Comments on HB3312
There are probably two ways how Pedro can win an argument. One way is for Pedro to convince the other on the merits of his position, with the ultimate end of producing a consensus. The other way is for Pedro to speak his position, and before Juan can start, say Juan is stupid, walk out of the room, and declare himself the winner. Some time ago I found a tweet that said that there is no rational reason to oppose an Anti-Discrimination Bill. Now, it must take a certain form of hubris for one to draw the limits of rationality so nonchalantly. When persons refuse to listen, expect obedience, and label all opposition as irrational, what we have is not a world of progress, but sheer dogmatism. This blog is merely an inquiry: if support for that Anti-Discrimination Bill is rational while dissent is irrational, it might be worth a minute to examine exactly how rational it is. Because some of us at least would like to hear the other side.
House Bill No. 3312 is an Anti-Discrimination Bill endorsed by 17 members of Congress. Essentially the Bill, in its current form, seeks to (1) define discrimination and impose (2) punitive and (3) preventive measures to combat it. The bill seeks to impose certain negative obligations (obligations not to do) on public and private individuals. In other words, it imposes an obligation on individuals not to discriminate on the basis of certain grounds provided for in the law and penalizes noncompliance with imprisonment (just two to six years or even six to twelve [!]) and/or a fine (just P100,000 to P250,000 to P500,000 [!]). Below are some notes on the bill.
The public and private distinction is gone
The explanatory note mentioned two State policies: (1) that the State values the dignity of every human person and guarantees the full respect for human rights and (2) the duty of the State to ensure the fundamental equality before the law of women and men. Equal protection clause is also invoked: “x x x nor shall any person be denied the equal protection of the laws.”
These state policies are generally guidelines that we, the people, impose on the State towards its citizens. The Bill of Rights is a document that guards individuals against the abuses of the State, hence it refers to prohibitions on the State’s legislative power with the words, “No law shall…”(e.g. the equal protection clause itself refers to “the laws”). That is the reason why mall security guards do not need a search warrant to look into someone’s bags or that evidence illegally seized by private individuals can be used in court, unlike those illegally seized by the police. Now, this bill is interesting in that it imposes that duty of the State on ordinary private individuals. In our liberal, democratic framework, there is a clear distinction between private individuals and public officers. Is this bill saying that private individuals are now public officers to carry out the policies of the State? If private persons can violate your right against unlawful searches and seizures, why then should private persons fall under this obligation?
Invoking provisions from the Bill of Rights against private individuals is not proper, unless of course we are willing to concede that private individuals perform sovereign functions (but wouldn’t that be fun?). The freedom to contract, for example, or the principle of delectus personae in forming partnerships, or any fiduciary relationship entails some form of discrimination based on a person’s qualities. A private individual is perfectly within his right to refuse to contract with another on the basis of good looks, body odor, or intelligence. A man may validly refuse to enter into a contract with another if he believes the latter is a scoundrel, or simply because he smells bad, is ugly, or is dumb as a rock. Generally, there is no obligation to enter into a contract with another; otherwise it would be almost akin to involuntary servitude.
Fundamental equality before the law of women and men?
It’s interesting that the explanatory note cited this State policy since it invokes the binary perspective on gender. So should we deny persons who are neither women nor men fundamental equality before the law? Perhaps that wasn’t what the framers were thinking. Note also the clause “before the law” and the distinction between public and private spheres.
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Before anything else: is all discrimination unlawful? The word is thrown about so many times in the document and in media that it has veritably turned into a Pavlovian invocation of social justice to its proponents. The definition of discrimination in Section 3(b) lists definite grounds but then there’s that clause, “or other status” and there is also that clause in Section 5(k) that punishes “other analogous circumstances – any analogous acts which have the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise of the person’s human rights and fundamental freedoms are also prohibited.” (NOTE: This catch-all clause also happens to be punishable by imprisonment of 6-12 YEARS – the same penalty as homicide! – and/or a fine of P250,000 to P500,000) Does that mean that I can’t discriminate based on looks, smell, intelligence, or even the sound of one’s voice? It’s also worthwhile to consider two freedoms that give us the right to discriminate – freedom of association and freedom to contract. In partnerships, for example, the principle of delectus personae literally means selecting people and being associated with the people one chooses. How does this bill square with these other freedoms? It gets even more complicated when religious beliefs get in the picture.
At any rate, the bill defines discrimination as: “x x x any distinction, exclusion, restriction, or preference, or other differential treatment that is directly or indirectly based on ethnicity, race, religion or belief, sex, gender, sexual orientation, gender identity, gender expression, disability, HIV status, or other status, which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of political, civil, economic, social, and cultural rights. Discrimination, which also includes incitement to discriminate and harassment, is a result or a product of stigma.” (Sec. 3[b])
Note: “Stigma” is “the dynamic process of devaluation that significantly discredits an individual in the eyes of others. When stigma is acted upon, the result is discrimination.” (Sec. 3[m])
The provision distinguishes itself as one that is as broad as it is convoluted. At any rate, it has the following elements:
- First it speaks of an act, i.e. “any distinction, exclusion, restriction, or preference, or other differential treatment.” (DERP+ for brevity)
- Second, there is the first qualification of the act: “that is directly or indirectly based on ethnicity, race, religion or belief, sex, gender, sexual orientation, gender identity, gender expression, disability, HIV status, or other status.”
- Third, there is the second qualification: “which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of political, civil, economic, social, and cultural rights.”
There is also a rider: “Discrimination, which also includes incitement to discriminate and harassment, is a result or a product of stigma.”
First element: the act (DERP+)
The catch-all clause “or other differential treatment” requires elaboration, lest we penalize the sneezing in the general direction of a protected class. Without bringing in the qualifications, we can appreciate the sheer scope of the provision in that it virtually covers every human interaction based on another person’s different human traits.
I can’t help but wonder as to the kind of “person” being described as the subject of the equality visualized here. We befriend people mainly because of those characteristics we find desirable, and not merely because he is a fellow member of the human species. What is a person without his specific and identifiable traits? Every day we make choices among things and people – are those choices now going to be scrutinized by law? It appears that for equality to be fully realized, it would be preferable to treat everyone as if they were some kind of Cartesian ego of disembodied existence. What’s in a name, right?
Second element: to be directly or indirectly based on…
The act must be based on a specific ground. My first inclination would be to consider this as part of the element of intent. However, this interpretation may be unwarranted from a reading of the third part of the provision, which uses the word “or” to refer to “intent or effect.” This means that the actor need not even know he is discriminating against a “vulnerable community” to be considered a bigoted, intolerant bastard so long as the effect is manifested. Therefore, it would be a mistake to say that the basis of the act is solely intent.
Still, the bill uses the word, “based on.” So what does it mean? Who is to determine the basis of the act? We have three options: (1) the actor, (2) the victim, and (3) the courts. The actor is out of the picture since he could be violating the law even without intending to do so. If the victim determines the basis, the actor is placed entirely in the mercy of the victim (but who cares right? He’s the oppressor! He deserves to suffer!). Then we have the courts, which still have to formulate an elaborate test only after probably 10 years of appellate procedure.
Third element: with the intent or effect…
The act must have the intent or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of political, civil, economic, social, and cultural rights. The most fascinating word in the clause is really the “or” since it forces us to conceptualize the act done (1) with intent but without the effect or an act done (2) without intent but with the effect. The provision then covers the actual bigots who do not effectively harm these “vulnerable communities” as well as those who are not actually bigoted but effectively act in a way that harms them.
The disjunctive use of “or” is bizarre to me since bigotry has always been defined as some form of prejudice (literally pre [in advance] judice [of judgment]) and which begins essentially in the mind. Here, won’t sending someone to possibly 12 years of jail time even without any malicious intent on his part create the same resentment that the bill is seeking to prevent? Six to twelve years is reclusion temporal which is the same penalty as homicide!
The rider: incitement to discrimination and harassment?
Is this effectively a content-based speech regulation?
All in all, the bill raises many questions that some of its proponents are all too willing to dismiss outright. If this is indeed considered as the “rational” position, then the proponents should have no problem in supplying the answers. Essentially, however, this bill is introducing this: that a vulnerable group can wield state power to coerce (yes I consider the threat of 12 years in prison as quite coercive) society at large, private individuals.
We see quite clearly the limits of tolerance in society today. The bill marches to the tune of tolerance, yet considers the intolerant as criminals who must be incarcerated. It is curious indeed how much intolerance can be licensed in the name of tolerance. The sheer breadth of application of the bill’s provisions should already put any law abiding citizen on guard and to label concern for such issue as irrational is not argument, but plain totalitarianism.