My House testimony on the SOGI anti-discrimination bill

Statement on the proposed draft consolidated Bill “Prohibiting Discrimination on the Basis of Sexual Orientation or Gender Identity (SOGI), Providing Penalties Therefore and for Other Purposes”

* Delivered orally before the Committee on Women and Gender Equality, House of Representatives, 10 February 2015.

1. The comments herein are intended as brief preliminary thoughts on the proposed draft consolidated bill (hereafter referred to as the “Draft Law”), without prejudice to a possible further later exposition on the points outlined below.

Nature of international human rights law

2. There is, as yet, no binding international law obligation relating to sexual orientation or gender identity, or as to that designated as LGBT (i.e., lesbian, gay, bisexual, transgender) “rights”. Certainly no written international instrument that expressly mentions sexual orientation or gender identity “rights” constituting a binding international obligation have been entered into by States at the international level. Resolutions, whether of the General Assembly or the Human Rights Council, it must be emphasized, do not form binding obligations on States (and this includes the so-called Yogyakarta Principles).[1] Having said that, at the United Nations level, almost 100 State members have either rejected or otherwise refrained from expressing support for the so-called LGBT “rights”.

3. Even as a matter of international customary law, with its requirements of practice and opinion juris, it would be hard to argue for LGBT rights considering that 78 States have, in fact, expressed the opposite, labeling the same criminal.[2] As pointed out by one social commentator: “In the first place, and unlike the main elements of the Universal Declaration of Human Rights, sexual liberation has no roots in the traditional cultures and religious traditions that shape the lives of the vast majority of people in the world.”[3]

4. But even had there been such a legally binding obligation at the international level, it is in the nature of international human rights law that States will have wide latitude as to its implementation. Many too readily presume the universality of international human rights, ignoring the fact that its relatively recent existence poses problems in implementation at the State level. Specifically for sexual orientation and gender identity, such “are vague and ill-defined, and have come to encompass a whole range of morally problematic ideas, including same-sex marriage, adoption by gay and lesbian couples, and presenting the homosexual lifestyle positively to schoolchildren.”[4]

5. There is also the fact that international human rights law is quite political.[5] The United Nations Committee on the Elimination of Discrimination Against Women (which oversees the Convention on the Elimination of All Forms of Discrimination Against Women), for example, has proven to be quite controversial, seen by many as promoting Western-style feminism. The Convention on the Elimination of All Forms of Discrimination Against Women itself has been viewed, by the Women for Faith and Family for one, as being “destructive of rights basic to every human being and the rights of cultural self-determination of nations,” albeit though presenting itself as protecting the rights of women.[6]

Human rights cannot deviate from natural law

6. A point that I believe is beyond contention is that human rights are the "inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being."[7] In short, our rights are based on our appreciation of what it means to be human. Human rights, as in natural law (a universal, objective standard of right and wrong based on right reason, independent of man-made laws[8]), are universal (applicable to everyone and everywhere), and exist in both national and international law.[9]

7. Human rights is, in fact, closely related to that of natural rights,[10] a thought further illustrated by noted philosopher Jacques Maritain: “The philosophical foundation of the rights of man is natural law” and that “the true philosophy of the rights of the human person is based upon the true idea of natural law”.[11]

8. Accordingly, as human rights is based on natural law, then it can be fairly said that there can be no human right contrary to natural law: “The moral absolutes give legal reasoning its backbone. xxx These moral absolutes which are rationally determined and essentially determinate, constitute the most basic human rights.”[12]

9. International law itself recognizes the significance of natural law in relation to the matter of rights. One can easily see this in the creation of the United Nations (of which Jacques Maritain played a not insignificant role), as well as important documents on human rights such as the 1948 UN Declaration on Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, amongst others (incidentally, these international instruments are mentioned in the Draft Law even though none make direct express reference to sexual orientation or gender identity rights).[13] Thus, one basis of international law is said to be the natural law, upon which our concepts of jus cogens (as well as erga omnes) is rooted.

10. The Philippine legal system itself considers “the United Nations instruments to which the Philippines is a signatory, namely the UDHR ... binding upon the Philippines, the ICCPR and the ICESCR.”[14] This has been expressly stated by the Supreme Court in Republic vs Sandiganbayan, where then member of the Court Reynato Puno cogently and methodically traced the history of the concept of natural law and elaborates on the central position it holds in the Philippine legal system.[15] The significance of the foregoing is that it expresses a fact about the Philippine legal system: that our concept of human rights stem from natural law.

11. Recently, of course, there has been a move to present our legal system as purely coming from the perspective of the positivist theory of law. This is perhaps understandable when one considers that a substantial number of our law professors were brought up appreciating the contributions of liberal academic legal institutions in the US. But this problematically compels one to essentially take the view that as Congress could provide a right, then Congress can take that right away.

12. The foregoing, however, runs counter to our established belief that human rights as universal and immutable, as can be seen from the natural law inspired provisions of the Constitution such as Articles II and III thereof. Legal philosopher Javier Hervada says it at his concise best: “Outside the fulfillment of natural law, there is no right.”[16]

13. Thus, this insight from the Supreme Court is relevant for the issue at hand: “not everything that society – or a certain segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. xxx [To do so will have] the effect of diluting real human rights.”[17]

Constitutionalism as duty of all

14. It is also relevant to note that Article VIII Section 1 of the 1987 Constitution has broadened the scope of judicial review, expanded by the adoption of Article VIII, Section 1 of the 1987 Constitution, which defines judicial power as “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government.”

15. “Grave abuse of discretion” is frequently defined as "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction."[18] In addition, explanations of the concept of “grave abuse of discretion” equate the same to where power is exercised “in an arbitrary and despotic manner by reason of passion and hostility.”[19] The foregoing also must be accomplished with the Constitution’s directive that the State “promote the common good … [and] truth.”[20]

16. The point here is that the mandate given to the Supreme Court also results in the logical corollary duty on the part of Congress: that the broad discretion that the legislature enjoys in enacting laws is not absolute but must follow, among others, such standards on legislation being “sound”, fair, and reasonable.

17. Put another way, constitutional law, properly understood, does not give to the Supreme Court the exclusive power to determine the constitutionality of an issue. It is not meet or proper that the other branches of government pass such questions to the Supreme Court.18. Congress is certainly authorized, empowered, and mandated to pass only legislation that in its rightful use of judgment is in compliance with our Constitution and in accordance with right reason.

Ambiguity of Draft Law

19. Beyond the fundamental issues relating to international law, the nature of rights, and constitutional interpretation, there are also other more specific issues that need to be addressed in the Draft Law, particularly with regard to ambiguity and the difficulty of implementation.

Identity of those protected

20. At the outset, it would be apt to point out that Facebook alone identifies at least 51 genders[21]. Gender experts, however, vary: there could be as many as three or even as many genders as there are individuals.

21. The point here is that, no scientific consensus exists that homosexuality is genetic.[22] And there is no consensus on the nature and origin of sexual orientation.[23] This is significant. Because in order for this penal law, meaning the Draft Law, to be effective it must be able to:

a)      identify properly those covered by the protections it offers; and
b)      capable of being implemented by the police or judicial system in terms of evidence.

22. True, Section 3.b. and 3.c. of the Draft Law does define “gender identity” and “sexual orientation” but it does so in an unfortunately ambiguous and superficial way. Much of what can constitute identity or orientation cannot be seen through clothing or even at skin level. And yet, we are supposed to punish individuals (e.g., employers, faculty administrators, business owners, ordinary service employees, etc.) for failing to identify the very particular kind of people covered by a special law.

23. There is also the difficulty of proving that one has indeed been discriminated due to gender identity or sexual orientation (and not for any other reason), and proving that such a status of gender identity or sexual orientation did exist at the time of the supposed discrimination. In other words, there is the failure to identify the evidence that must be presented to our courts that at the time of the supposed discrimination taking place the person making the claim is indeed covered under the purview of the provisions of the Draft Law and that the person or persons committing the discrimination did so because of that complainant’s sexual orientation or gender identity and not for another (justifiable) reason. This difficulty is heightened because of the possibility that sexual orientation can unilaterally change through time.[24]

24. It is to be noted that the foregoing ambiguities cannot even be cured by an administrative rule or regulation due to the lack of appropriate standards or legally perceived boundary.

Extent of protection from discrimination

25. Then there is the paradox that by seeking the removal of discrimination, that discrimination is the result. Section 3.a of the Draft Law defines “discrimination” again in an unfortunately ambiguous way, to the point that the Draft Law seeks to provide discrimination in relation to “all rights and freedoms”.

26. This, however, as I said, paradoxically creates its own set of discriminations. Not all citizens enjoy equal rights and freedoms. And yet, a tiny portion of the population is to experience what the rest of the population does not enjoy.

27. I reiterate that the LGBT population is quite limited. A recent US study pegs its own LGBT population to between 2-5% of population.[25] The Philippine demographic may not be too far off.

28. Fundamentally, and this is something that many perhaps do not appreciate, our system of laws is built on discrimination. We distinguish and we make judgments: from who can run for Congress to who can practice law or medicine; can someone drink alcohol, to who can drive a car. What our laws, do not allow for is wrongful discrimination, built on unequal treatment between those belonging to a similar class. As Richard W. Garnett, Law Professor at Notre Dame Law School, says: "it is not true that ‘discrimination’ is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it -- say, through its expression and spending -- even when it is wrong. ‘Discrimination,’ after all, is just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria."[26]

29. The eccentric thing about the Draft Law is that it purports to say that there is no difference between the rest of the Philippine population and the LGBT and then proceeds, as I noted above, to provide rights and protections to the LGBT that the rest of the community does not enjoy (which is the total absence of legal discrimination). Not only is this against the essence of democratic rule, it also illogically violates the doctrine of equal treatment, as well as the idea of human rights being universal.[27] Rather than equality of rights, we have a balkanization of rights for groups of people rather than for all people.

Effect on other laws

30. The Draft Law also needs further study on the probable effect it will have on other laws. Judging by the usual listing that LGBT advocates have regarding the “rights” they are pushing for, such will involve laws relating to employment, military service, adoption, marriage, student activities (such as attending school dances with same-sex dates and dressed in gender nonconforming ways if they choose), parenting, schools, and government identity documents.[28]

31. In which event, the implications and possible conflicts such will have vis-à-vis the constitutional protections relating to religion, free expression, academic freedom, and contract will need to be examined and address, along with its relationship to family (including marriage, adoption, succession), labor, education, tax and social services, military, and health laws, amongst others. The affected stakeholders need to have a say and be consulted because, as pointed above, the possible unintended effect is discrimination in order to ostensibly rid of discrimination.

SOGI and natural law

32. It has to also be considered that the identity of our society can be seen in our Constitution. And our society and its Constitution were both created not within a vacuum or through a veil of ignorance, but with a peculiar context, circumstance, and history.

33. It is a given that our Constitution has been inspired by the text of the US Constitution. Clearly, the people who wrote our Constitution knew the context in which they were writing it (particularly coming off the Martial Law experience, as an example) but also the context in which the US Constitution was written.

34. One particular context that must be considered is the background of the US Constitutional Convention delegates, particularly the religious and philosophical beliefs of the delegates. Most were Christians (only two were Catholics, the rest were Protestants). At the very least, all believed in a deity or were theists of some sort. Also, the delegates were certainly quite aware of Aristotelian thought, and quite definitely the ideas of the Enlightenment thinkers such as Locke and Rousseau. That would mean then that the US Constitution was framed with the idea of man’s telos or purpose, of self-evident natural rights, and of the common good (or “general will”).

35. As such, the explanation by noted legal philosopher John Finnis on the relationship between laws and homosexuality is of interest: “Let me begin by noticing a too little noticed fact. All three of the greatest Greek philosophers, Socrates, Plato and Aristotle, regarded homosexual conduct as intrinsically shameful, immoral, and indeed depraved or depraving. That is to say, all three rejected the linchpin of modern ‘gay’ ideology and lifestyle.”[29]

36. “At the heart of the Platonic-Aristotelian and later ancient philosophical rejections of all homosexual conduct, and thus of the modern ‘gay’ ideology, are three fundamental theses: (1) The commitment of a man and woman to each other in the sexual union of marriage is intrinsically good and reasonable, and is incompatible with sexual relations outside marriage. (2) Homosexual acts are radically and peculiarly non-marital, and for that reason intrinsically unreasonable and unnatural. (3) Furthermore, according to Plato, if not Aristotle, homosexual acts have a special similarity to solitary masturbation, and both types of radically non-marital act are manifestly unworthy of the human being and immoral.”

37. Accordingly, there is an inherent absence of the element of the “common good” so necessary in our constitutional system, inasmuch as homosexuality itself would involve the partners “treating their bodies as instruments to be used in the service of their consciously experiencing selves; their choice to engage in such conduct thus disintegrates each of them precisely as acting persons.” This is contrary to reason and the idea of human dignity that natural law seeks to protect and is embodied in our Constitution.

38. If, then, what Finnis says is correct, then we have a proposed legislation that not only seeks to recognize a matter that contradicts natural law (as well as the tenets of the Constitution, particularly of the common good) but even, as I pointed out above, gives rights to a small portion of the population over that of other citizens. Fundamentally, this opens up the Draft Law to being categorized as one that is “arbitrary”, "capricious or whimsical exercise of judgment”, contrary to reason, amounting to “grave abuse of discretion”.

39. Having said that, this is not to say that wrongful discrimination should be tolerated. It shouldn’t. But there are two things to be considered:

a)      The provisions of the Constitution, particularly its Bill of Rights, should be allowed and trusted to resolve whatever concerns that the Draft Law is concerned about; and
b)      In this issue, complicated as it is, the Congress would do well not to ignore the basic philosophical foundations of our Constitution: the common good (found in the Preamble) and subsidiarity (the theme of which runs through the Constitution, particularly on devolution of authority). These two go hand in hand.

40. Instead, with the Draft Law, we are creating further complexities: of men who say they are women using women’s restrooms, of girls coming to school using boy’s school uniforms or sports jerseys, of persons demanding to be identified contrary to what is recorded in public documents. The point here is not our passing feelings or sentiments but that legislation and public policy build a society based on truths about the human person and human dignity rather obfuscate matters with unproven social claims that could possible pave the way for the confusion of future generations.

41. Finally, of common good (and subsidiarity's role in it), the best definition can be found in John Finnis' Natural Law and Natural Rights: "a set of conditions which enables the members of a community to attain for themselves reasonable objectives, or to realize reasonably for themselves the value(s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community."

42. Note the repeated mention of the attainment "for themselves" by the people. The government, including this Congress, is encouraged not to involve itself in every facet of human interrelationships. Sometimes, as in the present case, it is better to trust in the inherent wisdom of the people and the Constitution rather than create a law incapable of grasping a matter of immense social, legal, scientific, medical, psychological, economic, and political complexity.
__________________________________________________

[1] a fact pointed out by the Supreme Court in Ang Ladlad vs Comelec, G.R. No. 190582, , 08 April 2010: “At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.”

[2] see listing by the International Lesbian, Gay, Bisexual, Trans and Intersex Association; http://76crimes.com/76-countries-where-homosexuality-is-illegal/, retrieved 08 February 2015

[3] Exporting Gay Rights, RR Reno, First Things, February 2012

[4] Human Rights, Sexual Orientation, and Gender Identity at the UN; Austin Ruse, Public Discourse, November 2012

[5] Four Human Rights Myths, Susan Marks, LSE Law, Society and Economy Working Papers 10/2012; London School of Economics and Political Science

[6] http://www.wf-f.org/CEDAW.html

[7] See Sepúlveda, Magdalena; van Banning, Theo; Gudmundsdóttir, Gudrún; Chamoun, Christine; van Genugten, Willem J.M. (2004). Human rights reference handbook (3rd ed. rev. ed.). Ciudad Colon, Costa Rica: University of Peace. ISBN 9977-925-18-6.

[8] This is a commonly accepted definition, sometimes attributed to Javier Hervada (see Criticial Introduction to Natural Law, 2006)

[9] See Nickel, James (2010). "Human Rights". The Stanford Encyclopedia of Philosophy (Fall 2010 ed.).

[10] Jones, Peter. Rights. Palgrave Macmillan, 1994, p. 73.

[11] Man and the State, Jacques Maritain, University of Chicago Press, 1951, Chap. IV, pp. 76-107.

[12] Natural Law Theory, Natural Law and Legal Reasoning, John Finnis, 1992, pp.148

[13] Justice Puno, Separate Opinion, Republic vs Sandiganbayan, GR No. 104768, 21 July 2003; see also Morsink, Johannes (1999). The Universal Declaration of Human Rights: origins, drafting, and intent. University of Pennsylvania Press. ISBN 978-0-8122-1747-6

[14] Justice Puno, Separate Opinion, Republic vs Sandiganbayan, GR No. 104768, 21 July 2003; citing Fernando, E., Perspective on Human Rights: The Philippines in a Period of Crisis and Transition (1979), pp. 1-2, citing Borovsky v. Commissioner of Immigration, et al., 90 Phil. 107 (1951); Mejoff v. Director of Prisons, 90 Phil. 70 (1951); Chirskoff v. Commissioner of Immigration, et al., 90 Phil. 256 (1951); Andreu v. Commissioner of Immigration, et al., 90 Phil. 347 (1951).

[15] G.R. No. 104768, July 21, 2003.

[16] Underscoring supplied; Criticial Introduction to Natural Law, Javier Hervada, 2006, p.137

[17] Ang Ladlad vs Comelec, G.R. No. 190582, 08 April 2010

[18] See, for example, De Vera v. De Vera, G.R. No. 172832, April 7, 2009.

[19] Ibid.  Citation omitted.

[20]  see the Preamble

[21] What Each of Facebook’s 51 New Gender Options Means; Daily Beast, 15 February 2014

[22] see for example the result (or non-results) of Dr George Rice of Canada’s University of Western Ontario study, reported in the Independent, (U.K.), April 23, 1999, p. 5; as well as Science, April 23, 1999, pp. 571, 665–667.” Note, however, Paul McHugh, University Distinguished Service Professor of Psychiatry at Johns Hopkins University (in his article Surgical Sex, First Things, November 2004): “Johns Hopkins Psychiatry Department eventually concluded that human sexual identity is mostly built into our constitution by the genes we inherit and the embryogenesis we undergo.”

[23] Sexual Orientation and Homosexuality, American Medical Assocation; retrieved 8 February 2015; http://web.archive.org/web/20130808032050/http://www.apa.org/helpcenter/sexual-orientation.aspx

[24] see Sexual Orientation, Gender Identity, and Employment Law, Paul McHugh and Gerard V. Bradley, Public Discourse, July 2013

[25] Sexual Orientation and Health Among U.S. Adults: National Health Interview Survey, 2013

[26] Confusion About Discrimination, Richard W. Garnett, Public Discourse, April 5, 2012

[27] 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)

[28] American Civil Liberties Union; retrieved 8 February 2015, https://www.aclu.org/lgbt-rights

[29] Law, Morality, and "Sexual Orientation" John Finnis; 1997

Of constitutional interpretation and the Bangsamoro Basic Law

was my Trade Tripper column in the 30 January 2015 issue of BusinessWorld:

This article is dedicated to the Filipino security forces recently killed in Maguindanao.

I recently came across the Jan. 9 statement by a number of Constitutional Commission (ConCom) members that drafted the 1987 Constitution. In it, they expressed support for the “creation of the Bangsamoro Autonomous Region.”

Very sincerely, I am quite respectful of many of the members that signed that statement, having learned constitutional law or economics from them. But I also feel that I must speak up to point out areas that need to be clarified or examined further. As always, should there be flaws in my reasoning, the fault is mine and not on the teachers.

First off, the ConCom members’ opinions are, of course, helpful in determining the meaning of the Constitution’s words. But it must be remembered that they are not its authors. The people are. And it is their understanding of the words when they ratified it in 1987 that prevails (hence, the “ordinary meaning” rule in statutory construction). It is when such is not possible that we go to the ConCom members for guidance.

But the Constitution is clear on maintaining territorial integrity, with Yale-trained constitutionalist and retired Supreme Court Justice Vicente Mendoza already making public his concerns regarding the Bangsamoro Basic Law.

Now, the statement does say that the “Bangsamoro is about the development of people, not about the constitutionality of words.” But this is circular. How can one know the view of the Constitution on development if not through its words? And how can one know about the Bangsamoro Autonomous Region as a tool for development except through the words of the Comprehensive Agreement and the draft Basic Law? And it is precisely the point of those who have raised issues in relation to the Basic Law that such will not lead to true development.

Furthermore, how can genuine development be reached if to do so means violating the Constitution (the very question of the congressional hearings)? Certainly, to begin by not following the rule of law could not be a very good start indeed.

Now implied referral has again been made to the “living” constitution theory (emphasis on “theory”), in that the Constitution’s words can be said to “evolve” to fit the present situation. But this argument is a bit eccentric. If the Constitution’s words can be said to evolve, then why did the ConCom members bother taking months to carefully craft the words of the Constitution? Why have amendatory provisions? And who is to say that the words have evolved and in what form? Certainly not the ConCom members. Not even the Supreme Court, as it can only act within the authority mandated by the people (as written in the Constitution). So that leaves the Filipino people. But usually only through referendum or plebiscite.

The statement goes on to declare: “International Law is not an iron law imposed by a suprabody above all nations that disallows interpretations of words and language to fit the diverse situations of individual nations.” This is a huge understatement. If anything and to mix metaphors, international law is so opaque that it gives a country enough room to hang itself.

But that is not really the point. What is revealing about this is that the statement then goes on to say that the creation of the Bangsamoro Autonomous Region “can become part of international law” upon “its acceptance by the community of nations.”

Which is what I have been asking all along that others keep denying: why is this issue internationalized? Why do we have another country (i.e., Malaysia) part of the process? Why are foreign countries influencing the legislative process with promises of foreign aid? Why is the Department of Foreign Affairs and not the Department of the Interior and Local Government taking the lead in this regard? Why do even ConCom members believe that there is a need to have “acceptance” by other countries? This is a matter supposed to be about Filipinos between Filipinos. Why are we talking as if this involves another international personality?

Which leads to this baffling part in the statement: “...by the explicit requirement in the [Basic Law] that the new organic law should be in conformance with the Constitution, and the unequivocal statement that the Bangsamoro territory shall remain part of the Philippines.”

Because there is nothing in the Comprehensive Agreement that says such things. In fact, the Constitution is barely mentioned (just once and to say that it should be amended to fit the Agreement). The Basic Law does mention the Constitution, but it also mentions the need to conform to “international law,” “system of life prescribed by [Muslim] faith,” and “harmony with our customary laws, cultures, traditions.” In short, rather than being supreme, the Constitution is but one of other laws that the Basic Law obeys.

All in all, and with due respect to the members of the ConCom, the entire Filipino people themselves need to give closer attention and examination to the provisions of the Agreement and the Basic Law, and ultimately decide its fate.

Pope Francis: the human permission slip

was my Trade Tripper column in the 23 January 2015 issue of BusinessWorld:

As he so eagerly awaited, CNN, local liberal news and social media, and the “progressive” Left academics and commentators couldn’t hide their giddiness at the arrival of the man who would finally put the Filipino bishops in their place, announce changes to Catholic doctrine, demand that the Church get with the times to “retain its relevance,” and proclaim that to judge another is so 1980s-2000s. Unfortunately, for them, for some reason (my guess is that it had something to do with “reality being superior to ideas”), Pope Francis threw away their script.

A VERY GOOD SPEECH
Admittedly, though, the papal visit started off on a quite humdrum note. After the obligatory “North Korean-ish” reception at the airport (at least according to one commentator; I myself wished the dancing kids spent more time with the Pope rather than the politicians) and the waving at crowds, the Pope spent a relatively quiet evening at the Apostolic Nunciature in Manila. But the next day and the days after, it would be different. For this we probably have to thank President Benigno Aquino.

Jesuit-trained and Ateneo-educated (which, according to one online writer, “preached a faith that was more relatable, more grounded and more rational... not centered on the Catholic traditions”), he welcomed the Pope next morning in Malacañang with a speech. And it was probably a very good speech (I haven’t read it myself) because from that point on the papal visit zoomed from 0 to 100.

THE NEED FOR BETTER LEADERS
Speaking after the President, Pope Francis declared that now, more than ever, it is “necessary that political leaders be outstanding for honesty, integrity and commitment to the common good.”

After that would be profound, relentless pleas to care for the poor and fight against the evils of corruption. This was a theme that would be repeated again and again at the Manila Cathedral and in Tacloban.

Even then, it needs to be said that Pope Francis is not a liberation theologian of the Marxist or socialist kind. In essence, he was reiterating fairly established Church teachings, particularly in relation to charity.

It must be remembered that the Church is not an economic policy think tank. Nor is the Pope an expert on the environment. Any teaching he makes is always through the prism of morality, from the viewpoint of faith and the supernatural.

As one commentator puts it, Pope Francis’ “theology is defined by the question of how to speak good news to the poor.” Anything else will just minimize the Church into an activist organization or NGO.

ON MARRIAGE AND THE FAMILY
However, while the Church can indeed talk about economic or environmental issues (albeit within the aspects of morality and faith), nevertheless, it is on far surer footing (scriptural, human experience, and reason-wise) on social issues such as the family or sexual ethics. And it is on this subject that Pope Francis spoke the words that will be and should be remembered for quite some time.

Because, to be honest, many of the Catholic faithful have been asking what Pope Francis’ actual stand is on contraception, divorce, same-sex “marriage,” and euthanasia. So it was just stunning and overwhelming to realize that Pope Francis chose the Philippines to say what many in the world have so longed to hear:

“Every threat to the family is a threat to society itself” and the family is “threatened by growing efforts on the part of some to redefine the very institution of marriage, by relativism, by the culture of the ephemeral, by a lack of openness to life.” All therefore must do their best “to overcome these threats.”

This was said at the Mall of Asia on Jan. 17. Before that, at the Manila Cathedral, was a quiet, almost unnoticed but significant rebuke to those who thought that Pope Francis’ “who am I to judge?” was a call for a “if it feels good, do it” return to 1960s self-indulgence: “The Gospel is also a summons to conversion,” which “means being the first to examine our consciences, to acknowledge our failings and sins, and to embrace the path of constant conversion.”

LET’S HEAR IT FOR THE GIRLS
Pope Francis even took the time to say something about women: “Women have much to tell us in today’s society. Sometimes we’re too macho and we don’t leave enough room for women. Women are able to see things with different eyes than us. Women are able to ask questions that men can’t understand.”

This was received well in the media. But really, why are people surprised? This has always been the Church’s teaching: the greatest human was the one that gave birth to God, the only one hailed, blessed, and full of grace. The only human whose requests Christ could not refuse. And when Christ was crucified and all the men ran away scattered and scared, only the women were brave enough to be with Him till the very end. And it was to women whom He appeared first upon resurrection. Oh, and we do refer to the Church as our “mother.”

FOREVER OLD, FOREVER NEW
And then there was the homily during Sunday Mass at the Luneta. Closing my eyes, I really couldn’t tell anymore if it was Pope Francis or his brilliant predecessor Pope Benedict XVI or Saint John Paul the Great speaking. And what was said showed a Church ever united and one in teaching:

“Sometimes, when we see the troubles, difficulties and wrongs all around us, we are tempted to give up. It seems that the promises of the Gospel do not apply; they are unreal. But the Bible tells us that the great threat to God’s plan for us is, and always has been, the lie. The devil is the father of lies. Often he hides his snares behind the appearance of sophistication, the allure of being ‘modern’, ‘like everyone else.’”

This call against modernity’s “allure” does not only refer to technology (as some local news anchors tried to spin it) but rather to all passing fads and fancies, of socio-political theories that are detached from reality, of governmental measures that disconnect us from faith and values.

But most of all, it is against a modernity that portrays the Church as out of touch and tempts us with “confusing presentations of sexuality, marriage and the family.”

This, Pope Francis reiterates: “Sadly, in our day, the family all too often needs to be protected against insidious attacks and programs contrary to all that we hold true and sacred, all that is most beautiful and noble in our culture.” One has to love how Pope Francis inserted the word “program.” I don’t think this was a show of support for the RH Law.

SURPRISE: POPE FRANCIS IS CATHOLIC
In the end, the man the media painted as surprising and “progressive” proved to be just that: a surprise and a progressive (albeit in the best and true sense of the word: a defender of the faith, an upholder of the truth).

But perhaps we shouldn’t have been surprised. It was ultimately unfair and naïve to look at Pope Francis not as he is but as one that “progressives” wanted to create and mold as their will dictated: a walking talking permission slip who would say “there there” and “whatever you do is fine” and “so long as you’re happy, I’m happy.”

Instead, Pope Francis turned out to be someone far far better: the Bishop of Rome, the Pope of the Catholic Church, the Vicar of Christ preaching mercy with justice, forgiveness with conversion, and of truth, reason, and faith.

Religion and the progressives double standard

was my Trade Tripper column in the recent weekend issue of BusinessWorld:

Last week was just about Charlie Hebdo, the French magazine known for its satirical cartoons. Though an equal opportunity offender (lampooning viciously everybody, whether it be Christians, Jews, immigrants, etc.), unfortunately one group of people didn’t find some of the cartoons funny (I don’t think anybody does) and so did what any normal, well-adjusted men of faith would do (of course, I’m being sarcastic): massacre a substantial number of the editorial staff (plus two policemen who were at the scene).

The “progressive” Left’s reaction has so far been predictable: (a) lump all religion together negatively as a bunch of intolerant extremists with hair-trigger personalities; (b) obfuscate the matter by putting out to the public gazillions of social media updates, thoughts or articles under the guise of “bridge-building” or the seeking of “compromise” (inevitably leading to inaction); or (c) blame poverty, historical hurts, or politics as the cause of the massacre (rather than pin the responsibility on adults with the free will to choose to just not kill anyone).

The first reaction is so expected it’s almost a satire: “progressives” dislike religions, as they abhor the idea of moral standards. To them, everything has to be relative. Which is why it’s bizarre that their faith (pun intended) in “freedom of expression” runs into the absolute.

As to the relationship between the rights to free expression and religion, I’ve already discussed it in a previous BusinessWorld article (“Offending hate speakers,” October 2013) and won’t repeat the points here.

However, the importance of religion in people’s lives and as a human right should be reiterated: Stanford’s Michael W. McConnel describes it this way: “Religion is a special phenomenon, in part, because it plays such a wide variety of roles in human life.” There is no other human phenomenon that combines all of these aspects (e.g., institution, worldview, locus of community, an aspect of identity, provides answers to questions of ultimate reality, and offers a connection to the transcendent); “if there were such a concept, it would probably be viewed as a religion.”

Because religion indeed plays such a huge role in the human condition and identity, it constitutes a fundamental human right alongside which other rights are arrayed. Hence, though we adhere to the idea of free speech, nevertheless, reasonableness tells us that the exercise of such right (in fact, any right) has to be done in a manner that is respectful of other and of other’s rights.

The right to religion is also subjected to this dimension; hence, why the Islamic extremists who murdered the Charlie Hebdo staff are justly and correctly condemned. The same goes for Christian anti-abortion activists who murder doctors or nurses.

Progressives have it wrong: you don’t actually respect the religion, you respect people. And many people simply like their religion. That is reality. Just as nobody should maliciously, without reason, offend the feelings of a person for liking One Direction (utterly tempting and justifiable it may be), then all the more should you respect that person’s sensitivities when it comes to his identity and his belief about his Maker.

There’s one aspect, however, that must be emphasized: as we noted above, the progressives’ inability to definitively call Islamic terrorists as responsible.

Because to hold them to account requires a standard (which an act is said to violate that gives rise to the accountability). But as mentioned previously, progressives hate standards. And worse (for them), one quite identifiable source for a standard, which will inevitably invite comparison, is Christianity. But the idea that Christianity (particularly the Catholic Church, which opposes contraception, same-sex marriage, abortion, euthanasia, etc.) might actually possess possible solutions or even guidance is such an anathema to those on the Left that they will absolutely refuse to consider it at whatever cost. They’d rather have the world burn from global inaction against the terrorists just because something will not fit their narrative.

And the logic twisting goes to ridiculous lengths: Islamic extremists murder people and liberal media and academe go into hyper-drive in demanding “nuance” and “understanding”: that Muslims suffer more from terrorists or are forced to do acts not required of other faiths or have suffered historic wrongs stretching not only decades but millennia. But such are quite fallacious. Besides, the problem is not the Muslims. Or anyone’s religion. The problem is the Islamic extremists who kill, torture, or otherwise hurt people.

On the other hand, when a Christian simply writes or speaks about the faith’s doctrines on same-sex marriage, the entire liberal progressive establishment goes nuts: all of a sudden, absolutism is fine, particularly when it comes to free speech. And forget about nuance. One local newspaper columnist labeled “intolerant” the Philippine Catholic Bishops for simply pointing out a misquote on Pope Francis.

There is nothing reductionist about this: people really need to start approaching things with reason rather than ideology. Perhaps with that at least something constructive can be done.

Want inequality? Wreck the traditional family.

my Trade Tripper column in this weekend issue of BusinessWorld:

Amid the discussions regarding 2015’s ASEAN integration, certain data had been consistently ignored by the general academe and policy makers: 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%.

Quite simply, beyond economics, the very future of this country depends on how well that 70% is educated, developed, and formed.

But even just narrowing the discussion in economic terms, to state the obvious: a lot is dependent on people. A huge portion of our output or trade has to do with services, yes, but even then, manufacturing and agriculture would need people to run them. Nevertheless, despite the demographic potential that the Philippines has compared to the ageing populations of our trading partners, all of that would be meaningless if that youth would not grow up as responsible adults.

Unfortunately, our education system needs a lot of improvement. The “Times Higher Education World University Rankings 2014-2015” show no Philippine university included.

That is compounded by the fact that of the almost three million Filipinos currently unemployed, 48.2% are within the 15-24 age group, with 29.9% from those in the 25-34 age group. Most of them are high school graduates.

All these are not contributing to the proper formation of the youth. And yet, nothing could be more devastating to them than the weakening of the traditional family institution.

But unfortunately, teenage pregnancy in this country rose by 70% in the past 10-year period (114,205 in 1999 to 195,662 in 2009). Figures for 2010 show 206,574 of such pregnancies. Data from the National Youth Commission show that the Philippines is third highest in Southeast Asia and among the highest in the ASEAN region and the only country where that number is increasing.

Also disconcertingly, 13-14% of all registered marriages are among teenagers. On the other hand, perhaps not coincidentally, there is also a rise in annulment cases (records indicate a 100% increase in the past 10 years). Add to that the increasing incidences of rape.

However, not only is economic development retarded by the diminution of the traditional family institution, economic inequality is fostered as well.

According to Jeff Jacoby in a November 2014 article, “One report, aptly titled ‘For Richer, For Poorer,’ is by sociologist W. Bradford Wilcox of the American Enterprise Institute and economist Robert I. Lerman of the Urban Institute. It documents the profound links that connect family structure and financial well-being and underscores what decades of empirical data have shown: Families headed by married couples tend to be stronger economically than those headed by unwed single parents.”

“‘Anyone concerned about family inequality, men’s declining labor-force participation, and the vitality of the American dream should worry about the nation’s retreat from marriage,’ the authors write. The steady fall in the percentage of married two-parent households -- from 78% in 1980 to 66 % in 2012 -- goes a long way toward explaining why so many ordinary families have trouble climbing beyond the lower rungs on the economic ladder. Correlation isn’t proof of causation, of course. But there is no refuting the strong association between growing up with both parents in an intact family and achieving higher levels of education, work, and income as young adults.”

“To be sure, not all families headed by married parents are stable or successful, and not all children raised by single parents struggle economically or professionally. Barack Obama, who was two years old when he was abandoned by his father, is dramatic evidence of that. But as Obama himself says, the data aren’t in question. ‘Children who grow up without a father are more likely to live in poverty. They’re more likely to drop out of school. They’re more likely to wind up in prison.’”

The message was emphasized further by Aparna Mathur: “Wilcox and Lerman document how the shift away from marriage and traditional family structures has had important consequences for family incomes, and has been correlated with rising family-income inequality and declines in men’s labor force participation rates. Using data from the Current Population Survey, the authors find that between 1980 and 2012, median family income rose 30% for married parent families, for unmarried parents, family incomes rose only 14%.”

With such scientific and researched backing, then the media’s, academe’s, and policy makers’ wholesale effort to look the other way is truly the height of irresponsibility.

Dominated as they are by left-leaning “progressive” thought, the only thing that matters to them is to further ideologically driven policy initiatives such as divorce, same-sex marriage, the Reproductive Health Law, and euthanasia. Any evidence that shows the necessity to strengthen the traditional family institution simply does not fit their narrative.

Offending hate speakers

this is a repost of an October 2013 article for BusinessWorld:

Last week was full of statements calling for the unconstitutionality of Article 133 of the Revised Penal Code (Offending religious feelings). That such calls are reactionary and biased is to point out the obvious. The claims, however, were also based on fallacious reasoning and on assumptions that have no basis in or disregard reality.

We will ignore complaints that Article 133 violates Church/State separation for their utter obliviousness on what the concept really means. Also to be snubbed is that supremely asinine argument that Christians must forgive everything and forget about justice. That has never been the Catholic Church’s teaching. Forgiveness must always be coupled with justice.

Then there’s the dim-witted "Spanish-era" Article 133 is "antiquated" position. But by that "logic," the US Constitution and the Ten Commandments must be discarded as well.

Instead, we look at the argument that the foregoing provision is unconstitutional for conflicting with free speech. Such, however, ignores basic constitutional law: the right to free speech is not absolute. One cannot libel or slander people, commit vandalism to express opinions, display obscenities, falsely shout "fire" in crowded places. The point here is not to stifle dissent or contrasting ideas but to restrain speech that deliberately is meant to sow hate, violence, or intolerance.

The provision, as it’s currently viewed, has nothing theocratic about it. Neither is it meant to favor a specific religion. It simply acknowledges the fact that there are some things people feel strongly about. Hence, why crimes committed in another’s house or murdering one’s own family members, or assaulting teachers or public officials, have higher penalties. Considering today’s fears of terrorism, one can go to jail just by making a joke about bombs while inside an airport. That is why the Civil Code has a provision restraining rich people from flaunting their wealth in times of public want (see Article 25).

One incredibly bizarre argument recently made is that priests who speak against the RH law during Mass also offend the feelings of those who are pro-RH. But this ignores the constitutional right of the priest to religion and free speech, the constitutional right of the pro-RH individual to religion which includes the right to stop being a Catholic and not attend Mass, and the fact that what is being punished by our laws is not the contrary idea being expressed but the hateful, intolerant manner in which it is expressed.

Then there are people who argue that free speech shouldn’t come with restrictions. Such argument, again however, inanely disregards reality. And also quite hypocritical: I bet that any person who argues that, if confronted with someone who joins their family party and starts insulting them, causes a ruckus, makes them look silly in front of the cameras, and then posts pictures and smugly boasts about it in the Internet, would not hesitate to have the law fully enforced.

The other argument employed is why should religion be given distinct protection? If an Imam, it is argued, enters a gathering of atheists, disrupts proceedings, then why would that not be considered a crime? Actually, it is. On the top of my head, it could constitute qualified trespass, tumults, alarms, unjust vexation, or violating the right to peaceful assembly.

On the other hand, it’s also true that religion is given such protection because it is so fundamental, an inherent and self-evident inclination of people, that the right to religion is considered a primary human right that must be respected. Hence, this right to religious freedom is protected, not only by our Constitution, but also by international instruments such as the UN Declaration on Human Rights, the International Covenant on Civil and Political Rights, and the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief.

That is why many countries in the world aside from the Philippines penalize hate speech (i.e., speech vilifying persons on the basis of some characteristic like race or religion). Poland, Norway, Singapore, Thailand, South Africa, Canada, Germany, Denmark, amongst others, impose punishments for it. The European Court of Human Rights has consistently ruled against speech offending religious sensibilities and hate speech. Britain punishes hate speech that seeks to "stir up religious hatred."

The point here is: whether or not you believe in religion or agree with the doctrines of a religion, the reality remains that religion is something fundamental to most people’s identities and their conception of rights. This fact, like the attachment to the ideas of family or marriage (both definitely established human rights as well) is something that liberals, progressives, or leftists have puzzlingly been unable to comprehend. The plea for tolerance (correctly understood from the Latin tol -- to endure a burden) should never be understood to mean that people must shut up about their religious rights.

Simply put, there may be room for sloppy thinking in the public square but none at all for bullying and boorishness.