BRL: Bar Review Log – the series of journal entries I will be writing as I study for the 2017 bar exam. Call it catharsis or just the need to reflect and recollect – a respite from the laborious studying of the same subjects I have been studying for the past four years.
The other day, 26 June 2017, was my college graduation. The day before that was the university graduation. I had always been cautious about graduation ceremonies in law school. The reason is that it all seems so conditional. The bar exam would be in around four months and that decides in the end whether I will be a lawyer. Yet that cold shroud of indifference had not fully enveloped me then. As the speaker asked the graduates to turn around and face the audience, I caught the smiles of my parents and those were enough reasons for me to be happy.
After the whole ceremony, I could still feel the tenacious clutch of law school on my sleeves. Four years is quite some time and no one leaves Malcolm unscathed. Triumphs, defeats, betrayals, displays of loyalty, integrity, baseness — I have seen all that there. My four years was as much a study of the law as it was a study of human nature and its frailty. Several times I found myself mildly scandalized by the opinions and values I encountered in law school. I eventually realized that it pays to espouse the fashionable opinions of the day which usually consist in abolishing old ways for new ones. That being the case, it follows that references to classical education and philosophy often yielded to rehashed formulations from the activist authors of the day. Cicero, Madison, Plato, anyone?
The image of the desert just dawned on me — how the Israelites wandered around the desert for 40 years looking for the promised land. For me it was the other way around: I left the promised land and was now wandering the desert for 40 years in search of slavery. Ah bon, c’est la vie, n’est-ce pas?
And while I sit here typing a blog that no one will probably read. While I sit, haunted by the phantom of Malcolm Hall, I prepare to begin the long road to the 2017 bar. To begin.
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.
* * *
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.
So our very own
Joseph Goebbels Mocha Uson wrote a column lambasting the CBCP’s stance against the current administration in her column in the Philippine Star a few days ago. This one was something, so without further ado let’s take it line by line. Original text in bold, annotations are in italics.
Title: Is CBCP anti-Christ? (Catchy title though)
Christianity is founded on love. It espouses the doctrine of loving thy neighbor, not judging others, and forgiveness. (In two sentences she summarizes the whole of Christian theology. Did you see that St. Thomas?)
However, (uh oh, a ‘however’) the way the Philippine Catholic Church has been acting is the total opposite of what Christianity preaches (Yep because protesting against dictators encapsulates the whole of Church action). It refuses to forgive (Marcos burial issue). (Well, she just had to qualify it. I always thought the Church forgives people though and not issues. After all, issues don’t walk into confessionals, people do.) It judges Duterte but turns a blind eye on the immorality of De Lima. And it divides instead of unites. (Wait…immorality? Did she just judge De Lima right there? That escalated quickly. Since the author cites the Bible verses
when it’s convenient she must know that passage where Christ says he comes not to bring peace but the sword? [Mt 10:34] There’s hardly any credibility at all if the author claims that being divisive is a bad thing given how virtually all protesters are labeled as “yellows.”)
Why is this so? (ok let’s assume for now that all the conclusions you just made are now facts) Ever since the Spanish colonial period (oh she’s a historian now) in the Philippines, the Catholic Church has been a part of the lives of most Filipinos and it has also been very influential in our country. (and that’s how you summarize around 300 years in 32 words) The power of the Catholic Church is one of the things Jose Rizal fought against because the Church was able to use its power and influence in Spain to dictate who should be the Governor General of the Philippines. (Wasn’t Rizal a top student at Ateneo de Manila? He was Jesuit trained and wasn’t he a devout Catholic? And is there even a good source for this conclusion? But hey, let’s just believe her. Whatever.) Because of this they accused Jose Rizal of being a cultist and an enemy who was going against the teachings of the church (or was it rebellion and sedition? Meh, same thing as heresy right?). You should know that back then fighting against the church could cost you your life or you could be excommunicated. (Well she should know too that there’s a book by Reynaldo Ileto called Pasyon and Revolution because, I don’t know, maybe it might actually give the semblance of an idea of how the revolution happened back then. Oh and fighting against dictators can cost you your life too! Too bad dictators can’t make excommunications though.)
One of the notable persons who were excommunicated for fighting against the church was Martin Luther. (so is this theology or history? histology! wait that’s the study of microscopic tissue structures…) He fought against the corrupt practice where people must pay for the forgiveness of their sins and for their soul to go to heaven. (Inaccurate. They don’t pay for the forgiveness of sins. They pay for indulgences, which “is a remission before God of the temporal punishment due to sins whose guilt has already been forgiven…” [See Pope Paul VI’s Indulgentiarum doctrina] because, and the author should have researched more, saying sorry isn’t the end of it: people have to pay it back.) These are just some instances where the Church used its influence and abuse its power. The question now is, did it stop? (Can I make a guess? No?)
Looking back at EDSA 1, which forced the then Pres. Ferdinand Marcos to step down from power, Cardinal Sin (called it!) was one of those who greatly influenced the people and caused the inauguration of Cory Aquino as the 11th President of the Philippines. They (along with our P500 bill) created an image that presented the Aquinos as the savior of our country and therefore the people again trusted and voted Noynoy Aquino as their president and leader in the 2010 election even if he did nothing. (actually if she took time to read our Constitution, ‘doing something’ in general is not required to be qualified for the Presidency. Just saying.) They hoped that Noynoy would save this country once again. So, what would they gain by allying themselves with the Aquinos? Let’s not forget that the church is an organization wherein they have no tax. (Oh, how could we forget?! No tax? Despicable! Well, it’s actually real property tax and qualified revenues that they’re exempt from, not all taxes in general. But yet again, what’s the difference right?) Allegedly, (Congratulations on using ‘allegedly.’ With all those conclusions, here at least there is a semblance of caution with making claims.) they have investments from the oligarchs who are being protected by the Aquinos. In the end, it seems like it’s all about the money. Catholic Church without money is a dying church, (Well that explains it. That’s the reason why the Church had a mountain of gold when it started out as a group composed mainly of Galilean fishermen.) it has lost a lot of followers due to some issues surrounding some of their priests. (Don’t bother with the numbers or reports, we believe you!)
It’s just saddening to see that the church that is supposed to teach unconditional love is encouraging hate and anger toward a dead person. (Aww 😦 ) Yes, the Marcoses should be held liable for the crimes they have allegedly (there’s allegedly again! and how can one be held liable for an alleged crime?? Doesn’t make sense.) committed but that is the job for the government and not the Church’s. (It’s the government’s job to prosecute, there’s no argument against that. But is that the exclusive way to hold one liable for crimes? Surely public censure and assembly are ways to hold people liable too. Since she cites the Bible I wonder how she takes the verse that “whatever you bind on earth will be bound in heaven and whatever you loose on earth will be loosed in heaven.” [Mt 18:18]) The Church’s purpose should be teaching people about love for God and love for one another. (Good grief, have at least some sense of respect for an institution that has been around for nearly 2000 years.) It also says in the Bible, “Whoever does not love does not know God, because God is love” (1 john 4:8). Now if the very nature of God is love, (hey, she’s a theologian again) then why does his “messengers” preach the opposite which is hate and forgiving with conditions? (…check…mate?) If they will claim that they’re fighting for what is right, then why don’t they speak against Sen. De Lima and her affair with Ronnie Dayan who is married? (No “alleged” here huh? Well played. I believe you. Not really.) Why do they focus on the inappropriate jokes and remarks of President Duterte? Why do they bring up “Thou shall not kill” with regards to the “EJK” issue but quiet on De Lima’s affair which is against “Thou shall not commit adultery”? (I’m actually impressed she knows the commandments. She should try going on to the 8th.)
Last week, through my blog, I answered a post of a La Salle brother about forgiveness. He said: “FORGIVE THE MARCOSES? But how? They have not admitted to any wrongdoing. They have not returned all that they have stolen. They have not apologized to the victims of their martial rule.”
Now, should forgiveness come with a condition? (If you break a window and say sorry without fixing it. Is that really an apology? If you’re really sorry then you FIX the window. So the answer is yes. Authentic contrition requires restitution. I don’t know if she’s ever been in a confessional but I’d really like to know how she interprets the penance at the end. Well unless in her world, it’s really ok to break windows and say sorry while leaving the owners to clean up the mess left behind. Haha ok I’m convinced. Let’s go with that world!) If I ask you, do we have to wait for our enemies to ask for forgiveness before we forgive them? I believe that the answer is in Matthew 6: 14-15: “14 For if you forgive other people when they sin against you, your heavenly Father will also forgive you. 15: But if you do not forgive others their sins, your Father will not forgive your sins.” (I thought the issue was whether we should wait. The passage cited was the effects of forgiveness, not whether we should wait for an apology. Oh well.). If Jesus himself can forgive his enemies and even asked his Father “forgive them for they do not know what they are doing”…if Jesus himself can forgive regardless of whether they asked for it or not, then who are we to deny that to our enemies? (Oh I highly doubt that Marcos didn’t know what he was doing.)
In conclusion, it is also written in the scriptures that there are wolves in sheep’s clothing (“Watch out for false prophets. They come to you in sheep’s clothing, but inwardly they are ferocious wolves. Mt 7:15”). (Ok I remember that part) They claim to be messengers of God but they are teaching hate, rebellion and self-interest. (Er…that part I don’t remember) It is clearly stated that these False Prophets who have the spirit of anti-Christ are pretenders to be light and teaching things that are opposite of the teachings of Christ. (Is it stated clearly enough for a quotation? Guess not.) The question is: if the False Prophets preach hate and rebellion and not love, what does the CBCP and some other priests teach? Love, forgiveness, or hate? (Ok she just called the CBCP false prophets and titled her column asking if the CBCP is the anti-Christ. Seriously, if there’s any hatemonger here it’s the author who presumes to know more about Church teaching than the Church herself.)
Looking back I don’t think there was any added value in making this blog entry. I might have wasted a few hours in an afternoon but hey let’s say this is my fair comment on matters of public interest.