It has been quite a while since I last posted in this blog. But this being the first month (barely) of a new year, I think it’s a good time to attempt to resume posting regularly.
Allow me to start with the text — and video! — of a lecture I gave last year at “Beyond 2010: Leadership, Public Administration and Governance,” an academic congress at the University of the Philippines intended to discuss key issues that would confront the (then) new administration to be voted into office in the May 2010 elections.
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Decontextualized Principles and the Myth of the Secular State
The principle of “separation of Church and State” is a mantra of near (pardon the pun) religious significance in our Constitutional order. Enshrined in Article II, Section 6 of the Constitution, which provides that “[the] separation of Church and State shall be inviolable,” it appears to establish, in clearest and most definitive of terms, an uninfringeable line between matters pertaining to religion, and matters pertaining to an avowedly secular government.
The extent of this “separation” is further expounded upon in Article III, or the Bill of Rights. In Section 5 it is provided that –
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.
This provision encapsulates what are known as the “free exercise” and “Establishment” clauses. “Free exercise” is a guarantee against State interference in, and, in the extreme, suppression of religious practice of individuals. It promotes the principle of religious pluralism, where individuals are at liberty to worship in the manner they please, or even to choose not to worship at all. The “Establishment” clause, on the other hand, prevents the State from giving official sanction to a particular religious belief or denomination; in other words, the “establishment” of a state-sponsored religion.
Taken together, these three basic Constitutional principles – separation, free exercise, and Establishment – lay the foundation, at least theoretically, for the secular Philippine State.
But is the Philippine State truly secular? Conventional wisdom, and even simple, casual observation, would seem to indicate a contrary conclusion. God, religion, and the ubiquitous images of Mary and the various saints, are indispensable features of everyday life in our country – even the part of that life that supposedly falls within the avowedly secular sphere of the government and the State. Hence we have small shrines to Mary and the saints in government offices, opening prayers at government sponsored public events, and a President who claims to make political decisions based on God’s guidance.
This contradiction, however, is not a recent phenomenon. Nor is it, unfortunately, confined to what some might be tempted to dismiss as trivial deviations from what is otherwise a firmly upheld Constitutional standard.
When the Malolos Constitution was adopted by the fledgling Philippine Revolutionary Government in 1899, it included a provision recognizing “the freedom and equality of all religions, as well as the separation of the Church and the State.” (Dean Raul Pangalangan, in an article in the Philippine Law Journal, notes the irony that this adoption took place in a Church) This provision however passed only by the narrowest of margins, a 26-25 vote in the Malolos Congress. Subsequently, even this barely won concession to secularism was set aside upon the advice of Apolinario Mabini – adviser to President Emilio Aguinaldo and a well-known liberal and progressive – who felt that the provision should be suspended to avoid the “divisive effect” it would have on the Republic which at the time was facing war.
This brief historical vignette underscores the difficulty in institutionalizing pro-secularist principles in the context of the Philippine society and culture. Separation of Church and State, free exercise of religion, and the Establishment clause are concepts borrowed largely from the liberal tradition of the United States and Western Europe. These concepts, however, arose in a specific socio-historical context – the ascendancy of reason as against superstition, the emphasis on individual liberty as against institutional authority, the rejection of the infallibility and “God-given” authority of the Church. They were reflections of the thoughts and ideas of, if not the societies, then at least the dominant political actors of the time.
In contrast, there was no similar social or cultural foundation among the decision makers of the Malolos Congress, much less in the general populace. By and large, revolutionary rage was vented on corrupt Spanish friars (the Padre Salvis and Damasos of Rizal) and not against the institution or beliefs of the Roman Catholic Church. Individual liberty, to a large extent, was still very much subject, if not subsumed, to the demands of family, community, and other social institutions. The notion of a “free-agency” of religious belief – where one could pick and choose one’s religion at leisure, discarding one, picking up another, or choosing to go completely without, was virtually non-existent. Instead, Filipinos were expected to live and die in the arms of the faith into which they had been baptized, which for the vast majority, was Roman Catholicism.
It is thus not surprising that these secularist principles, decontextualized from their societies of origin, would have difficulty achieving widespread acceptance and faithful (again, pardon the pun) compliance.
The contradictions brought about by decontextualization have also led to contradictions within the legal framework itself. While the Constitution formally mandates the observance of the general principles of separation, free exercise, and non-establishment of religion, other parts of the same document flout these general rules and create zones of exception.
One of the most obvious is in the grant of tax exemptions to religious organizations. Article VI, Section 28(3) provides that –
Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.
This in effect creates a State subsidy – in the form of a tax break – for religious, charitable, and educational institutions. Put another way, it lets other taxpayers – you and I, for example – assume the burden for these institutions. While it may be understandable that charitable or educational institutions may be given this subsidy – after all, they are, at least arguably, performing functions in the nature of “public service” that the State would otherwise have to devote resources to – it boggles the mind how and why religious organizations should fall in the same category. Religious services cannot be construed as “public service” if, for nothing else, because of the Establishment clause, and yet that is precisely what we have here.
In a similar vein, Article VI, Section 29(2) provides –
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.
While the first part of this provision is clearly consistent with the Establishment clause, the latter part creates an exception where public funds may in fact be paid out to religious professionals – that is when they are assigned to armed forces, penal institutions, orphanages, or leprosariums. The question that must be asked is, why? Simply, because the persons in these establishments are more readily confronted with hardship, suffering, and the possibility of imminent death? That being so, why must it necessarily follow that in such cases the response is for the State to fund the provision of a religious means to provide some form of comfort? If religion is essentially a private (read: non-state) undertaking, why must the State spend for under any circumstances?
There are other examples – for instance the “option” to have religious instruction in public schools in Article XIV, Section 3, and the “anti-abortion” clause in Article II, Section 12. The first allows for religious teaching at the option of parents, even without the confines of State-established, State-run, State-funded public schools. The “anti-abortion” clause, on the other hand, mandates a perpetual Constitutional ban on abortion – a prohibition that many will argue is not based on scientific or human rights-based considerations but simply on the doctrinal bias of a specific religion. The ultimate point is that despite the formal adoption of secularist principles, the Constitution itself provides for a not inconsequential number of deviations from what is supposedly a cardinal foundation of our concept of government.
But apart from these internal contradictions in the law itself, the more glaring and apparent contradiction, as already mentioned earlier, lies in the variance between black letter law and actual practice.
One of the obvious examples is found in Article 133 of the Revised Penal Code which punishes the crime of “offending religious feelings.” This provision states that –
The penalty of arresto mayor in its maximum period to prisión correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful.
This very clearly elevates the concerns of a particular religion to the level of State-interest. The absurdity of the provision is readily seen in court decisions attempting to apply it, in the process grappling with a “legal” way of construing what exactly would be “notoriously offensive to the feelings of the faithful.” The result is inevitably a supposedly secular court, composed of supposedly secular magistrates, sifting through religious dogma to determine what would be “offensive” thereto.
In a similar vein, take the case of the party-list elections, where under the Constitution –
The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.
Despite this express prohibition against the participation of religious groups, it is an open secret that numerous party-list groups – including the top vote getter in the 2007 elections – are barely disguised fronts for religious organizations.
More recently, the case of Ang Ladlad similarly underscores the intense influence religious precepts have on supposedly secular, religiously-neutral law.
In the original decision of the Commission on Elections Second Division denying accreditation to Ang Ladlad, a party list organization representing lesbian, gay, bisexual, and transgendered (LGBT) persons, they cited Article 201 of the Revised Penal Code, which punishes “Those who shall publicly expound or proclaim doctrines openly contrary to public morals.” Despite the textually neutral formulation of the provision, the COMELEC managed to slip in religious dogma by using it to construe “public morals.” Citing verses from the bible and Koran, and quoting a 1960s American Christian evangelist, the decision proclaimed that Ang Ladlad “apparently advocates sexual immorality” as it condoned consensual partnerships between persons of the same sex, and as such, should be deemed as violating Article 201 of the Revised Penal Code.
This conclusion, of course, can only be made possible by equating the supposedly secular concept of “public morals” with the tenets of a particular faith – in this case the Christian and Muslim religions both of which have certain fundamentalist doctrines against homosexuality per se. What is even more alarming is that, from the tone of the decision, the election commissioners concerned did not even seem to be aware that they were slipping religious considerations into secular law – they simply assumed that public morals should necessarily be sourced from religious tenets.
Really, the indications are all around us. For how can we really believe in a secular Philippine state when everyday we are confronted with the overlap of government and religion? In the words of my friend and colleague in the faculty of law, Professor Florin Hilbay in an article on the Establishment clause –
Is there a place for secular constitutionalism in a place where the Supreme Court distributes “ecumenical prayers” and allows the holding of Catholic masses in its main session hall, where politicians regularly invoke God as the source of everything they do and what happens to them, where public school teachers pray and post religious icons in their classrooms, where public airports display statues of Mary the supposedly-virgin mother of Christ, where the main campus of the University of the Philippines is the site of the Church of the Holy Sacrifice, where government institutions decorate their buildings and offices with Christ-mas trees and nativity scenes, where most public holidays are Christian holidays, where divorce and abortion are banned, where religious organizations endorse candidates for public office, where religious organizations obtain money from government, where the Catholic Bishops Conference of the Philippines gets to say whether the President ought to be impeached, where towns and villages are regularly named after saints, where revolting includes trooping to a Catholic church in EDSA?
The point then, ultimately, is that we cannot rely on formal rules establishing a secular state, transplanted, decontextualized, and cut-and-pasted into our own unique milieu, and expect that they will be sufficient, by themselves to end centuries worth of entanglements between the State and the religion. In the end, a secular state must be built from the ground up, and will not arise by simple Constitutional fiat.
Posted by Barry Gutierrez 
A Heap of Broken Images 