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Philippine Daily Inquirer

12:47 AM | Wednesday, February 4th, 2015

The proposed Bangsamoro Basic Law (BBL), which is House Bill No. 4994 and Senate Bill No. 2408, is riddled with constitutional infirmities. No less than Rep. Rufus Rodriguez, chair of the House ad hoc committee on the BBL, has pledged to purge it of constitutional flaws.

Retired Supreme Court Justices Vicente Mendoza and Florentino Feliciano, both constitutionalists, have detailed before the Senate the BBL’s various provisions which are violative of the Constitution. The former even declared that the creation of a Bangsamoro substate could be a prelude to its secession from the republic.

The Philippine Constitution Association, whose president emeritus is former Chief Justice Reynato Puno, has debunked in a 74-page position paper the BBL as unconstitutional due to a litany of transgressions. The Catholic Bishops’ Conference of the Philippines has also warned that the BBL must not surrender the country’s territorial integrity.

The fatal infirmities of the BBL range from vesting the Bangsamoro with extraordinary powers that exclusively pertain to the national government, structural innovations that vitiate the presidential system, like the institution of the parliamentary setup in Bangsamoro, undue delegation of congressional prerogatives, and delimitation of the Supreme Court’s power of judicial review and appellate jurisdiction, to the duplication or even derogation of the authority of the constitutional commissions: the Commission on Elections, Commission on Audit, Civil Service Commission and Commission on Human Rights.

Yet what was underemphasized or overlooked is the mother of all constitutional infirmities: the projected abolition of the Autonomous Region in Muslim Mindanao, whose creation was ordained under the 1987 Constitution. The precipitate dismantling of the ARMM is being effected through the enactment of a mere statute (BBL) without a prior constitutional amendment authorizing the ARMM’s replacement by the Bangsamoro, a much more powerful entity not envisioned in the Constitution. More than all the other violations, this infraction is the original sin of the BBL. This places the cart before the horse.

Section 15 of Article 10 of the 1987 Constitution unequivocally provides that “[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras.” Section 18 mandates that “[t]he Congress shall enact an organic act for each autonomous region” and “[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose.” The immediacy of enacting the organic acts was underscored by the Constitution when it directed under Section 19 that “[t]he first Congress elected under the Constitution shall, within [18] months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.”

The 8th Congress enacted on Aug. 1, 1989, Republic Act No. 6734, titled “An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao,” following the parameters on the limited powers of the ARMM. This was ratified in a plebiscite on Nov. 17, 1989. After its ratification, the ARMM was elevated to a constitutional entity or institution which could not be abolished and replaced through an ordinary statute like the BBL. The supremacy of the Constitution bars its amendment by a statute.

There are only three modes of proposing amendments to the Constitution: by Congress sitting as a constituent assembly, by a constitutional convention, and by people’s initiative. To reiterate, a statute cannot amend the Constitution.

The premature abolition of the ARMM is indelible in the BBL. No less than its title reads: “An Act Providing for the Basic Law for the Bangsamoro and Abolishing the Autonomous Region in Muslim Mindanao, Repealing for the Purpose … Republic Act No. 6734, entitled ‘An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao.” Moreover, Section 5 of Article XVIII of the BBL provides: “Abolition of the ARMM.—Upon the ratification of this basic law, the Bangsamoro shall be deemed established, and the ARMM shall be deemed abolished.” Verily, the BBL incants the requiem for ARMM.

Nowhere in the Constitution is Congress authorized to abolish the ARMM and replace it with a formidable entity like the Bangsamoro. What the Constitution mandated was for Congress to enact the organic law for the ARMM. Since the enactment of the ARMM organic law is a constitutional mandate, the Congress is powerless to repeal this law without a prior constitutional amendment abolishing the ARMM and authorizing its replacement with another body.

This nonrepeal is an exception to the rule that Congress does not pass irrepealable laws because the enactment of the ARMM organic law was precisely ordained by the Constitution. The ARMM is constitutionally enshrined. It cannot be dethroned by ordinary legislation.

It is of no moment that the effectivity of the Bangsamoro depends on its ratification in a localized plebiscite. What is paramount is that the 1987 Constitution, which authorized the creation of ARMM, was ratified in a nationwide plebiscite. Consequently, the abolition of the ARMM must be preceded by a constitutional amendment ratified nationwide.

Congress cannot adopt the fatalistic attitude that anyway there is the Supreme Court that would act as the final arbiter on the constitutionality of the BBL. Congress must not saddle the high court with a manifestly infirm BBL. It must not also delude Filipino Muslims that Congress has done its task together with the President of enacting the BBL even as it is flawed.

Neither political expediency nor partisan accommodation is a viable anchorage for violating the Constitution.

Edcel C. Lagman is a former representative of the first district of Albay.

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Edcel C. Lagman

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Philippine Daily Inquirer

12:04 AM | Monday, January 26th, 2015

While there are no contraceptives for rabbits, for willing couples and women there are accessible and available legal contraceptives certified by the Food and Drug Administration under Section 9 of Republic Act No. 10354 (Responsible Parenthood and Reproductive Health Law).

Most people will continue to breed like rabbits, despite Pope Francis’ injunction, if they are denied or forbidden access to contraceptives. Regular abstinence and self-control are difficult disciplines to follow.

Fr. Ruben Tanseco, SJ, in a 2004 column,succinctly depicted the frailty of natural methods of family planning: “The poor are already deprived of so many things, and to deprive them of lovemaking when they spontaneously feel like doing so is to make their lives even more miserable.”

The enabling core of the RH Law is freedom of informed choice. No man or woman is compelled to use contraceptives. No religious dogma against modern contraception is defied. The option is wide open. Government will assist only those who have made their choice to contracept.

But even before the passage of the RH Law, countless Catholic couples and adherents had already chosen to use contraceptives to limit the number of their children. This fact is beyond debate.

The RH Law’s implementation will benefit those who have made their option clear, and will inform and educate those who have not. Implementation of the law is the challenging task ahead. Enforcement is the indispensable sequel to the RH advocates’ crusade.

There was no magic wand to effortlessly effectuate the RH advocacy when Congress approved the RH bill, when President Aquino signed it into law, and when the Supreme Court unanimously declared that on the whole the RH Law is constitutional.

The ultimate magic wand will only come when the RH Law is faithfully and expeditiously implemented. There is no foolproof potion for success. Achievement is the product of indomitable will, the result of steadfast commitment, the outcome of earnest collective effort. RH advocates have manifested such sterling qualities before, and they will show these once more to pursue the law’s implementation. And implementation will run the gamut of the three great branches—the legislative, the executive and the judiciary.

Congress must appropriate adequate amounts for the implementation and resist all attempts to dilute or repeal the law.

It is important to note that the General Appropriations Act of 2015 has a P3.27-billion allocation for family health and responsible parenting in the budget of the Department of Health. An amount of P132.82 million is in the budget of the Population Commission as provision for grants, subsidies and contribution in support of population programs.

The DOH also has a P5.52-billion allocation for a health facilities enhancement program, which includes birthing facilities and programs for maternal and infant health.

Unfortunately, neither the National Expenditure Program nor the GAA provides a specific amount for age-appropriate RH education for adolescents in private and public elementary and secondary schools. RH advocates in Malacañang and in Congress overlooked the importance of this funding. The solution is to source funds from the appropriations of the Department of Education.

The principal onus for the implementation of the RH Law is lodged on the executive branch, with the DOH as the lead agency, and also with the collaborating local government units that shall receive technical and financial assistance from the national government.

The creation of the National Implementation Team headed by former health secretary Espie Cabral, which will assist the DOH in implementing the RH Law, is opportune and necessary.

Also in focus is the indispensable role of the FDA, which has to complete and update its task of issuing recertifications and certifications of contraceptives that are not abortifacient. Medical studies consistently validate that contraceptives are not abortifacients.

The DOH, Department of Finance, and Department of Budget and Management must allocate and release the billions earmarked for public health, including RH, from the new sin tax revenues.

The executive branch, through the DOF, highlighted that the latest sin tax bill was a health, more than a revenue, measure. Accordingly, Section 8-C of RA 10351 unequivocally provides that after deducting the mandatory allocations, 80 percent of the remaining balance of the incremental revenue derived from the new Act shall go to universal healthcare under the National Health Insurance Program, the attainment of the Millennium Development Goals and health awareness programs, and 20 percent shall be allocated nationwide for medical assistance and health enhancement facilities program.

That provision necessarily includes allocations for RH because under the RH Law, there are RH complications covered for free by PhilHealth; the MDGs include improvement of maternal health, reduction of infant mortality and universal family planning; and health enhancement facilities programs likewise include RH.

Perforce, there must be actual appropriations for health from the sin tax revenues—not mere attributions, as was done in the past.

In the event cases are filed in court, including the Supreme Court, petitioners are reminded that the high court has spoken that the RH Law is constitutional, except for a few provisions that are mostly related to penalties and protection of minority views. It is expected that the high court will maintain its previous adjudication.

After an arduous 13-year crusade to enact the RH Law, no time must be wasted for its full implementation. Alacrity in enforcement must compensate for the inordinate delay in its passage.

While rabbits will never learn to contracept, people appreciate the import of reproductive self-determination.

Edcel C. Lagman is a former representative of the first district of Albay.

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4:16 AM | Wednesday, January 21st, 2015

The primacy of free speech

Edcel C. Lagman

Article 133 of the Revised Penal Code is an archaic provision that is anathema to a constitutional democracy and a secular society. It infringes on the freedom of expression which is accorded primacy among the people’s rights. As the Supreme Court held in Chavez vs. Gonzales (Feb. 15, 2008), the freedom of speech “is an indispensable condition for nearly every other form of freedom.”

The challenged penal provision reads: Article 133. Offending the religious feelings. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful.

Verily, Article 133 is prior restraint on free speech. It forbids a citizen from expressing views which purported offended parties would subjectively consider “notoriously offensive to the feelings of the faithful.” This is vastly different from the victim’s objectively ascertainable death in murder, bodily infliction in physical injuries, damage to property in arson, or even a damaged reputation in libel.

In Article 133, the proscription of an act under pain of penalty is a veritable prior censorship or restraint on the freedom of expression because one is foreclosed from expressing his opinion or forced to fossilize his thought on a public issue that demands articulation.

What the Constitution protects is more than docile and conventional speech. It truly safeguards controversial and provocative views which challenge audiences.

In Terminiello vs. City of Chicago (1949), it was ruled that the function of free speech “is to invite dispute… Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

Likewise, in Chavez vs. Gonzales it was held that “[t]o be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view ‘induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’”

There was global outrage over the desecration of the freedom of expression in the aftermath of the terror assault in Paris against the editors and cartoonists of Charlie Hebdo.

The caricature of Prophet Mohammad is widely considered seriously offensive to the religious feelings of Muslims, but the world community, including Muslim leaders, consider the controversial lampoons as protected freedom of expression.

“We strongly condemn this brutal and cowardly attack and reiterate our repudiation of any such assault on freedom of speech, even speech that mocks faiths and religious figures,” said the Counsel on American-Islamic Relations, the largest Muslim civil rights organization in the United States.

Israeli Prime Minister Benjamin Netanyahu called the barbaric incident “a murderous attack on free expression.”

The All Dulles Area Muslim Society in Sterling, Virginia, one of the region’s largest mosques, issued a statement that “[a]s Muslims, we encourage responsible speech and reject hate speech in any form, but we firmly believe that all speech, even if mocking and satirical, and even if deeply offensive, should and must be protected.”

Charlie Hebdo finds affinity in the case of Carlos Celdran, who has been convicted, albeit not finally, of violating Article 133. His alleged crime is that in an ecumenical program at Manila Cathedral, he displayed a placard on which was written the word “Damaso,” a reference to a fictional friar in Rizal’s “Noli Me Tangere” who embodied the priests’ dalliance with local maidens and interference in secular affairs of friars.

The information against Celdran reads in full: “That on or about Sept. 30, 2010, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully, and feloniously disrespect, disregard and offended feelings of various religious leaders in the persons of Cardinal Gaudencio Rosales, Papal Nuncio, Ambassador de Villa, and other leaders of different Christian denominations, by then, and there displaying a placard/board bearing the word “Damaso,” while ecumenical service was going on inside the Manila Cathedral Church, Intramuros, which notoriously offended the feelings of the faithful, represented by Msgr. Nestor Cerbo y Cerda, Rector of the Manila Cathedral Church, Intramuros, this City.”

Aside from alleging Celdran’s display of the “Damaso” placard, no other “inculpatory” act was attributed to him in the information. Incidentally, the “offended” religious leaders mentioned in the information, Cardinal Rosales, Papal Nuncio Edward Joseph Adams, Ambassador Henrietta de Villa and Monsignor Cerbo did not testify for the prosecution. They must have realized that Celdran’s advocacy for modern-day Filipino priests and bishops to shun the sordid reputation of Padre Damaso is a reform shibboleth which does not ridicule or castigate, but on the contrary challenges, even elevates.

Celdran’s act was neither an insult to any religious faith nor notoriously offensive to the feelings of the faithful. He was not attacking any religion or dogma. His mission was to challenge clerics to reform themselves by not embracing the importuning of Padre Damaso. This is absolutely protected free speech. Its articulation cannot be subject to prior restraint or subsequent penalty. The liberating mantle of freedom of expression must not be tainted by the obscurantism and unconstitutionality of Article 133.

Edcel C. Lagman is a former representative of the first district of Albay.

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Way back in October 2011, when I was the minority leader of the House of Representatives, I exhorted my co-lawmakers in both the House and the Senate not to adopt a variation of the constituent assembly wherein proposals to amend or revise the Constitution would be made through the ordinary legislative process. I felt that the “innovation” was simply flawed, a mongrel bereft of pedigree under the Charter.

Without first convening Congress into a constituent assembly, this skewed variation has again surfaced in “Resolution of Both Houses No. 01.” The resolution proposes to add the phrase “Unless otherwise provided by law” to the following economic provisions mandating preferential ownership for Filipinos:

(a) exploration, development and utilization of natural resources (paragraph 1, Section 2, Article XII on “National Patrimony and Economy”);(b) ownership of alienable lands of the public domain (par. 1, Sec. 3, Article XII); (c) conveyance or transfer of private lands (Sec. 7, Art. XII); (d) investments in certain restricted areas (par. 1, Sec. 10, Art. XII); (e) operation of public utilities (Sec. 11, Art. XII); (f) ownership of educational institutions, other than those established by religious groups and missions boards (No. 2, Sec. 4, Article XV on “Education, Science and Technology, Arts, Culture and Sports”); and (g) ownership and management of mass media and advertising (Sec. 11, Nos. (1) and (2), Article XV on “General Provisions”).

Resolution of Both Houses No. 01 is being debated in the House of Representatives as a regular legislative measure before its transmission to the Senate for concurrence. This procedure is a mongrelized “constituent assembly.”

A Constitution is the supreme handiwork of the sovereign people who ratify it. Although constitutional provisions are not etched in stone, proposals to amend or revise any provision of the Charter cannot be done with facility and alacrity. The Constitution itself provides for the limited modes of effecting Charter change.

The 1935 and 1973 constitutions provided for a constituent assembly or a constitutional convention as alternative modes of initiating Charter amendments. The 1987 Constitution added a third mode—people’s initiative. Therefore, a mere legislative act of Congress, be it a statute or a joint resolution, cannot validly propose a constitutional amendment simply because ordinary legislation is not one of the modes.

Section 1(1) of Article XVII of the 1987 Constitution—which provides that “Any amendment to, or revision of, this Constitution may be proposed by (1) the Congress, upon a vote of three-fourths of all its Members”—solely refers to Congress sitting as a constituent assembly, not Congress sitting as a legislative body. A liberal application of this provision, that is, enfranchising Congress as a legislative body to propose constitutional amendments, is flawed and untenable for the following reasons:

(1) Proposing constitutional amendments is an exercise of constituent power. Perforce, Congress must meet as a constituent assembly to validate any proposed amendment.

(2) The errant interpretation justifying the ordinary legislative process as a legitimate mode for Charter change defies established precedents: Congress in 1957, 1966-1967 and 1969, as well as the Batasan Pambansa in 1980-1984, proposed constitutional amendments as a constituent assembly; and more recently, resolutions were filed for Congress to meet as a constituent assembly.

(3) It obliterates the clear distinction between the legislative power of Congress and its constituent authority.

The Supreme Court as early as Nov. 9, 1967, in Gonzales vs Comelec (21 SCRA 774), made an unequivocal distinction between legislative power exercised by Congress and the constituent authority discharged by it as a constituent assembly when it ruled that:

“Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress XXX Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not as Members of Congress, but as component elements of a constituent assembly.”

Gonzales was reiterated in Tolentino vs Comelec (41 SCRA 702). Indeed, making use of the ordinary legislative process as an alternative format for a constituent assembly is infirm.

Aside from the procedural infirmity of the resolution, the wisdom of a wholesale grant of congressional power to liberalize or “alienize” the economic provisions is questionable because:

(1) The congressional blanket authority to alter, delimit or altogether delete by law or statute the preferential quantum of ownership reserved to Filipinos is improvident, considering that Congress is a partisan body that is more susceptible to the importuning of vested interests.

(2) The safeguarding of our posterity, the citizenship requirement in land ownership and in the exploration and utilization of strategic natural resources, and the insulation of public utilities, the educational system, media and advertising enterprises from alien control are salutary constitutional provisions which must be maintained.

(3) Foreign investors do not prioritize the liberalization of the economic provisions; in fact foreign investments continue to flow in, given the favorable environment of adequate infrastructure, improved peace and order, predictability and consistency of domestic economic policies, and a vigorous campaign against corrupt practices which deplete foreign capital.

It is very obvious, “Resolution of Both Houses No. 01” is defective in procedure and deficient in merit.

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Edcel C. Lagman is a former representative of the first district of Albay.