Tuesday, July 6, 2010

The Non-Establishment Clause in the Debate in the Reproductive Health Bill

By Elpidio Peria
           The Reproductive Health Bill (RHB) has encountered stiff opposition from religious groups, specifically the Roman Catholic Church (RCC), thus hindering its passage in the 14th Congress of the Republic of the Philippines. With the incoming 15th Congress set to resume its session this 26 July, there is guarded optimism among its advocates that this Bill will advance in the legislative mill, and inevitably hurdle all debates in and out of the halls of Congress, until it will finally be passed.
            Now, to prepare for the lengthy debates ahead, would it be possible to argue that this stiff opposition to the Bill by the RCC on moral grounds is tantamount to a violation of the non-establishment clause of the 1987 Constitution ? If the bill  is not passed, and the main reason for its non-approval is due to the fact that the arguments of the RCC has prevailed, then in effect, what has been made State policy is the view of the RCC,  which is not to have that bill passed. This is tantamount to establishing  the view of one religion over another, and given the fact that other religious groups in the country, from the Iglesia, UCCP, and even the Muslims are in favor of the RHB, clearly the non-establishment clause has been violated.
            Of course, advocates of the RHB kept on insisting on the constitutional principle of the separation of the  Church and State[1], but it seems they have not been that assertive about its operative mechanisms, the clauses on the free exercise of religion and the non-establishment of religion. This latter principle, also called the   non-establishment clause,  is also a constitutional command, with even more operative  force, as it is found in the Bill of Rights, which protects individuals from the great powers of the State while laying down specific obligations on what the State may not do to the individuals comprising the Philippine polity.
            Fr. Joaquin Bernas[2], S.J., has this to say about the non-establishment clause which is found in sec. 5 of the 1987 Constitution[3] :
            xxx..what non-establishment calls for is government neutrality in religious matters. Such             government neutrality may be summarized in four general propositions :
(1)   Government must not prefer one religion over another or religion over irreligion because such preference would violate voluntarism and breed dissension;
(2)   government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension;
(3)   Government action must not aid religion because this too can violate voluntarism and breed interfaith dissension;
(4)   Government action must not result in excessive entanglement with religion because this too can violate voluntarism and breed interfaith dissension.
            He also talked about the two values that the non-establishment  clause seeks to protect, which is voluntarism and the insulation of the political process from interfaith dissension.
            According to Fr. Bernas, voluntarism as a value is both personal and social. As a personal value, it is nothing more than the inviolability of the human conscience which is also protected by the free exercise clause. As a social value, it means that the growth of a religious group as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process  is insulated from religion and unless religion is insulated from politics.
            Interfaith dissension apparently refers to the State not taking any action that will promote religious discord or disharmony.
            In its essence, the non-establishment clause is government neutrality in religious matters. Neutrality here means, as Fr. Bernas already stated,  that : :
-        the government will not prefer one religion over another;
-        government funds will not be applied for religious purposes; 
-        government actions must not aid religion; and
-        government actions must not result in excessive entanglement with religion.
            Applying this to the debates in the RHB, it can be stated that, should the RCC bishops express a view against the RHB on the ground that it is against the teachings of the RCC, then all these aspects of government neutrality over religious matters  is violated.
            This is because if legislators agree to that kind of view of the RCC, the State has already preferred the view of the RCC over that of the other groups, which is tantamount to preferring one religion over another;   this stance of pro-life legislators must be respected as a matter of the free exercise of their religion but for it to be made state policy is tantamount to  aiding the view of the RCC  when the principle states that government action must not aid religion; this also results in government action being excessively entangled with religion.
            The  matter of government funds not being applied for religious purposes may not have any bearing in this discussion, but it can be argued that the current funding for a policy of providing materials on family planning at the LGU level is somehow applying the funds in pursuit of a religious purpose which is not to have any policy on reproductive health. This argument though needs further reworking and hopefully, further discussion should illuminate how it actually is violated in practice with the way things are at present, especially in matters relating to population development and policy.     
            Ultimately, the essence of the RHB is the right of the woman to decide what to do with her own body, in an exercise of her rights as a woman. It is also a developmental policy issue, how would the Philippines develop as a nation given its current state of resources, limitations and endowments. In all of these concerns, the Roman Catholic Church as well as other churches in the Philippines, can have a say on what their church-goers may do, and in the free exercise of their religion, the State cannot, and should not, interfere. However, the views of these religious groups should not be made into a State policy or a state policy should not contain any of these views as state policy is for all religious groups, even to those who don't profess to have any religions. It is certain that the Philippines, being a free and democratic society, will have its own share of religious skeptics and agnostics, even atheists, even if they may not be as vocal as the religious fanatics of all stripes, and all of them are entitled  to a State policy where no religious group is favored. This  is what the non-establishment clause should be about.
            Perhaps to state this as an expression of principle in the RHB, it may be stated thus:
            The State policy on reproductive health shall respect the  non-establishment clause of the 1987 Constitution. 

[1]    This is a distinct Constitutional principle found in sec. 6, Article II, Declaration of Principles and State Policies. The non-establishment clause is part of the Bill of Rights, in Article III, sec. 5, of the 1987 Constitution.
[2]    Bernas, Joaquin G.,  The 1987 Constitution of the Philippines : A Commentary, 1996 edition, Rex Book Store, Manila
[3]    Sec. 5 reads : 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 and preference, shall forever be allowed. No religious test shall be required for the exercise of civil and political rights.
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