, the arguments appear to be so convoluted for anyone bereft of philosophical consciousness on the topic. I find it frustrating when Christians shy away with these kinds of intellectual objections. And to make it more candid, a typical Christian will respond by saying, “God forgives you bother” or that “I rebuke you in the name of Jesus!” BAM! That goes straight to my stomach. Pathetic isn’t it? My point here is simple. As Charles Colson puts it, “The Bible commands us to take every thought captive to the obedience of Christ. If we fail, we will find it increasingly difficult to present the gospel and we will lose influence in the culture.” In my essay entitled, “Why I am still a Christian” I dealt with the existential aspect of faith and reason to support my Christian beliefs. I narrated in part my supposed intellectual doubts on the meaning of life, the origin of morality and ultimately, the existence of God. By way of conclusion, I encourage the readers that it is perfectly normal to encounter doubts and objections if only to strengthen their Christian faith. Through doubts we continuously pursue the truth.

Going back to my friend in law school, what does he mean when he said that “the idea could have been implanted in my head since I was born”? Seen in the philosophical context, his response raises two possible assumptions. He seems to accept that there is some kind of a moral standard from which to distinguish right from wrong. But am I suppose to infer based on his response that that he posits a moral law giver, that is God as the source or revealer of that moral standard? Or can morality exist apart from God? The problem however is not as simple as these two assumptions.Time and again, philosophers and defenders of faith wrestled with this question. The usual old-age arguments for or against God’s existence could be summed up in four major points; (1) the argument from (or to) design, (2) the first cause argument, (3) the argument of morality, and (4) the existence of evil. Of these philosophical arguments, I find the case for morality as the most persuasive evidence to prove the existence of a deity. Not because it is the easiest one amongst the usual objections, but my preference has something to do with my own existential and philosophical journey.

In discussing morality, one cannot simply set aside God in the picture. God as the utmost revealer of right and wrong, provides us with a moral point of reference or a starting point from which to establish our meaning and purpose in life.To put it more bluntly, without Him, everything in this world is meaningless. My point then is this. If God is not in the picture in terms of defining what morality is, what then could be our moral framework from which to distinguish right from wrong? The impact of a Godless society is of course terrifying and very dangerous. How then can Adolf Hitler justify his horrible actions when he exterminated the Jews during the World War II? Or that of Josef Stalin, when he masterminded the large-scale murder of his own people? Were they appealing to some sort of a moral justification for their actions? The answer is yes. This is where the term morality becomes a free-for-all concept for everyone to enjoy. Now then, what could be the moral point of reference for saying that the Holocaust was a moral act? Hitler and Stalin as masters of their own fate clearly subscribed to the atheist worldview-the absence of belief in the existence of God. They deplore Christian theism and religion in general, as something that hampers human progress. Nietzsche for instance viewed religion as the nadir of human progress because it elevated such concepts as morality, repentance, and humility. To him, we cannot build a civilization of power based on these Christian virtues. Now how about that as an objective moral criterion? Logically, having no point of moral reference (except perhaps Nietzsche idea of civilization) to arrive in an objective moral standard, Hitler and Stalin decided to invent their own system of right and wrong. A system to be determined solely on the basis of personal taste or individual preference. Russian novelist Fyodor Dostoevsky was right when he said that without God everything is permissible. One does not have to be a rocket scientist to discern the ramifications of a Godless society. Without God, we cannot have objective moral guidelines to follow. What we have is a purely subjective discernment on where to distinguish right from wrong.

Now, lest I be accused of bias, let us assume for the sake of argument that God is not an essential element in determining right and wrong. Otherwise stated, take out God in the picture and see if we could at least have an objective standard for morality.

In his magnum opus Critique of Pure Reason, philosopher Immanuel Kant attempted to justify a system of right and wrong solely based on the power of reason. Simply put, a moral framework conceived apart from God. In Can Man Live Without God, renowned Christian apologist Dr.Ravi Zacharias simplified Kant’s two simple theses to support his proposition in this manner; First, he asserted that the rules of morality were rational and hence compelling for all rational beings…His foundational premise was clearly and without equivocation that human beings could arrive by unaided reason at a normative dictum for right and wrong. Second, he believed that mankind had within itself the capacity to perform that “ought” in its most noble demands upon the will. Therefore by our reason we can know what is right, and by our will we can do what is right. Under the first, the implication is clear: since the purported rules of morality are in essence reasonable, it is but proper for men as rational beings to follow such rules. The second however is a bit thorny when viewed philosophically. Like any other philosophical theories, Kant’s assertions have several consequent assumptions. It seemed that Kant had the illusion that man is basically good. And that man had an inherent capacity to distinguish right from wrong at first sight using pure reason alone as its basis. As correctly pointed out by Dr. Zacharias, in order to build a reasonable and coherent ethical theory, one must first establish the telos or the purpose and destiny of human life. To Christians, the so called telos is easier to find for there can only be one source of a man’s purpose and destiny in life, and that is God as the revealer of right and wrong. Now, non-believers may raise the argument on the need to establish initially the “purpose” and “destiny” in order to become moral in the theistic sense. The answer is a bit simple: one must have at least a valid starting point or a moral point of reference for one to discern an objective moral standard. That “ought” discernable by men as pointed out by Kant, was the same “ought” which prompted Hitler to exterminate the Jews en masse. That fateful event in human history was the logical consequence of a moral standard structured upon pure reason coupled with man’s desire to play God. The point I wish to make here is this, without the telos centered upon the character of God, any ethical theory will eventually lead to man’s destruction. I can see no point of commonality here, what we see are purely whimsical and subjective moral standards for everyone. What may be reasonable and moral for Hitler may not be reasonable for Mother Teresa isn’t it? In one of the gas ovens in Auschwitz, Hitler's words were inscribed-I want to raise a generation of young people devoid of conscience, imperious, relentless and cruel. Now how about that for a moral point of reference? Are we supposed to trust our own reasons here in determining what morality is? These are some intriguing questions that even Christians must consider in sperading the word of God to non-believers and ultimately to the atheists.

And so to my good friend, it has been my ardent wish that you will find time to read this article so you may be able to position your faith in the right direction. While I do not claim philosophical or intellectual superiority in this writing, but my point is crystal clear: the idea of morality points only to one direction as its primary source and that is God. Kant was right when he said that “man is a rational being.” In the same way, I dare say we Christians too are rational believers of God and followers of Christ. Let us converse about our Christian faith and defend God against intellectual or philosophical objections because in the end we are in fact honoring God as the ultimate source of man's wisdom. Make no mistake about this.

Note:
I highly encourage everyone to read Dr.Ravi Zacharias' critically acclaimed book Can Man Live Without God. This marvelous book basically "interrupted my philosophical slumber" as a Christian. I urge you to do the same.

Among Ed and the State

Alas, the messiah has spoken! Last Tuesday Pampanga Gov. Eddie “Among Ed” Panlilio has declared his intention to join the 2010 presidential race after hearing God’s voice. To begin with, as fellow believer in Christ I will not question the validity of his claim nor question the authenticity of the “voice” as one coming from heaven. But let me separate my ecclesiastical thoughts for the moment and offer a few secular observations concerning Among Ed’s controversial statement. Reading between the lines, what I’m trying to say is this; a mixture of politics and religion is a dangerous precedent in any body politic. At least that is what my history book says. In the realm of politics even the most despicable aspirant for power can recite scriptures or can freely claim that he is the duly anointed one much less a statement coming from a saintly character like Among Ed. Even the “little girl” from Malacanang claimed, to a certain extent, that her presidency is but a product of divine intervention. Yes, like Among Ed she also received divine instructions and no one dared to challenge her to prove the veracity of his statement. Nonetheless, I will dispense my political analysis on this issue. My utmost concern has something to do with the legal separation of two major institutions in our society, the Church and State, as commanded by no less than the Constitution.

While I highly welcome Among Ed’s decision to run for the presidency for the May 2010election, there is however one thing I would like to clarify with his upcoming presidential bid. For all intents and purposes, Among Ed has not technically abandoned priesthood even while serving as governor of Pampanga. In fact, he can regain his stint as a priest had he lost the local election. I’m not quite sure this time what will be the position of Among Ed owing to the fact that he will be eyeing for the highest position of the land. In an interview, Among Ed said that he would formally request for dispensation from the Church upon filing his certificate of candidacy. Nonetheless, he was quick to reiterate that he would want to go back to priesthood should he lose in his presidential bid. Seen on its face, the statement of Among Ed can be confusing if not deceiving. Priest-on-leave or not, he is still a priest. The Church on the other hand seems to play the political cards too close to its chest. In refusing to endorse the candidacy of Among Ed it does not however give a clear and decisive statement on his membership on the clergy. I may be wrong in all this, but if Among Ed wins the presidency, it will also mean one thing-a silent victory for the Catholic Church. I urge the Church to do something about this to erase any doubts concerning Among Ed’s candidacy.

Under Canon Law, priests are not generally allowed to participate in partisan politics or hold public offices involving the exercise of civil powers. But from the looks of it, this prohibition is more of an exception rather than the rule. To be clear, the soundness of this rule is not entirely our concern, let the politically potent CBCP or the feisty Archbishop Oscar Cruz handle this problem. My pressing question however is this: If there is indeed a Canon law violation when clerics hold public offices, does it necessarily follow that there is a constitutional breach? In other words, will there be a violation of the separation of Church and State principle if Among Ed will eventually become the next president of the Republic? I will try to answer this question to the best of my knowledge on the rudiments of constitutional law.

The Constitution by way of a general principle says that, “The separation of Church and State shall be inviolable.” Furthermore Article III, Section 5 enunciates that, “No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof.” (Also known as the "non-establishment clause.") The idea behind this principle is best explained by Justice Isagani A. Cruz in this wise, “The rationale of the rule is summed up in the familiar saying, “Strong fences make good neighbors.” The idea is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective jurisdictions. The demarcation line calls on the entities to render therefore unto Caesar the things that are Caesar’s and unto God the things that are God’s.” The rationale behind this principle is too obvious, a merger between the church and state tends to destroy government and degrade religion. This does not mean however that both institutions must treat each other with hostility. In fact, the Constitution itself recognizes the beneficial aspects of religion to promote the well-being of its citizens and the nation as a whole. Unlike our preceding constitutions, the Preamble of the 1987 Constitution uses the phrase, “imploring the aid of the almighty God,” to be more consistent with Filipino religiosity. Tax exemptions are also given on properties used directly and exclusively for religious purposes. The Church on the other hand, openly participates on various political and civil issues affecting the government. The Church, especially in our country, has always been on the frontline of our political history and has somehow directed the course of the ship of state.

But then again the Constitution marks the thin line between these two key institutions. If you will examine the wordings of the constitutional provisions, the thrust of the principle is strictly geared towards the State and not the Church. Conversely, the provision on the separation of Church and State is a limitation directed upon the State and it’s institutions-primarily the government. The provision on the Bill of Rights for instance, cautions the State not to pass laws which will otherwise favor one religion over the other. Certainly, who has the power to pass laws, the Church or the State? Obviously, it is the State as represented by its legislative organs mainly, Congress and to a certain extent, the local legislative bodies. On historical angle, under the Spanish regime, the Church was clearly empowered to perform acts or issue directives which have the force of law. Now, the civil powers have been reverted back to the state. At any rate, the rule under constitutional law is clear; the state must always remain neutral in its dealings with various religions. Moreover, the inclusion of the “non-establishment clause” in the Bill of Rights elevates the principle of separation of Church and State in the same category with other constitutional precepts such as the due process clause, the rights of the accused, freedom of expression and many more. What then is this the clear import of this analysis? Apparently, in one sense these constitutional rights protect individuals against the vast and intrusive powers of the State. In another sense, the constitution strictly limits the awesome powers of the state in relation with individuals. Thus, while the State can legislate anything and everything under the sun, it cannot however pass laws which run contrary to the limitations set forth in the Bill of Rights like the “non-establishment clause.”

In view of this staid disquisition, the desire of the venerable Among Ed to run for the presidency while ethically challenged (as explained above), the same may be constitutionally defensible. It has always been my burden to offer a sensible explanation whenever friends raise the billion dollar constitutional question on church and politics. Can the church endorse the candidacy of Among Ed or perhaps Bro. Eddie Villanueva? To this, my usual answer would be a resounding yes. Certainly, the Church just like any secular organization can freely participate in the “marketplace of ideas” especially on matters of public concern like presidential election. The wall of separation does not preclude the church to exercise constitutional guarantee of free speech and expression and the right to petition the government for the redress of grievances. The more difficult question though is when a churchman decides to run for public office. Worse, what if he wins the election and thereby assumes the public position? In the 2004 presidential election, Bro. Eddie Villanueva of the Jesus Is Lord church joined the presidential race but miserably failed. In my hometown Zamboanga, an amiable priest tried his luck for the mayoralty post against a more experienced and prominent candidate in the parochial political arena. Like Among Ed, he too heard the voice from heaven. Unfortunately, the churchman failed to muster enough votes and lost his mayoralty bid fair and square. The candidacy of Among Ed as governor of Pampanga in the 2007 local election relatively changed the face of Philippine politics. Consequently, he became the first ever Filipino priest to sit in public office. And because of this major turning point, no one dared to lift a finger questioning the legality of Among Ed’s assumption as governor of Pampanga. But still, the billion dollar question remains unsettled. Nonetheless, the participation of "churchmen-politicians" in the political arena indicates the need for alternative “apolitical” candidates other than the traditional players during elections. And in doing so, the supposed high wall which separates the church and the state remain intact, at least in the constitutional sense.

As mentioned earlier, my concern is not focused on Among Ed’s preoccupation to aspire and perhaps even to lead the nation as the highest official of the land. But here’s a thought, what is constitutional is not necessarily moral. Personally, I have nothing against Among Ed if he really wishes to introduce genuine political reforms in our country, we should all be grateful about that. But that is not the issue here. With this piece, I challenge the Catholic Church to strip naked Among Ed’s sotana the moment he files his certificate of candidacy for the presidency. The Catholic Church certainly has the sole authority, whether on the basis of Canon law or any religious dogma to rule on Among Ed’s case. Frankly, I know nothing about church discipline or church tribunal procedures applicable to churchman like Among Ed. I trust that the Church will exercise prudential judgment on this matter. As for Among Ed, will it be priesthood or politics? Either way, it’s all or nothing. Take your pick father!

REFERENCES:
The 1987 Constitution: A Commentary by Fr. Joaquin G. Bernas
Constitutional Law by Justice Isagani A. Cruz
The 1987 Constitution

THE POWER THAT LIES IN THE LITTLE GIRL'S HANDS

There is a talk going around recently that because of several bombing incidents in some parts of Mindanao the “little girl” (If I may use the phrase of my constitutional law professor.) from Malacanang might impose martial law in no time. The charge, according to news reports is that the President is out to use the bombing incidents in Mindanao and the heightened alert in the metropolis to declare a state of national emergency. From there, it will eventually lead to the declaration of martial law. What is the catch then? Well, I think what the opposition is trying to say is that by declaring martial law the President can stay in power beyond her term. Surely if this will happen, we will be facing a “No-El” scenario come May 2010. The administration however strongly denied this speculation claiming that this is just another propaganda spearheaded by the opposition to cast the President once more in a bad light. In a press interview, Secretary Remonde assured the public that the government can solve the bombings without declaring martial law. I’m sure they can, but are we suppose to trust Arroyo administration nowadays following the Conass fiasco? I think not. Call me a pessimist, but this administration has an unusual hobby of tinkering with the constitution not only once but many times! Personally, like my conviction against the notorious HR 1109, I am not inclined to give this administration the benefit of the doubt on this issue as well.

Propaganda or not, the clear import of all this is for us to examine the constitutional safeguards in place whenever the “Commander-in-chief” so decides to declare martial law under the auspices of the 1987 Constitution.

History tells us that our country had such a tragic experience with martial law. In fact, the mere mentioning of the term alone may be enough to cause alarm and fear to the sensibilities of every Filipino. Like the name “Voldermort” in the Harry Potter series, martial law also has its share of evil and horrible connotations in our country. But one may ask, if martial law is such an evil concept in Philippine history, why did the framers of the 1987 Constitution sought to retain this power in the hands of a robust “Commander-in-chief”? Why not scrap it altogether and bury it for good? To these questions, a sneak glimpse on the essentials of martial law in the context of American constitutionalism is fitting

Martial law is essentially founded upon the police power of the state. Joking aside, what is being referred to here is not the power vested with the police force or the PNP. Obviously, this has something to do with one of the inherent powers of the state. To be clear, the textual definition of police power is that, “power vested in the legislature by the constitution to make and establish all manner of wholesome and reasonable laws…as they shall be the judge to be for the good and welfare of the state and of the subjects of the same.” The idea of martial law is to protect “public safety” against invasion or rebellion which in essence, is one of the concerns of police power. The difference however is that while police power is ordinarily lodged with the legislature (meaning the law making bodies of the state), martial law powers had been placed in the hands of the President as the Commander-in-chief of the armed forces. In his recent Philippine Daily Inquirer column entitled “What is martial law?”, Fr. Joaquin G. Bernas has this observation, “What is peculiar about martial law as police power, however, is that, whereas police power is normally a function of the legislature executed by the civilian executive arm, under martial law, police power is exercised by the executive with the aid of the military and in place of “certain governmental agencies which for the time being are unable to cope with existing conditions in a locality which remains subject to the sovereignty.”

The September 21, 1972 declaration via Proclamation 1081 issued by then President Ferdinand Marcos was “technically” based on the 1935 Constitution. Back then, there was no specific jurisprudence (decided cases by the Supreme Court) on martial law. Thus, the martial law provision in the 1935 document was to be commonly understood in line with the American concept as to what martial law is in the strictest sense. According to a noted American law professor, martial law was an instrument for insuring public safety in times of emergency and for protecting the continuance of normal civil government. The clear implications from this traditional view would have to be first, martial law was not meant to be a substitute for civil government. Second, it was never meant to supersede law. And lastly, it neither calls for the suspension of constitutional rights. These were the inherent restrictions directed upon the administrator of martial law as commonly understood at least in the context of American constitutionalism. Significantly, this concept had been impliedly incorporated in the martial law provision under the 1935 Constitution.

What happened under the Marcos regime was a total deviation from the normal route to attain the martial law objective-“public safety” whenever the state is threatened by invasion or rebellion. To accomplish the purported “objectives” of the Sept. 21 declaration, President Marcos as the martial law administrator, armed himself with extensive powers by exercising legislative powers as well. In a blink of an eye, the theory behind the vitality of martial law as “state self-protection measure” had been put to a stringent test like never before. The draconian decrees issued by the President were later affirmed (in short, the court legitimized the actions of President Marcos.) by the Supreme Court as necessary measures to attain the objectives of the Sept. 21 declaration.

For these reasons, though martial law is often viewed as a monstrous power to be avoided, it likewise has its noble and necessary objectives to preserve law and order. Having learned from the lessons of history, the framers thought it wise to retain this power under the 1987 Constitution, but not without expressed restrictions and safeguards unlike the previous constitutions.

The salient provision on the “Commander-chief-powers” of the President is excessively long. Without a doubt, the new commander-in-chief provision is one of the outstanding features of the 1987 Constitution. Under said provision, while the original authority to declare martial law rest on the Executive branch, there is however an explicit command for checks and balances to achieve the desired result. As will be seen later, the Congress and the Supreme Court have significant roles to play when the nation is under the clutches of martial rule.

The power to declare martial law flows from the “Commander-in-chief” powers of the president. By virtue of Section 18 of Article VII of the 1987 Constitution, the president is bestowed with a sequence of graduated powers from the most to the least benign. The most benign power refers to the “Calling-out power” of the President. Thus, “whenever it becomes necessary” he (President) may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. But what will happen if in the exercise of the “Calling-out power” the President fails to suppress the existence of lawless violence or prevent an impending invasion or rebellion? Faced with this kind of situation, the President can now resort to the least benign powers in his commander-in-chief arsenal to quell any actual invasion or rebellion against the state.

These two extraordinary powers are; (1) the power to suspend the privilege of the writ of habeas corpus or (2) place the entire country or any part thereof under martial law. Unlike the “calling-out power,” the grounds for the proclamation of martial law are at best limited. Thus, the constitution is unequivocal when it states that, there must be an actual invasion or rebellion and “when the public safety requires it.” The initial determination whether there is an actual invasion or rebellion will have to be decided by the President as the Commander-in-chief. But the story does not end there. After the proclamation, the President will now have to persuade Congress on the soundness of his actions. At this point, the 1987 Constitution clearly delineates the participation of Congress to check on the possible abuses of power by the chief executive when acting as Commander-in-chief.

As mentioned earlier, the new commander-in-chief provision under the 1987 Constitution is quite long. Nonetheless let us capture the gist on the extent of the President’s military powers, the martial law provision in particular.

After the initial determination on the existence of an actual invasion or rebellion, when the public safety requires it, the President can now place the country or any part thereof under martial law. The duration of such proclamation shall not exceed sixty (60) days otherwise it shall be automatically lifted. Within forty-eight (48) hours following said proclamation, the President is obligated to submit a report, whether in person or in writing, to the Congress. If not in session, owing to the urgency of the situation, Congress must convene within 24 hours without need of a call. And in that regular or special session, Congress by a majority vote of all its members and voting jointly, may either revoke said proclamation or upon the initiative of the President, extend the period of the proclamation. By this time, it is Congress who will determine the duration of the proclamation depending on the persistence of the invasion or rebellion and when public safety calls for such extension.

From the wordings of the 1987 Constitution you can easily discern the intent of the framers when they drafted the Commander-in-chief provision-a recognition of the separation of powers principle. Both the President and Congress must agree to a certain extent that there is indeed a factual basis for the declaration of martial law. To which, as may be seen later, the Supreme Court in the exercise of judicial review can validly inquire and if found wanting, it will not hesitate to make the hammer fall and heavily! If you will observe, although the President has the sole power to declare martial law under the constitution, Congress may revoke said proclamation and it cannot be set aside by the President. In the same manner, Congress cannot extend the period of martial law motu propio, the initiative must always come from the President as the Commander-in-chief. In simple parlance, there is an inherent “give and take” relationship between the two co-equal departments of government in order to safeguard the power structure envisioned in the constitution.

Given the above discussion, in the end the buck stops with the Judicial branch mainly, the Supreme Court. Let us examine then the function of the Supreme Court under the new rule.

On historical note, Marcos Supreme Court in the case of Aquino v. Enrile had put an imprimatur on the legitimacy of the Sept. 21 proclamation. That infamous case drastically modified the original scope and effects of martial law as embodied in the 1935 Constitution. Now, all of these are purely of historical and academic value because of the new provisions in the 1987 Constitution abandoning the doctrine laid down in the Aquino case

As the bastion of the rights and liberties of the people, the Supreme Court also has an indispensable role especially in times of national crisis. Par. 3 of Section 18 Article 7 of the 1987 Constitution says, “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty (30) days from its filing.” Before the birth of the 1987 Constitution, the power of the court to review the “determination” or “judgment” of the President as Commander-in-chief was a constitutional “no-no”-a clear violation of the time-honored principle of separation of powers. It is often viewed as a forbidden territory of the courts. Now this is no longer the rule. Although traditionally a “political question,” the 1987 Constitution has clearly abandoned this rule in favor of a much libertarian approach by making it a justiciable controversy. Hence, any citizen can now question the sufficiency of the factual basis of the martial law proclamation.

It should be borne in mind that mere proclamation of martial law does not automatically suspend the privilege of the writ of habeas corpus much less the operation of the constitution. During the state of martial law, civil courts and legislative bodies shall remain open. In line with this, military courts and agencies are not conferred jurisdiction over civilians where the civil courts are functioning. The suspension of the privilege of the writ of habeas corpus shall only apply to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. Remarkably, any person arrested for such offenses must be judicially charged within three (3) days otherwise he shall be released.

I will not consider myself as a feisty critic of Gloria Arroyo’s administration. I prefer to deal with the legal or constitutional issues surrounding her stint as the President of the Republic. Time and again, I deplore whenever this administration preach “good governance” or “public welfare” at the expense of the fundamental law. That “unusual hobby” or “baka kc makalusot” mentality shows how public servants visualize the rule of law to suit their preoccupation. If you will observe, both the Conass issues and the martial law “speculation” have a common denominator-perpetuation of political power. Indeed, absolute power corrupts absolutely! In any case, we should be sensitive and vigilant enough to protect our fundamental law against those who wishes to hold power in perpetuity.

I just hope that the awesome power that lies in the little girl's hand will be utilized under highly extreme situations as envisioned in the constitution. Given her fetish for power, I wonder if she will ever make the coup de grace on this issue. Abangan!

More on the stupidity of HR 1109

In my recent article entitled “It takes two to Cha-cha: The stupidity of HR 1109,” I must say that I ventured into the realm of the unusual. And why is that? For one, I am elated because I got favorable reviews from conscientious citizens who are too passionate in expressing their disgust against the notorious HR 1109. However, like any other masterpiece, we cannot but avoid dissenting views from the cynics and also from legal minded critics. For this, I am constrained to respond by expounding a little more on my arguments and theories surrounding the constitutional implications of HR 1109. To be clear, the arguments are “anticipatory” in nature because a case has yet to be filed in the Supreme Court to clarify the various interpretations on the pertinent constitutional provisions on amendments and revision. To be sure this is not a futile academic exercise. In fact, by discussing the constitutional aspects of HR 1109, we will in effect expose the stupidity of those Congressmen who voted to adopt this worthless piece of trash.

To begin, I must admit that there is no such thing as a watertight interpretation to the 1987 Constitution, the provision on the amendatory process in particular. More often than not, owing to the fact that most of its provisions are ambiguous, we are inclined to poke holes in every provision of the constitution to suit our current disposition. This is what the proponents have in mind when they ventured to propose amendments to the 1987 Constitution via HR 1109 calling for a unicameral constituent assembly.

Again, in my recent article I echoed initially the position taken by the esteemed Fr. Joaquin G. Bernas of the Ateneo Law School. And to make it more staid and understandable, I expounded and stretched the arguments a little more.

In that article, I took the position that the “three-fourths” vote requirement under Article XVII section 1 pertains to the proposal for amendments or revision made by Congress when acting as a constituent assembly. The Constitution but sets an explicit limitation when it comes to the manner of approving the proposal on constitutional amendments, this is where the three-fourths vote comes into play. This is contrary to the view that the three-fourths vote refers to the manner of convening the constituent assembly. Unlike the present Constitution, a different rule is required under the 1935 Constitution before Congress can act as a constituent assembly. The 1935 Constitution says,”The Congress in joint session assembled, by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately may propose amendments to this Constitution or call a convention for that purpose.” Under said provision, a congressional resolution passed by both houses calling for a joint session is necessary before Congress can act as a constituent assembly. But this was before of course. As presently worded, the 1987 Constitution is explicit when it enunciates that, “Any amendment to or revision of, this Constitution may be proposed by: (1) The Congress, upon the vote of three-fourths of all its members…” Believe it or not, the Congress as it now sits is already a constituent assembly.

On personal note, my brother (who by the way is a lawyer and a staunch advocate of the Constitution) corrected me when I said that by virtue of Article XVII Congress automatically converts itself into a constitutional assembly. To him, the House and the Senate is a perpetual constitutional assembly. I shall grant him that because actually there is no conflict with regard to our respective positions. I totally agree with him but I used the automatic conversion theory merely to distinguish constituent functions under Article XVII (Amendments and Revision) from legislative functions under Article VI (The Legislative Department). For non lawyers, these dual functions of Congress can be confusing because by way of a general rule Congress is tasked mainly to enact laws, thus the need for a distinction.

Nonetheless, let us be clear on this matter. It is my position that until and unless Congress decides to act pursuant to Article XVII, the functions of a constituent assembly remains completely dormant. Article XVII is the constitutional provision which activates the functions and powers attached to a constituent assembly. And so, when the House unilaterally adopted HR 1109 seeking to convene Congress as a constituent assembly, that to me is a useless and futile exercise. (At least in the constitutional sense) What may be unconstitutional is the fact that said resolution allows both Houses to vote jointly in the manner of proposing amendments. Here, we will now be talking about the function of Congress when acting as a constituent assembly. As Fr. Bernas opined, “The question that must be asked is not how Congress becomes a constituent assembly, but rather how Congress must function when acting as a constituent assembly.” In other words, when Congress functions as a constituent assembly, must they convene in joint or separate session? In addition, must they vote separately or jointly?

As I have said in my previous article, it would be more consistent with the bicameral structure of Congress that both Houses must convene in a joint session but voting separately. Thus; “In view of all this, I therefore subscribe to the view of Fr. Bernas that to be consistent with the bicameral structure of Congress, the “three-fourths vote of all its members” must be interpreted to mean three-fourths of all members of each house voting separately…As to the question whether the House and the Senate should convene jointly or in separate sessions, I think it is best that both Houses must cross swords with each other face to face. Take note that what is at stake here is not ordinary legislation but amendments to the Constitution. Although the Constitution does not command a joint session in the manner of proposing amendments, neither is there a prohibition for them to do otherwise. In any case Congress certainly has the discretionary power to set its own internal rules as an independent branch of the government”

Admittedly, the separate voting formula is in line with the position taken by Fr. Bernas which to me is the more practical and logical solution to the present controversy.

I am not unaware of the generally valid argument that if we follow the position of Fr. Bernas in the procedure of proposing amendments (separate session and voting separately), in effect we will be reducing the amendatory process into an ordinary legislation. Obviously, the amendatory process is far more delicate and momentous endeavor because we are dealing here with the very source of governmental authority, the Constitution. Logically we can never equate the value of the Constitution with an ordinary legislation. For one, unlike ordinary legislation which requires the only the approval of the President, amendments to the Constitution requires the participation of the electorate for ratification in a plebiscite. Again, the question ultimately boils down to the purposes for having a bicameral legislative body in the 1987 Constitution. Among the traditional arguments for bicameralism is the fact that it allows for a more cautious or careful study of legislation. Thus, as I said before, “two heads are better than one.” Indeed bicameralism means two houses, the House and the Senate, acting independently and occasionally checking each other. Theoretically, the purpose behind all of this is for them to craft quality legislation.

By espousing a joint session but voting separately in the amendatory process, the purpose is ultimately the same, the quality of the proposed amendments to the Constitution. If it works with ordinary legislation, what could be the possible reason for it not to apply to the amendatory process? To my mind there is none. As I said before, a proposal partakes to the nature of a “recommendation.” It is the sovereign people who will have their last say on whether to approve or reject the proposed amendments. Moreover, if we put a premium to ordinary legislation by having separate session and separate voting, the more reason it should apply to proposed amendments because of its significant impact in the lives of our people and to the stability of the nation as a whole.

As I mentioned in my recent article, the theory behind HR 1109 is a result of a distorted interpretation on the amendatory process as envisioned in the 1987 Constitution. I was kind enough to categorize it as an “outrageous” interpretation. On second thought however, I will now call it as an “out of this world” constitutional construction both in essence and in substance. If these recalcitrant Congressmen of ours refuse to heed to the clamor of the street parliament, it is best to arm the public with adequate knowledge so that they may have a solid fulcrum to express their opposition. I just wish that these issues will be settled once and for all by the Supreme Court and let the record reflect for posterity how stupid HR 1109 is. Nuff said for now.