June 11, 2019
ONE of the most misunderstood provisions in the Constitution is the one that commands the state not to interfere in the free exercise of religion, which by implication would also include the prohibition on the state to discriminate against or to favor a particular religion. Specifically, Section 5 of Article III, or the “Bill of Rights,” of the 1987 Constitution explicitly states 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.”
Many have used this provision to posit what has been termed as the separation doctrine, and extend the interpretation to argue that the Church, or any kind of religion, is prohibited from all kinds of political activity, that would include even the mere articulation of a political opinion. This is a serious misreading of Section 5 of the Bill of Rights. Nowhere in the Constitution is it stipulated that adherence to a particular faith, or that membership or leadership in a particular religion, would amount to a suspension of the exercise of a political right. If at all, the state ends up making exceptions in laws on marriage or on military service, or even on reproductive health, just to ensure that there would be no infringement on the free exercise of faith.
If there is any prohibition, it is for the state not to discriminate against, or give preferential treatment in favor of, a particular religion. After all, and as the theory of liberal democracy stipulates, all constitutions are embodiments of restrictions on the rights and powers of the state vis-à-vis the rights of individual citizens.
President Rodrigo Duterte has been very vocal against many Catholic bishops and priests, accusing them of political interference when they criticize his policies and actions. He charges them with violating the doctrine of the separation of church and state. While the President is well within his constitutionally guaranteed right to free speech in calling out the Church hierarchy, his premise is wrong. Priests and bishops retain their right to free speech, and are only limited by the laws on libel and slander, and by their own internal church norms. There is no constitutional provision violated when a priest uses his homily to openly criticize social and political policy, or when a religious organization is engaged in social activism.
For his part, the President is also protected by the Constitution when he openly criticizes the Roman Catholic Church, as long as this does not find its way into actual discriminatory acts, or that he doesn’t issue executive orders that interfere with the private exercise of religion by Catholics.
What is also not protected by the Constitution is when the state uses public funds for the private exercise of any religion. This is because the limits of state power in relation to the free exercise of religion also necessarily manifests in how it disposes of public funds. Section 29, Article VI of the Constitution clearly states that: “(2) 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, 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.” This provision is consistent with Section 5 of the Bill of Rights, where the state is prohibited from giving preference to a particular religion.
It is in this context that the President may have asked the Commission on Audit to violate not only the law, but also the Constitution when he sought for the non-disallowance of the P5 million supposedly earmarked for the rehabilitation of Marawi, that was instead used to finance the travel of some persons to the Middle East in connection with their private exercise of their religious obligations. This is not only technical malversation that is prohibited by law, but is in fact a blatant violation of Section 29, Article VI of the Constitution.
The biblical roots of the separation doctrine lie in the adage of giving to Caesar what is Caesar’s, and to God what is God’s. Modern constitutions have restated this to become the backbone of secularism. The Philippines is a secular state. Our government is prohibited from discriminating against, or giving undue preference to, any particular faith, religion or sect. Thus, the Constitution prohibits Caesar from giving favors to God. Taxes are what citizens owe to Caesar, and Caesar could not give what it receives to any church or religion.
The President admits that the Davao City government when he was still mayor had allowed public funds to be spent to finance the pilgrimage of some of its Muslim residents. He also appears to suggest that such practice has been continued under Mayor Sara Duterte. It is also revealed that the President even wishes that the budget for the travel subsidies should be increased so that more can benefit.
But the letter of the law and the Constitution are clear. The integrity of the republic is undermined when we implement this selectively. There is no justification when we jail for technical malversation someone who spends public funds to buy ambulances even if it benefits the people, if this is not the intended purpose of the money, and then suspend not only the application of the law, but even the Constitution, simply because it is the wish of the President. It is the duty of every supporter of the President to call this out.
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