To the Comelec: Shut down The Manila Times

Promulgated last February 4, Commission on Elections (Comelec) Resolution No. 8758, which sets down the implementing rules and regulations of the long-dormant Republic Act No. 9006, also known as the Fair Election Act, has triggered a veritable firestorm of protests, primarily because of Section 36, which is quoted in full below:

Any mass media columnist, commentator, announcer, reporter, on-air correspondent, or personality who is a candidate for any elective public office, or is a campaign volunteer for or employed or retained in any capacity by any candidate, political party, or party-list group, or organization, and/or coalition thereof, shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period; Provided, that after he has filed his certificate of candidacy but before the campaign period, it shall be his obligation not to use his media work for premature election campaign or partisan political activity: Provided, finally, that any media practitioner who is an official of a political party or a member of the campaign staff of a candidate, political party, or party-list group, organization, and/or coalition thereof, shall not use his/her time or space to favor any candidate, political party, or party-list group, organization, and/or coalition thereof;

As sociologist Randy David pointed out in his Philippine Daily Inquirer column, the law, whatever its merits, is highly ambiguous, as “it is trying to cover in one paragraph a broad range of individuals and activities that are qualitatively different from one another“. How, for instance, is “campaign volunteer” to be defined? What about “mass media personality”? Does the law apply both to talents and to regular employees (the position taken by GMA-7), or just regular employees (the interpretation favored by ABS-CBN)? (More details on the reactions of the TV networks and individual celebrities may be found here.)

Compounding the confusion is the lack of consensus among the Comelec commissioners themselves, as revealed in the Philippine Star: Rene Sarmiento said that the law generally applies to politicians who are themselves involved in showbiz, Gregorio Larrazabal claimed that a close examination of the law would show that media personalities are not actually required to take a leave, and Nicodemo Ferrer declared that the poll body would come up with (additional?) rules for the purpose of clarification.

Amid this morass of conflicting opinions, it is of interest to note that, among the various political camps, the ruling party, Lakas-Kampi CMD, is alone in its approval of the Comelec resolution. Prospero Pichay, the campaign manager for the senatorial candidates of the administration, stated that the playing field would now be level as far as television was concerned, while Department of Interior and Local Government (DILG) secretary Ronaldo Puno took it one step further, saying that such a leveling would favor Gilbert Teodoro, who has been faring miserably in the presidential race, if the periodic surveys of the electorate are any indication.

It is undeniable that Teodoro has few celebrity endorsers—a consequence of the copyright infringement brouhaha involving former Rivermaya front-man Rico Blanco, perhaps?—but Pichay, Puno, and their ilk would do well to remember that their candidate enjoys the signal privilege of being practically endorsed by a nationally distributed broadsheet, The Manila Times, in its editorials. This means that the administration candidate is not supported merely by a columnist or two, which is the case for other candidates, but by an entire publication that reaches hundreds of thousands of readers daily.

As early as October of last year, in the wake of Ondoy, the Times hailed Teodoro, then secretary of the Department of National Defense (DND) and head of the National Disaster Coordinating Council (NDCC), for “an excellent job coordinating the rescue and relief efforts”, describing the disaster as a test that Teodoro passed “with grace and humility”. (I have shown elsewhere—and, to my mind, very convincingly—how preposterous such claims are.)

In December, the newspaper once more sung the praises of Teodoro:

Teodoro is a welcome presence in the political arena. Humble and self effacing, he speaks in measured and moderate tones. Foregoing bombast and oratory, he delivers well-organized, well-reasoned thoughts and statements on the issues. He refuses to stoop to personalities and mudslinging, preferring to speak on the issues, policies and the nitty-gritty of good governance.

If we read his mind, Teodoro could become the first bipartisan president in Philippine history. He could walk across the aisles to enlist the best minds in the opposition to join his government. He will cast a wider net to recruit nonparty members who share his core values and passion for public service.

Teodoro could also reach out to promising young men, women, ethnic leaders and reformed communists to join his government. He might make history by appointing naturalized Filipinos as key Palace aides. A Cabinet, after all, must be a mirror of the nation. It should include the principal members of the national family.

A government under President Teodoro could seek -peace with the communists and put an end to the New People’s Army insurgency. The next Malacañang resident could exert efforts to sign a peace agreement with the Moro Islamic Liberation Front. President Teodoro will pursue a dialogue with all restive members of society—the rightists, the left-of-center and Church activists—in the name of reconciliation. But he will draw the line on terrorism and the Abu Sayyaf predators.

To give a final example, just last month, the Times seized upon a pastoral statement of the Catholic Bishops’ Conference of the Philippines (CBCP) and turned it into an opportunity to fawn over Teodoro yet again:

Gilbert Teodoro is “winnable” even if current surveys do not indicate so. His ratings have risen in recent weeks and should pick up as the campaign formally starts and as more Filipinos get to know more about his integrity, character and competitive edge over his opponents.

Our fate is not in the stars or in the surveys but in ourselves—this is the message of the CBCP pastoral letter. By voting wisely, we get the President we deserve, the leader we need.

That the Times has all but explicitly announced that it backs Teodoro should be no surprise, of course, as it is owned by Dante A. Ang, formerly personal publicist to President Gloria Macapagal-Arroyo, and currently a member of Cabinet, serving as the chairman of the Commission on Filipinos Overseas.

Notwithstanding the bewilderment and outrage that Resolution No. 8758 has caused, the Comelec seems determined to enforce it immediately and to the letter, considering that legal division chief Ferdinand Rafanan has threatened to file criminal cases against celebrities who endorse any candidate during the official campaign period but fail to take a leave of absence or resign from their jobs. If the Comelec wishes to demonstrate that it is serious about the implementation of the resolution, however shaky the legal grounds, then it could do no better than order The Manila Times to shut down. Should it fail to do so, but insist on cracking down on other entities and individuals, the Comelec will only reinforce the already prevalent perception that it is not, in fact, an independent body, but merely one of the many playthings at the disposal of our hardworking and prayerful iconoclast of a president.

[This also appears in Filipino Voices.]

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The moral bankruptcy of the COMELEC

In an eight-page resolution dated November 11, 2009, the Second Division of the Commission on Elections (COMELEC), composed of commissioners Nicodemeo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph, dismissed the petition of Ang Ladlad LGBT Party to be accredited under the party-list system of represention. The dismissal was based on the following: that Ang Ladlad, in seeking to represent the Filipino lesbian, gay, bisexual, and transgender community, advocated sexual immortality, which is offensive to Christian and Muslim beliefs, and violative of Article 201 of the Revised Penal Code of the Philippines; that, therefore, the organization had been untruthful when in stating that neither it nor any of its nominees had failed to comply with any laws, rules, or regulations relating to the elections; and that, finally, the state is duty-bound to protect the youth from moral and spiritual degradation, as provided for in Article II, Section 13 of the 1987 Constitution, and granting the petition would mean exposing young people to an environment that does not conform “to the teachings of our faith” [emphasis added]. (Sass Rogando Sasot of Rainbow Bloggers adapts this letter to fit the current situation and shows how absurd such teachings, which in any case do not bind everyone, can be, when taken too far.)

Variously described as “bigoted, homophobic, and medieval“, “theocratic“, and “nothing short of chaka“, the decision evinces only the most perfunctory of efforts on the part of the commissioners to find purchase in law, as they derived their concept of immorality from the Bible and from the Koran—or, more accurately, from online sources that cited the Bible and the Koran, which is indicative of how little rigor and seriousness the commissioners applied to the matter. That they then quoted the Constitution underscores how appallingly disingenuous their sensibilities are, for, as has been pointed out in The BLIPS Network and Philippine Commentary, they conveniently managed to skip over those provisions that render the separation of church and state inviolable and uphold the freedom of religion. One statement in Article III, Section 5, seems especially cogent: “No religious test shall be required for the exercise of civil or political rights.”

This is not to say that the state cannot contemplate issues of morality—rather, the nature of the morality it upholds, in view of existing jurisprudence, should be secular and widely accepted.

Public moral disputes must be settled within the framework of an established civil order, for, regardless of how creed-inclusive the COMELEC resolution at hand pretends to be, using the standards of a given religion or religions to shape public policy would go against the very concept of religious freedom—such a concept allows an individual to cleave to no religion whatsoever. A pertinent excerpt from Supreme Court decision on the case of Estrada vs. Escritor (A.M. No. P-02-1651) follows, with key passages emphasized:

In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is “detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society” and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution’s religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.

Furthermore, the state must ensure that its laws square with widely accepted concepts of what is right and what is wrong, for otherwise the law would have no meaning or purpose, and would be impossible to enforce—moral norms ought not to be implemented at the cost of fundamental liberties. Inherent in such a requirement is not a drive toward arbitrariness or whimsy, but a recognition that laws, like the human beings who enact them, are inevitably prone to change. Here is a relevant paragraph from White Light Corporation, et al. vs. City of Manila (G.R. No. 122846):

To be candid about it, the oft-quoted American maxim that “you cannot legislate morality” is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at variance with public attitudes about right and wrong. Our penal laws, for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions between right and wrong, they will remain so oriented.

In view of the foregoing, it is worth highlighting that the Revised Penal Code, which, per the Supreme Court itself, is “founded on age-old moral traditions”, does not, in fact, criminalize non-heterosexuality or non-heterosexual acts, no matter how certain provisions—those pertaining to vagrancy and grave scandal, to give two examples—have been misused and abused to censure them, and so it is reasonable to extrapolate that the public has believed since 1930 that, from a legal, secular standpoint, non-heterosexuality and non-heterosexual acts are not wrong.

What is most patently offensive about the COMELEC resolution is the conclusion, which is a gem of sheer passive-aggressive persecution: “We are not condemning the LGBT, but we cannot compromise the well-being of the greater number of our people, especially the youth.” The contra-factual, nonsensical assumptions in operation are these: that the LGBT sector and the youth sector are wholly separate; and that the former poses a dire threat to the well-being of the latter, and therefore should be suppressed. In other words, it would seem that the COMELEC is willing to “tolerate”—that supreme act of condescension—the existence of the LGBT community as long as it stays away from the youth, never mind that many young people are themselves lesbian, gay, bisexual, or transgender. As Indian intellectual Gayatri Spivak has asserted, however, “Tolerance doesn’t work both ways. The rich and the poor are not equally free to sleep under the bridges of Paris. Tolerance is a loaded virtue because you have to have a base of power to practice it. You cannot ask certain people to ‘tolerate’ a culture that has historically ignored them at the same time that their children are being indoctrinated into it.”

Taken to its logical end, the resolution imprisons the LGBT community in social and cultural ghettos easily supervised and controlled, banishes them from public affairs in general and the political arena in particular, and even, as Manolo Quezon points out, lays the ground for the eventual arrest of Ang Ladlad members and supporters, beginning with chairman Danton Remoto. How the COMELEC resolution against Ang Ladlad can be construed as not ultimately condemnatory of the LGBT community can only involve the most convoluted, most contrived, and most morally bankrupt mental maneuvers. It must be stressed that what is at stake here are not the rights of a minority. The rights of representation and participation are not for lesbian, gay, bisexual, and transgender individuals alone—these are human rights, which the state must ever strive to protect against those who would abrogate them.