(This is the text of the paper I delivered at the 19th International Law and Religion Symposium, Brigham Young University, 7-9 October
2012. This presentation is based on the upcoming article Philippine Social Issues
and the Constitutional Response to Natural Law)
The
Philippines is faced with several social issues that have gained an intensity
not seen in the past. In so many ways, the issues have exposed the fact of a
Philippines very divided as to its beliefs and values. Trying to combine a
society composed of numerous islands, different languages, cultures, religions,
races, and even political beliefs, the Philippines faces itself with presenting
compromises but at the same time unsure of whether a uniform rule necessary for
the citizens of a country could be applied.
Thus,
the context for the heated debates on contraception, divorce, and same-sex
marriage, all framed within the continuing argument on the proper role of
religion in relation to affairs of state.
What is ironic is that in
predominantly Catholic Philippines, all this debate will come within the
purview of the Year of Faith. October 11th marks its beginning, the
Catholic Church embarking on through 23 November 2013. That day commemorates
two great anniversaries in church history. The first is the 50th anniversary of
the opening of the Second Vatican Council and the second is the 20th anniversary
of the promulgation of the Catechism of the Catholic Church. Pope
Benedict XVI explains the need a Year of Faith: "Ever since the start of
my ministry as Successor of Peter, I have spoken of the need to rediscover the
journey of faith so as to shed ever clearer light on the joy and renewed
enthusiasm of the encounter with Christ" (Apostolic Letter, Porta Fidei,
2).
In
any event, in recent days, one can see in the public sphere increasing mention
of the necessary role of religion in public life, as well as the referral to
natural law as the basis for certain positions. Thus, Philippine Bishop (for
Antipolo) Gabriel Reyes would declare in his Defense of the Stand of the
Catholic Bishops’ Conference of the Philippines on the House Bill 4244:
“It is also good to point out that the church teaching regarding
contraceptives is not based on Faith or revelation, although it is confirmed by
our Faith. This church teaching is based on natural law, which we know through
natural reason. By studying through correct reasoning the nature of the human
person, we arrive at this teaching regarding contraception. All human beings,
Catholic or not, are obliged to act according to right reason. By the efforts
of the Church to go against the RH Bill, the Church is not imposing her
religious beliefs on others. She is trying to stop a bill which is against
natural law, a law which all human beings, Catholic or not, should follow. The
RH Bill, judged from the principles of natural law, is against the good of the
human person and the common good. The Congregation for the Doctrine of the
Faith in its “Doctrinal Note regarding the Participation of Catholics in
Political Life” tells us that all citizens, including Catholics, have the right
“to base their contribution to society and political life – through the
legitimate means available to everyone in a democracy – on their particular
understanding of the human person and the common good.” In a democracy, any
group of citizens has the right to campaign and lobby so that what they consider
to be good for the country are enacted into law and what they deem to be
harmful for the country are not enacted into law.”
This
statement would subsequently be criticized, notably by a respected
constitutionalist and former law dean, as well as by another legal commentator
tasked with the training of judges in relation to legal philosophy.[1] In the end, the exchanges again merely reveal the deep divide within
the country regarding the various issues facing it, as well as the proper
conceptualization of Church and State separation. However, the exchange also
revealed the need for further understanding of the role that natural law plays
within the Philippine legal system.
This
paper will try to explore, at least introductorily, how natural law worked within
Philippine legal history, and how the same can play a role in resolving present
and future social disputes.
A. Return
of natural law
Natural
law[2] is an objective standard of right and wrong that any human being can
arrive at through the independent use of right reason. Murder, theft, adultery,
for example, are all objectively wrong, for which no circumstance can make
right (acts done in self-defense or cultures that accept polygamous marriages
are to be differentiated from murder or adultery). Such acts will always be
wrong regardless of whether you are Muslim, Christian, agnostic, or atheist. Or
American, Arab, Polynesian, or Asian. The objective standard of natural law is
distinct, however, from the so-called subjective culpability (as well as the
issue of conscience), which need not be taken up here.
As
explained by Martin Rhonheimer:[3] “Because man is by nature a reasonable being, there exists also a law
of reason, which are acts ordered by his practical reason in which man
distinguishes good and evil, feeling himself bound to do the good, based on the
rational understanding of what is good for man. This function of practical
reason, natural in man, constitutes therefore a natural law.”
As
can be seen in the response to Bishop Reyes, the accusation was that the Church
merely sought to “impose” Catholic doctrines on the rest of the country and
make others follow their own concept of morality. In a “pluralistic society”,
so it is said, we should respect each other’s beliefs and not impose our own
beliefs on others. Such contentions, however, are unfortunately misleading.
It
must be emphasized, that natural law is not an exclusive Catholic concept,
owing a lot in fact to Aristotle. For him, there is an objective moral order
which human reason can figure out. Our free will, on the other hand, allows us
to recognize that order or ignore it in favor of our passions or emotion. For
those who disagree that there is a natural law, they would have to logically
disregard the existence of such objective moral order. Which would then result,
as explained by Robert P. George, in accepting a world where there is no
“built-in, objective reason for me to choose one goal over another”, the goals
of Gandhi would now be of the same weight as the goals of Hitler. One
Philippine legal commentator, Jorge Coquia, would even declare that: "Most
who reject the validity of natural law claim themselves as 'liberal' or
'progressive'. But in its essence, it is a reaction and an easy road to
totalitarianism". Even before St. Aquinas discussed the subject, Aristotle
and Cicero had thought about it, then Hobbes and Kant and such other
philosophers. The Maturidi, a school of Sunni theology, declares that "the
human mind could know of the existence of God and the major forms of ‘good’ and
‘evil’ without the help of revelation." This is illustrated by its
proscription on stealing, murder, and adultery.
The
pluralism of society must be based on reason and coherence. While indeed we should all respect other’s
beliefs, it has to be accepted that to do so would not make those beliefs
necessarily correct. To those saying that "nobody has the right to impose
one's morality on others," they have to recognize that every law imposes a
morality. The only question is which one to impose. Any law that purports to be
free of morals is still a law imposing its own kind of morals.
Interestingly enough, a substantial
number of Philippine academicians seem to have been entranced with John Rawls
idea of “plurality” and “public reason”. However, the response here is that
Rawls concept of plurality is so constructed ("unreasonably narrow"
in fact, according to George) as to exclude religious arguments and heavily
favor liberal advocacies such as abortion and same sex marriage. Furthermore,
while Rawls' plurality does make a pitch for public reason, his concept of
"public reason" (see Rachael Patterson's critique, as an example) is
so, well, "unreasonable" or ambiguous, as such that it becomes
impracticable. In any event, we must not also confuse plurality, as well as the
need for tolerance and respect for others' belief into actually thinking that it
will magically transform all of our individual beliefs to be all correct. To
tolerate and respect the belief of others will not necessitate us agreeing to
such others' belief.
A short word on “tolerance”: “The root
meaning of the word [tolerance] suggests what the virtue involves. The Latin tol-
is related to a group of words having to do with carrying a burden: German dulden,
to be patient, to endure; Old English tholian, to suffer; Latin tuli,
I have borne. When we tolerate we bear with someone or something; we
bear the existence of a wrong. We do so because, given the
circumstances, to protest would invite a greater wrong. There is a time for
public correction, and a time for quiet endurance and, if the opportunity
arises, private correction.” (Tolerance and reciprocity, Professor Anthony
Esolen, Public Discourse)
In
any event, as can be seen later, natural law has actually always played a
constant, albeit unfortunately subdued, part in Philippine legal history. And
therefore its history at large. Even more unfortunately, natural law is
practically a forgotten part of our legal education. Most legal scholars here
probably would rather have it conveniently ignored. Partly from a fondness for
Oliver Wendell Holmes (as a substantial number of our law professors were
brought up appreciating the contributions of Oliver Wendell Holmes in legal
thinking, particularly his quite popular essay The Path of the Law) but more
likely from the prevailing academic fashion of secularism, legal positivism, realism,
or relativism, natural law has been pushed to the side. But to allow such would
render baseless the Filipinos quests for independence against foreigners, the
civil disobedience movement during the Marcos years, and the subsequent People
Power Revolutions.
Holmes’
position on natural law demands review, particularly his assertion that "the
life of the law has not been logic, it has been experience." For
experience is but a tool to uncover the principles that we seek. Holmes himself
would be found inadvertently contradicting his famous dictum in his other
writings. And John Austin's definition of law, which most of us lawyers
memorized by heart ("law is a rule of human conduct promulgated by
competent authority ...") is incomplete. Otherwise, everybody should have
unquestionably obeyed the Marcos, Estrada, or Arroyo governments. Or even
Hitler. Finally, to criticize natural law by saying that there are no absolutes
is a self-defeating argument because to say there are no absolutes is itself
relying on an absolutism.
The
prevailing rejection by most local lawyers of natural law is also ironic when
one considers the heavy reliance that our legal tradition has on the same. The
most recent significant example of which is the Supreme Court's ruling in Estrada
vs. Escritor, which tolerated non-application of the law on the basis of
"sincere religious belief." The ruling recognizes the "religious
nature of Filipinos" and the "elevating influence of religion in
society." As the Supreme Court declared: "man stands accountable to
an authority higher than the State." More on this case will be discussed
below.
Indeed,
the foregoing ruling should be no surprise to Filipino lawyers considering that
natural law strongly runs through the vein of the Constitution. While focus is
on Articles II and III of the Constitution (i.e., the non-impairment clause,
taken wrongly as separation of Church and State, for which more accurately
non-discrimination against any religion was intended), it must also be
remembered that the very first sentence of our Constitution actually contains a
fervent appeal to an objective higher “judge”: “We, the sovereign Filipino
people, imploring the aid of Almighty God …” The Constitution goes on to
enumerate instances of adherence to natural law: from “truth”, the proscription
against aggressive war, the preservation of the family, to taking care of the
environment. The Constitution’s reliance on natural law, of course, is most
strongly seen in the Bill of Rights.
Nevertheless,
the difficulty regarding natural law has been illustrated by Murray Rothbard, as
follows: "In the controversy over man’s nature, and over the broader and
more controversial concept of 'natural law,' both sides have repeatedly
proclaimed that natural law and theology are inextricably intertwined. As a
result, many champions of natural law, in scientific or philosophic circles,
have gravely weakened their case by implying that rational, philosophical
methods alone cannot establish such law: that theological faith is necessary to
maintain the concept. On the other hand, the opponents of natural law have
gleefully agreed; since faith in the supernatural is deemed necessary to belief
in natural law, the latter concept must be tossed out of scientific, secular
discourse, and be consigned to the arcane sphere of the divine studies. In
consequence, the idea of a natural law founded on reason and rational inquiry
has been virtually lost. The believer in a rationally established natural law
must, then, face the hostility of both camps: the one group sensing in this
position an antagonism toward religion; and the other group suspecting that God
and mysticism are being slipped in by the back door."
This would lead some natural law
commentators to devise ways in viewing natural law in a manner that would not
find it necessary to make reference to God. As Hugo Grotius’ famous formulation
puts it, natural law “would maintain its objective validity even if we should
assume the impossible, that there is no God or that he does not care for human
affairs.” Robert George would put a modern twist on that, saying of natural law
that it invokes “no authority beyond the authority of reason itself”. Natural
law thinkers would therefore divide themselves on whether or not there is a
need to rely on God: the Neo-Thomists would form a sophisticated revival of
St. Thomas Aquinas’ thinking and the “new” natural law or the “analytical”
natural law theory, which emphasized practical knowledge over that of
speculative knowledge, particularly as to nature.
In
any event, the question is: if indeed natural law has played a continuous part
in Philippine legal history, what natural law is being referred to? If mention
was made of a “higher law” (as was the case in Estrada vs. Escritor), was such
a reference to natural law or to divine law? If the former, would that take the
form of the neo-Thomist strand of natural law thinking or that instead of the
“new” or the “analytical” natural law as enunciated by Grisez and Finnis? If
the latter, would that mean that it can be argued that such religious beliefs
trump constitutional prerogatives? Or can it mean that such higher law would
merely form part of the array of constitutional rights spread out in the
Constitution?
B. Philippine constitutional law and natural law
The first
constitution that can be referred to as a “Philippine” fundamental law is that
of the Malolos Constitution (enacted 20 January 1899). A cursory glance at the
key provisions in the Malolos Constitution[4] shows the
fact that the revolutionaries, as can be seen from the preamble, subscribes to
the notion of Divine Law as being an active existing phenomenon, hence the use
of the term ‘Sovereign Legislator of the Universe’ as opposed to the more
passive idea connoted by terms such as ‘Divine Providence’ used in subsequent
constitutions. Further, the constitution also recognizes the existence of
fundamental or natural rights which belong to humans, whether they be
enumerated by positive law or not. Finally, it appears that the founders
subscribed to the notion of equality and freedom of religions.
Skipped
over were the so-called Code of Kalantiaw and the Code of Maragtas for the
reason that they have definitively proven by a scholarly research that both
were the product of nationalist attempts at revisionism. Nevertheless, they do
provide an interesting glimpse of the impressions of what such rules or codes
may be at those times. And a reading of the provisions of the supposed ‘codes’
themselves would see a heavy emphasis placed on the sacredness of various
religious provisions conforming to the animist Filipino belief systems of the
period. Noteworthy are the penalties, which appear to resemble those of the
barbaric times of the ancient world in its excessive use of capital punishment.
It is fairly easy to state that there is no vestige of natural or divine law in
force or even in mind during this time, except perhaps what may be deemed as
the law of ‘Bathala’.
The
1935 Constitution would see in its preamble an invocation to a “Divine
Providence” and the same would go for the Ferdinand Marcos’ 1973 constitution.
The post-Marcos constitution (1987) would take a more overtly religious tone,
as can be seen from the preamble, the Declaration of State Policies and
Principles, the Bill of Rights, the Provisions on Social Justice, and the
Section on the Family:
“PREAMBLE
We, the sovereign Filipino people,
imploring the aid of Almighty God, in order to build a just and humane society,
and establish a Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and secure to ourselves
and our posterity, the blessings of independence and democracy under the rule
of law and a regime of truth, justice, freedom, love, equality, and peace, do
ordain and promulgate this Constitution.
ARTICLE II
DECLARATION OF PRINCIPLES AND STATE POLICIES PRINCIPLES
Section 5. The maintenance of
peace and order, the protection of life, liberty, and property, and promotion
of the general welfare are essential for the enjoyment by all the people of the
blessings of democracy.
Section 6. The separation of
Church and State shall be inviolable.
Section 9. The State
shall promote a just and dynamic social order that will ensure the prosperity
and independence of the nation and free the people from poverty through
policies that provide adequate social services, promote full employment, a
rising standard of living, and an improved quality of life for all.
Section 10. The State
shall promote social justice in all phases of national development.
Section 11. The State
values the dignity of every human person and guarantees full respect for human
rights.
Section 14. The State
recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men.
Section 18. The State
affirms labor as a primary social economic force. It shall protect the rights
of workers and promote their welfare.
ARTICLE III
BILL OF RIGHTS
Section 1. No person
shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.”
Section 5. No law
shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political rights.
Section 12 (2) No
torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.”
The above cited provisions themselves demonstrate the
rationale and the principles which underlie the constitutional principles in
the Philippines, which are mainly centered on the freedom of will or volition
of man in a democracy, something which at least one Philippine Supreme Court Justice
(e.g., Malcolm) believes was granted to man by his Creator. This line of
thought would go on to other provisions of the Constitution, such as Article
XII (National Economy and Patrimony), Article XIII (Social Justice and Human
Rights), Article XIV (Education, Science and Technology, Arts, Culture and
Sports), and Article XV (The Family). As can be seen, “human
dignity” receives a much more heightened emphasis in the 1987 Constitution than
it does in the previous ones, and this is also clearly evident in the fact that
the declaration of Principles and State Policies is very much longer in the
1987 version than its predecessors. Among other things, the recognition of the
social functions of property and the existence of the family as a social
institution inviolable and free from intervention by the State acknowledges
that there are some institutions which existed and continue to exist prior to
the state’s recognition of them.
The
thinking found in past and present Constitutions would find echo in the Civil
Code as well[5]. As the
Code Commission pointed out:
“But, it may be
asked, would not this proposed article obliterate the boundary line between
morality and law? The answer is that, in the last analysis every good law draws
its breadth of life from morals, from those principles which are written in
words of fire in the conscience of Man. If this premise is admitted, then the
proposed rule is a prudent earnest of justice in the face of the impossibility
of enumerating, one by one, all wrongs which cause damage. When it is reflected
that while codes of law and statutes have changed from age to age, the
conscience of man has remained fixed to its ancient moorings, one can not feel
that it is safe and salutary to transmute, as far as may be, moral norms into
legal rules, thus imparting to every legal system that enduring quality which
ought to be one of its superlative attributes.”[6]
The Code
Commission Report elaborates on the rationale for the inclusion of Articles 19,
20, and 21 in the New Civil Code for what constitutes the Abuse of Right
Doctrine. Evidently, and as can be easily seen, the Civil Code provisions are
rooted firmly on a natural law grounding. This is even clearer from the
reference to something fixed to ‘ancient moorings’, and thus clearly beyond the
pale of positive law, and yet representing an attempt to enshrine natural law
into a statute. Notably, there is also Article 1423: “Obligations are civil or natural. Civil obligations give
a right of action to compel their performance. Natural obligations, not being
based on positive law but on equity and natural law, do not grant a right of
action to enforce their performance, but after voluntary fulfillment by the
obligor, they authorize the retention of what has been delivered or rendered by
reason thereof.” Interestingly, however, it does not appear to explicitly
state which obligations are natural, excepting those such obligations for
support, the fundamental right and duty of parents to care for their children,
etc.
In
judicial declarations, the concepts of “higher law”, “divine law, “natural law”
would be repeatedly seen. Thus, in In
re testate estate of Narciso A. Padilla, the Supreme Court would be discussing
that ancient maxim roughly translated as ‘according to the laws of
nature, it is just that no one should be enriched by the detriment and injury
of another’. This appears to be the grounding principle for the Civil Code
provisions regarding actions for relief against unjust enrichment.
In the Moncado case (1948), Justice Perfecto would be seen making this
interesting discussion: “Reason is a fundamental characteristic of
man. There is no greater miracle than when its first sparks scintillated in the
mind of a child. What before had only the vegetative life of a plant or the
animal life of a mollusk or frog, suddenly begins to wield the prodigious power
of understanding and intelligent grasping of the meaning and relations of the
things with which he is in direct or remote contact though his senses. The
power of understanding brings forth the freedom of choice. This freedom
develops the faculty of discrimination between good and evil. That
discrimination is further developed into a sense of justice.” Justice
Perfecto’s is probably the most eloquent to discuss principles of natural law
at that time. Quite clearly he elucidates on his perspectives on natural law
and its applicability to the case at bar and he does this with marked
consistency even in later decisions which he has rendered.[7]
Other
cases of note are Anastacio Laurel (1947), where Justice Hilado discussed the
fact that the field of international law is not as defined as that of municipal
law, and yet goes on to find that a war of aggression will find no support in
either natural or positive law; Primitivo Ansay (1960), where the Supreme Court
expounds on the interpretation of the above-cited provision in the New Civil
Code, and definitively states that its basis is not, in fact, positive law as
may be assumed, but is in fact based solely based on principles of equity and
natural law; Philippine Commercial and Industrial Bank (1982), where the Supreme
Court explained that the preferential provisions of the Labor Code are not
grounded entirely on principles of State Policy, but rather also on such things
as a universal sense of human justice, which furthermore partakes of the divine,
a reference to higher law; De La Llana (1982), where Justice Fernando points
out the interesting perspective that judicial decisions are essentially created
out of two things: the knowledge of the law, and the judge’s own conscience, as
God himself has given to him to understand. Following this reasoning, natural
law plays an obvious part, although not necessarily overtly.
Interestingly,
considering the quite less subtle referral to “God” in the 1987 Constitution, the heavier emphasis on natural law in
Philippine jurisprudence comes mainly from the Post-war period and earlier.
Afterwards sees a decline (at least in terms quantitative rather than
qualitative) in the cognizance and application of natural law.
Certain
cases of note are the Marquino case (1994), where the Supreme Court elaborates on the basis for the granting of
vested property rights, and that these ultimately originate from natural law in
reason, which is true even to the extent that they must be protected against
the powers of the State itself, thus implying the rights are vested, but not by
the State, and the Marcoleta case (2009), where Justice Carpio Morales makes
the rather unfortunate opinion that, although there is a
divine wisdom which establishes the perception of right and wrong in man,
ultimately in the legal system, positive law must prevail. How controlling this
opinion is must be seen in light of even more recent cases on the matter, which
actually more extensively discusses the nature of natural law.
There
is the case of Republic vs Sandiganbayan (2003), where Justice Puno’s extensive
discussion on natural law reveals the Thomistic character of his thinking, as
well as a further enumeration of where natural law played a part in
jurisprudence.[8] There is also the Uniwide Sales Realty and Resources Corporation
(2006), where the Supreme Court made reference to one of the few statutory
provisions (i.e., as previously mentioned, the Civil Code) expressly referring
to a natural law.
However,
it is the most recent and most quoted case of Estrada vs. Escritor (2006), that
makes the quite oft-repeated statement that man stands “accountable to an
authority higher than the State.” Justice Puno again maintains that man, as
ever, will always subscribe to the principles of divine and natural law; and
that at times these principles will sometimes clash with – and perhaps even
override – those of the State. Nevertheless, as in Republic vs Sandiganbayan,
it is the Dissenting Opinion that is of interest. In Estrada vs. Escritor, it
is the dissent by Justice Ynares-Santiago:
“With due respect, I
am unable to agree with the finding of the majority that "in this
particular case and under these particular circumstances, respondent Escritor’s
conjugal arrangement does not constitute disgraceful and immoral conduct"
and its decision to dismiss the administrative complaint filed by petitioner
against respondent Soledad S. Escritor.
The issue in this
case is simple. What is the meaning or standard of "disgraceful and
immoral conduct" to be applied by the Supreme Court in disciplinary cases
involving court personnel?
The degree of
morality required of every employee or official in the public service has been
consistently high. The rules are particularly strict when the respondent is a
Judge or a court employee.1
Even where the Court has viewed certain cases with human understanding and
compassion, it has insisted that no untoward conduct involving public officers
should be left without proper and commensurate sanction. The compassion is
shown through relatively light penalties. Never, however, has this Court
justified, condoned, or blessed the continuation of an adulterous or illicit
relationship such as the one in this case, after the same has been brought to
its attention.
Is it time to adopt a
more liberal approach, a more "modern" view and a more permissive
pragmatism which allow adulterous or illicit relations to continue provided the
job performance of the court employee concerned is not affected and the place
and order in the workplace are not compromised? When does private morality
involving a court employee become a matter of public concern?
The Civil Service Law
punishes public officers and employees for disgraceful and immoral conduct.
Whether an act is immoral within the meaning of the statute is not to be
determined by respondent’s concept of morality. The law provides the standard;
the offense is complete if respondent intended to perform, and did in fact
perform, the act which it condemns.
The ascertainment of
what is moral or immoral calls for the discovery of contemporary community
standards. For those in the service of the Government, provisions of law and
court precedents also have to be considered. The task is elusive.
The layman’s definition of what is
"moral" pertains to excellence of character or disposition. It
relates to the distinction between right and wrong; virtue and vice; ethical
praise or blame. Moral law refers to the body of requirements in conformity to
which virtuous action consists. Applied to persons, it is conformity to the
rules of morality, being virtuous with regards to moral conduct.
That which is not
consistent with or not conforming to moral law, opposed to or violating
morality, and now, more often, morally evil or impure, is immoral. Immoral is
the state of not being virtuous with regard to sexual conduct.
The term begs the
definition. Hence, anything contrary to the standards of moral conduct is
immoral. A grossly immoral act must be so corrupt and false as to constitute a
criminal act or so unprincipled as to be reprehensible to a high degree.
Anything plainly evil
or dissolute is, of course, unchangingly immoral. However, at the fringes or
boundary limits of what is morally acceptable and what is unacceptably wrong,
the concept of immorality tends to shift according to circumstances of time,
person, and place. When a case involving the concept of immorality comes to
court, the applicable provisions of law and jurisprudence take center stage.
Those who choose to
tolerate the situation where a man and a woman separated from their legitimate
spouses decide to live together in an "ideal" and yet unlawful union
state – or more specifically, those who argue that respondent’s cohabiting with
a man married to another woman is not something which is willful, flagrant, or
shameless – show a moral indifference to the opinion of the good and
respectable members of the community in a manner prejudicial to the public
service.”
Justice
Ynares-Santiago’s seeming perspective is that there are several “standards” of
morality to be applied when cases such as this are at issue: A ‘modern’
permissive, and flexible standard, and a permanent or timeless standard of
morality. Unable to subscribe to the majority opinion which prefers modernity
and liberality, preference is shown to refer to an unchanging morality, devoid
of the moral relativism of cultures.
C.
Political statements, natural or not
Inaugural
speeches and other such political declarations do not necessarily constitute
legally binding documents or contain a normative character. However, their
value of being indicative of the people’s values that the leaders are tasked to
reflect would be of import when judging or evaluating legislation or the merit
of a judicial determination. Whether one goes to the extent of a Dworkian view
of law or at least finding (or attempting to find) more apt descriptions of
“public morals” as is normally found, particularly in the Civil Code, then a
short discussion on such political statements are included here.
The
acknowledged “Brains of the Philippine Revolution”, lawyer Apolinario Mabini
has in his Decalogue[9] a powerful natural law influence, despite its frequent mention of God.
In addition, it appears Mabini’s perspective is that the ability to discern
between good and evil is found in the conscience of Man, but is a product both
of God’s providing him discernment and imposing upon him an obligation, as well
as the product of his own reason. Thus, the perfection humanity seems to
require needs the application of reason for its attainment, as seen by the line
(albeit admittedly melodramatic) desiring to make the Philippines a “Kingdom of
Reason and Justice”.
Interestingly,
the Philippines’ national hero, Jose Rizal, in his Prospectus for a ‘Colegio
Moderno’, recommended that natural law be taught so as to “form and educate young
men of good family and means in accordance with the demands of modern times and
circumstances.” Rizal’s draft curriculum for what he believed
would be the essential ‘Modern College’ included education on natural Law to be
absolutely mandatory for everyone.[10]
Aguinaldo’s
inaugural address[11] seems to have a significant natural law theme to it, particularly in
light of the fact that the address itself is quite short and most of the
paragraphs contain some form of reference to it. His mention of ‘just and wise
precepts’ to which we owe ‘blind obedience’ seems to have some kind of
connotation to laws higher than positive law. His mention of the strongest of
solidarities and ‘eternal truths’ also carries the same interpretation, while
the line regarding ‘intelligence and hearts perfectly in accord’ could be a
reference to right reason and intellect, and consequently its ability to
determine natural law.
Considering
that Aguinaldo’s presidency marks, in essence, the genesis of Philippine
governmental and constitutional thinking, it is here quoted substantially:
“I congratulate you upon having concluded your constitutional work. From
this date, the Philippines will have a National Code to the just and wise
precepts of which we, each and every one of us, owe blind obedience, and whose
liberal and democratic guarantees also extend to all.”
“Hereafter, the Philippines will have a fundamental law, which will
unite our people with the other nations by the strongest of solidarities; that
is the solidarity of justice, of law, and of right, eternal truths, which are
the basis of human dignity.”
“Great is this day, glorious is this date; and this moment, when our
beloved people rise to the apotheosis of independence, will be eternally
memorable. The 23rd of January will be for the Philippines, hereafter a
national feast, as is the Fourth of July for the American nation. And thus, in
the same manner that God helped weak America in the last century, when she
fought against powerful Albion (England), to regain her liberty and
independence; He will also help us today in our identical goal, because the
ways of Divine Justice are immutably the same in rectitude and wisdom.”
“You have justly deserved the gratitude of the country and of the
government, in that you showed the entire world, by your wisdom, sound sense,
and prudence, that in this remote and heretofore unknown portion of the world,
the principles of European and American civilization are known, and more than
known; that intelligence and hearts here are perfectly in accord with those of
the most civilized nations; and that notwithstanding the calumnious voice of
our eternal detractors, there is here, finally, a national spirit, which unites
and forges together all Filipino hearts into a single idea and single
aspiration to live independent of any foreign yoke in the democratic shadow of
the Philippine Republic.”
“For this reason, on seeing consecrated in our constitutional work the
eternal principles of authority, of liberty, of order and justice, which all
civilized nations profess, as the most perfect guaranty of their actual
solidarity, I feel strength, pride, and am sincerely impelled, from the bottom
of my heart to shout—“
On the other hand, Manuel Quezon
invokes the aid of God at both the beginning and at the end of his inaugural
address, but not with the frequency that could be expected in a presidential
speech. However, his speech invokes Him in a way that is reminiscent of the
idea of ‘Divine Providence’, as can be seen from the expression ‘unerring and
guiding hand’, which connotes a higher law. Further, his suggestion that the
administration of justice depends on the moral and intellectual standards of
the men who dispense it could be a reference to right reason and intellect
being a basis for the law. His second (wartime) speech does not focus too much
on law, perhaps because of the exigencies of the time, but he still makes
reference to higher principles or norms which are the basis for justice.
Jose
Laurel’s inaugural address has a heavy emphasis on the dignity of the human
person, and seems to lament that it has been allowed to ‘decay’, in his
opinion. However, this is interesting in context, because he says this in his
speech as part of his justification for what appears to be a eugenics program
for Filipinos. Sergio Osmena (given upon Quezon’s death) has a very markedly
religious bent, in fact basing his opposition to the present occupied laws of
the Philippines on its supposed inconsonance with the Christian values the
Philippines has had for centuries.
Manuel
Roxas, given shortly after the end of the Second World War, is an interesting
combination of both religious and natural law elements. For instance, there is
significant mention of both God and Divine Providence in his speech. However,
at the same time, he raises the interesting perspective that ‘Justice is
absolute’, and thus consequently makes reference to a higher standard of
morality than positive law. Further, his statement that there is ‘right as God
gives us to see the right’ (obviously borrowed from Abraham Lincoln) can be
seen as a reference to the idea of divine or eternal law in determining
justice.
Elpidio
Quirino’s is quite clearly religious in
his elucidation of his principles of law, and it can be gleamed from the tone
of his speech that his perspective of the law is that it is something which is
granted by God to man, at least insofar as how he understands it. Christian
culture and the dignity of the human person are also quite emphasized. On the
other hand, Ramon Magsaysay’s inaugural address is not immediately clear; on the one hand, he does make
reference to a principle which exists above positive law but at the same time
frames it under a nation which is under the protection of God. Carlos P. Garcia’s
rather sober address has aspects both of natural law and
religion in his speech, which seems to be predicated on the notion that all law
must be based on ‘the Rock of Ages’ and on a higher morality for it to endure.
He invokes Divine Providence as well, but from the general tone of his speech, it
is perhaps safe to say that such is more natural law oriented. Diosdado
Macapagal’s, meanwhile, has an orientation that is towards religious but also
seemingly reasoned in its perspective, and that mainly law must be dispensed
together with God’s guidance.
Ferdinand
Marcos is unique, both for obvious reasons but also by the sheer fact of the
length of his tenure. His is the only president to have at least four inaugural
speeches. Of the first two, Marcos makes constant (and actually increasing)
reference to the role of God and of spirit and morality in general. But he also
makes reference to essential humanity, which appears, at least in his
discussion, to be something greater than the bounds of positive law. By his
third speech, Marcos now makes a noticeable shift to principles of “fundamental
law”. Both timeless principles, true and fundamental law, and faith above all
others have been invoked by Marcos in his desire for a ‘New Society’. Further,
reference to authentic freedom not being given by worldly authorities
reinforces the belief that Marcos has shifted to a natural law perspective.
Protestant
Fidel V. Ramos makes reference to what can be seen a natural Law, he only does
this via lifting a quotation from Rizal, whereas the rest of his speech quite
clearly approaches the issue from a religious angle. Gloria Macapagal Arroyo’s
first inaugural speech had a focus exclusively on a religious perspective. Her
second is otherwise completely religious. The speech is noticeable in that,
rather than calling certain acts as ‘illegal’, she referred to it as immoral,
which evinces perhaps an unstated belief (or at least her speech writers did) in
higher moral laws.
As
surveyed, only three presidents pointedly did not make any reference to a
“higher law”, whether it be “divine” or one akin to “natural law”. Joseph
Estrada focused more on his personal struggles as allegory to that of the
masses. Corazon Aquino did not as well. But this could be justified perhaps
because her swearing in as president occurred during the uncertain days of the
People Power revolution. Interestingly enough, her son, current president Benigno
Aquino, III did the same: failing to evince or refer to any higher law and seemed
more intent on extolling the virtues of his ‘tuwid na landas’ (literally the
“straight path”), which is more a political slogan than anything else.
D. In fine --
This
paper sought to find out how natural law worked within Philippine legal
history, and how the same can play a role in resolving present and future
social disputes. To do so, it had to look at its presence in judicial
determinations and see such within the broader social and value context of the
Philippines as seen through the views of its leaders.
That
the Philippines refer to a “higher law” is not doubted. What is not clear,
however, is the identity of such higher law. Did the cursory survey indicate a
Philippine legal system more “fideistic” than is supposed? If so, such presents
certain problems indeed, particularly as to how such could be worked into the
fabric of the Constitution. It is also clear that natural law has been
recognized consistently through the years. But how is such natural law to fit
in properly with the other pronouncements and rulings that are definitively
religious in character?
The
initial reaction to this was to conclude that the Philippines is simply
confused in its references to a higher law, mixing up “divine law” with that of
natural law. Hence, the seeming easy interchangeability with which the
judiciary (and to a certain extent our political leaders) have done on the two
seemingly distinct concepts. But on closer look, particularly as to the
reasoning that was done in the Estrada vs. Escritor case, what looked like
confusion becomes actually something else.
That the
Philippines involves natural law in its legal thinking becomes clear. So does
its belief that a higher, “supernatural” law holding human beings accountable. However,
rather than coming into a conclusion that the Philippines simplistically
foregoes reason in exchange for a convenient ambiguity that could justify any
decision by making references to a law that is more grounded on faith than
anything else, the greater probability is that the Philippines takes it for
granted that, assuming faith has a role to play in our legal system, such faith
is accompanied by reason. Rather, therefore, than simply resorting to fideism,
the Philippines seems to have recognized, quite “naturally” (no pun intended),
that matters of faith are “reasonable”. Taking that viewpoint, the propriety
therefore not only of natural law reasoning but also of including matters of
religious thought into judicial determinations, as well as legislation, becomes
all the more appropriate.
This
line of thinking is particularly interesting, considering that the Western
democracies have only but recently (albeit again) entered a debate as to
whether religious thinking is indeed rational and would make an appropriate
basis for policy or judicial decisions. However, as Baylor University’s Francis
Beckwith (Professor
of Philosophy and Church-State Studies)
would complain:
“… that when political conflicts between church and
state arise that academic and media elites treat the church’s point of view as
if it were an irrational outlier to contemporary culture. As I have come
to reluctantly realize, they simply do not know any better, since their
education insulated them from views contrary to the unquestioned secular
hegemony that was ubiquitous in their intellectual formation.’ This means that we Christians – Protestants,
Catholics, and Orthodox alike – cannot settle for mere cultural toleration (or
just having the right to speak) without at the same time making the case that
our faith, and all that it entails and presupposes, is aligned with reason.”[12]
Or, as J.
Budziszewski (Natural Born Lawyers, The Weekly Standard, December 20, 1999)
would even more cogently put it:
“Theologians
typically distinguish ‘general revelation,’ corresponding to natural law, which
God gives to all human beings through His creation, and ‘special revelation,’
corresponding to divine law, which He gives to believers through His word.
Novak argues that natural law is not only compatible with divine law but
presupposed by it; if you didn’t have the general revelation, you wouldn’t be
able to understand the special. Hall grasps that the relationship also works in
the other direction, for the salvation story puts natural law in its context:
If you didn’t have the special revelation, then you would still have the
general, but it would be a message of futility. Indeed, by itself, natural law
is not good news (the literal meaning of the word ‘gospel’), but bad news--a
standard which in this fallen world we cannot keep, which serves primarily to
allow us to measure our failures.”
The
significance of this becomes all the more apparent when one considers this
paper’s title. I called the Philippines the “last battleground”. And the reason
for that is twofold: the Philippines is the only country left in the Southeast
Asian region that still does not have national legislation legally
institutionalizing contraception[13] and is the only remaining country on Earth (except perhaps for the
Vatican) that still does not recognize divorce[14]. A lot of the credit has to go to the Catholic Church for courageously
keeping to its teachings and the boundless faith of the millions of practicing
Catholics, as well as other like-minded Christians and also of our brothers in
the Muslim faith. However, if it is to stand its ground on these two issues,
despite massive funding being given by international organizations,
pharmaceutical companies, and liberal groups, a lot of it will depend on the
Philippines being confident enough that its legal system is not based merely on
a “leap of faith” but is properly anchored on reason as well.
But
there is an even more significant aspect to all this: for a country of seven
thousand islands, hundreds of dialects, varied cultures and religions,
different races and even political beliefs, the one unifying thing that could
be said of the Philippines is its belief that faith, with a commonality to be
found first in natural law, is indeed reasonable. The other thing that must be
considered is the Philippine demographic: Filipinos 30 years old and below comprise around
70% of the population (with those below 14 years at 35%, with the median age at
22.9 years old). Those at 65 years old comprise only about 4.1%. Whoever or
whatever captures the soul of this demographic effectively captures the soul of
the nation for many decades to come.
Viewed
in that regard, to accept and institutionalize such belief that a reasonable
faith has a proper role in public and political matters, even perhaps serving
as a fundamental and universal normative framework, is perhaps the real last
battleground.
[1] See Conversation with
a Bishop, Fr. Joaquin Bernas, Philippine Daily Inquirer, 8 September 2012; also
The Trouble with Natural Law, Fr. Ranhilio Aquino, Manila Standard Today, 24
September 2012
[2] At least as defined by Javier Hervada
[3] In his The Ethics of Procreation
[4] The Malolos Constitution: “We, the
Representatives of the Filipino people, lawfully covened, in order to establish
justice, provide for common defense, promote the general welfare, and insure
the benefits of liberty, imploring the aid of the Sovereign Legislator of the
Universe for the attainment of these ends, have voted, decreed, and sanctioned
the following:”
“Article 5.
The State recognizes the freedom and equality of all religions, as well as the
separation of the Church and the State.”
“Article 28.
The enumeration of the rights provided for in this title does not imply the
denial of other rights not mentioned.”
[5] See “Art.19.Every
person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good
faith.”
“Art. 20. Every person who, contrary to law, wilfully or negligently
causes damage to another shall indemnify the latter for the same.”
“Art. 21. Any person who wilfully causes loss or
injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage.”
[6] Report of the Code Commission, Pages 40-41, as cited in page
33, Persons and Family Relations Law by Sta.Maria, Fifth Edition, 2010.
[7] See Basilio De Castro (1946; where Justice Perfecto
establishes his perspective on the nature of rights fundamental, which he
believes must always prevail over the procedural), Metropolitan Transportation
Service (1948; where he asks as to whether the state should be suable and
compares this to the old Divine Right of Kings, by which the Sovereign could do
no wrong. Clearly rejecting such opinion, he shows instead that human
personality should prevail. Although, it is curious to note that he says that
monarchs are of ‘divine’ origin), En el
asunto de ABELARDO SUBIDO (1948; where acknowledges that the
constitution only recognizes what is already a fundamental and natural right
and duty of parents towards the rearing of their children, and further in his
opinion there are two Laws which may be violated, the Human and the Divine,
which further establishes that he is of a very strong natural law orientation).
[8] With which Justice Puno cites People v. Asas, People
v. Agbot, Mobil Oil Philippines, Inc. v. Diocares, et al., Manila Memorial Park Cemetery, Inc. v. Court of
Appeals, et al., Yu Con v. Ipil, et
al., and Simon, Jr. et al. v. Commission on Human Rights
[9] Mabini’s Decalogue was obtained from Project Gutenberg’s
online eBook collection of historical works, Gutenberg.org.
[10] See Filipiniana.net (Rizal,
1892), Rizal, J. (1892). Prospectus of Colegio Moderno. Retrieved
September 19, 2012, from Filipiniana.net:
http://www.filipiniana.net/publication/prospectus-of-colegio-moderno/12791881713246/1/0
[11] All speeches obtained from the Website of the Official Gazette of
the Government of the Philippines.
[12] Francis Beckwith,
Faith, Reason, and Secular Hegemony, 13 April 2012
