Against Barangay Ordinance No.

01 Series of 2011
Barangay Tortugas, Balanga City by Professor Alfredo F. Tadiar, Esq1

Position Paper

I. PREFATORY STATEMENT A. Danger of turning sectarian Democracy and the Rule of Law cannot thrive in a sectarian state.

Sectarian is a term defined as being devoted to, peculiar to, pertaining to or promotive of, the interest of a sect. In a broader sense, (it is) used to describe the activities of the followers of one faith as related to those of adherents of another2 It is Roman Catholic doctrine that life begins at conception3 and that all artificial contraceptives are immoral. It is the total prohibition against artificial contraceptives and deprivation of choice in family planning methods, that is at the core of the challenged ordinance. A sectarian state is what the Philippines definitely was during the 400 years that it was a colony of Spain a sectarian colony effectively governed by the Roman Catholic Church. The absolute control of political processes and even of the social life of the people, are what characterize a sectarian state. An example that easily comes to mind is that of the fundamentalist Taliban in Afghanistan. Despite its overthrow, the Taliban continues to wage war against the Western powers to sustain its hardline view that subjugates women. Iraq and Iran are other examples to be wary about.

1 2

Resume of author is appended at the end of paper Blacks Law Dictionary, Fifth Edition, page 1215 3 As Sen. Miraim Defensor Santiago notes in her co-sponsorship of the RH Bill in the Senate on 1 August 2011 Primacy of Conscience in Catholic Theology, human life had earlier been held to start at the ensoulment during the quickening of the fetus at a few months of pregnancy. Conception as the beginning of life was only taught after Pope Paul 6 rejected the majority view and, adopting the minority view, issued Humanae Vita 4 Ambeth Ocampo, Cuidad Murada, 25 February 2008

It is well to recall our colonial history when an independent Governor General, Fernando Bustamante y Bustillo,4 who dared to have an archbishop arrested in his effort to make them accountable, was himself assassinated in a 1717 friar-led revolt. Commenting on a similar Barangay Ordinance that bars distribution of contraceptive drugs and devices in Alabang village in his column, Sounding Board, Fr. Joaquin G. Bernas, S.J., 5 I see what is happening as an attempt by a sector of the Catholic Church to instrumentalize the power of the state to impose Catholic belief on all others. This is something which gives the Catholic religion a bad name. It is reminiscent of the Inquisition The Inquisition was associated with Tomas de Torquemada as Inquisitor General who was responsible for burning at the stake about 2,000 persons in Spain between 1480 and 1530 who were claimed to be heretics for being Jews or Muslims or for acting on religious views contrary to Catholicism. Torqeumada has become a byword for fanaticism in the service of the Catholic religion6 Since the passing of that questionable Alabang ordinance, more barangay councils have passed similar ordinances, including the Sangguniang Barangay of Tortugas, Balanga City that passed Barangay Ordinance No. 1, Series of 2011, against which this position paper is focused. By taking its announced war against the RH Bill pending in Congress that is now polarizing the country into believers and non-believers of Roman Catholic moral doctrines to the media print and TV the clear impression cannot be escaped that the Roman Catholic Church has mobilized its followers not only at the national level but now also at the Barangay levels to pass the questioned ordinance against contraceptives.
5

6 Wikipedia,

Furor over an Alabang ordinance, Philippine Daily Inquirer, 14 March 2011 the free encyclopedia

If that distinct impression proves correct, the ineluctable conclusion follows that the Roman Catholic Church is exerting utmost efforts to turn local government units, starting with the barangays, into sectarian ones, as lamentably they were and had been during the Spanish colonial era. As it is now doing in strongly opposing any divorce law in the Philippines, and glorying in the dubious distinction that it is now the only country in the world without any divorce law7, the Roman Catholic Church is clearly bent to turn the country and all its local government units into sectarian ones. When that happens, the blessings of independence and democracy under the rule of law8 that we sought to secure for ourselves and our posterity in promulgating the Constitution, and the duty of government to promote the general welfare for the enjoyment by all the people of the blessings of democracy9 will have perished with what in effect is the re-conversion of our country into a sectarian one. As under the Spanish colonial era, the Philippines will have retrogressed and turned back the hands of time to be governed by the medieval laws of that sectarian era.

It is important to always bear in mind that it was against that sectarian rule that the Philippines mounted the first revolution in Asia against a colonial power.

B. Contraception prevents resort to abortion

In their over-passionate efforts to protect the life of the unborn, the pro-life movement that represents the Roman Catholic beliefs, has completely lost sight of the undeniable fact that the more women and men who are encouraged to use contraceptives to prevent unwanted pregnancy, the less need there will be for resorting to abortion to terminate it. As reported10, there were 473,400 women who had resorted to abortion in the year 2000. 9% of them died. That means 42,570 women died that year. Preventable and unnecessary deaths of about 117 women DAILY took place in that year alone!
7 8

except for the Vatican Preamble, Constitution 9 Section 5, DECLARATION OF PRINCIPLES AND STATE POLICIES, Constitution 10 Likhaans Imposing Misery: the Impact of Manilas Ban on Contraception, see Mary Racelis Commentary Poor women speak on RH; is anyone listening?, Philippine Daily Inquirer, 01 August 2011.

Racelis eloquently states: How ironic that the women most affected by the decisions of political and religious leaders about their wombs and sexual behavior, are accorded the least say on their expressed need for reproductive health services. Although it is their lives that hang in the balance, celibate males and conservative Catholic laity unabashedly speak for them in these matters. (underscoring and bold type supplied) Racelis continues: In 2010, the Commission on Human Rights called on the City of Manila to revoke EO 00311 and ensure that artificial birth control devices be made available to all adult citizens who are residents within its jurisdiction in health centers and hospitals. Further, stated the CHR, the City of Manila should issue an apology to all women and men denied access to facilities and services as a result of EO and to the children of families affected. Far from being deterred by the tragic experience of the City of Manila in its ban against artificial contraceptives, the Sangguniang Barangay of Tortugas was oddly enough induced to follow the negative examples set by Manila Mayor Atienza and the Punong Barangay of Alabang, in passing the same ordinance that restricts support only to natural family planning and bans all artificial contraceptives. The author, in a Foreword to a study entitled Forsaken Lives, The Harmful Impact of the Philippine Criminal Abortion Ban12, after noting that 79,000 women were hospitalized for health complications of unsafe abortion in 200013, stated: To save lives, prevent needless pain, suffering and death, what better reasons can there be for urgent law reform? To oppose legislation on religious or moral grounds not believed in by many, both members and non-members of the Church, can only be described by those advocating for law reform, as insensitive and callous.

11 Issued

by Mayor Lito Atienza in 2000 declaring total commitment and support only to natural family

planning 12 Forsaken Lives is printed in the US in 2010 13 Guttmacher, Unintended Pregnancy and Induced Abortion in the Philippines, Causes and Consequences, Executive Summary, p. 5

It is time that legislation should be made on this matter (of abortion) as a public health issue and not as a moral issue. Forsaken by the fundamentalist religious hierarchy and by the Philippine government is indeed an eloquent adjective to describe the lives of these unfortunate women whose excruciating experiences are detailed in this report.14

The Tortugas ordinance restricts access to artificial contraceptives on religious and moral grounds based on Roman Catholic beliefs. The public health issue that it abets resort to unsafe abortion resulting in hospitalization for complications and even the preventable deaths of women who chose that method of terminating unwanted pregnancies, was never considered at all. It is well to take note of the SWS Survey that 82 percent of Filipino adults nationwide agree that the choice of family planning methods is a personal decision of the couple, and no one should interfere with it.15 The Tortugas ordinance interferes with the freedom to choose. Pope John Paul II has apologized for the historical crimes committed by Catholics, such as the deaths and injuries from the Inquisition and the misdeeds of Crusades.16 The Pope also made a belated apology more than 400 years late to the
C. Belated apology for harm by the Roman Catholic Church

heirs of Galileo for being penalized by the Inquisition, compelled to recant his views and to spend the rest of his life under house arrest. Galileos crime was his support of the Copernicus heliocentric view, i.e, the earth revolves around the sun, contrary to the Roman Catholic geocentric view that the earth was the center of the universe and, therefore, it was the sun that revolves around the earth, in accordance with the Scripture.17 When Catholic dogma on conception and the morality of contraceptives, will once more change, another belated Papal apology will not suffice to make amends for those whose lives have been forsaken and resulted in unnecessary suffering and death.

14 page

9, ibid Mangahas RH and freedom to choose, PDI, August 13, 2011 16 internet index on Pope apologizes 17 Wikipedia, Galileo.
15 Mahar

D. Role of the Barangay

The last item to consider in this Prefatory Statement is the role of the barangay.18 It has 3 functions: 1) for planning and implementing policies, programs, projects and activities of the community; 2) act as a forum for the expression and crystallization of the collective views of the people; and, 3) for the amicable settlement of disputes. It is plain that Barangay Tortugas has utterly failed to perform the second and third functions. Far from gathering the collective views of the community and amicably settling their dispute on this matter, the Sangguniang Barangay, by passing the questioned ordinance, has crystallized the divisions of the community and polarized it between adherents and non-adherents of the Roman Catholic faith.
II. ANALYSIS OF THE ORDINANCE

TITLE AN ORDINANCE PROVIDING FOR THE SAFETY AND PROTECTION OF THE UNBORN CHILD WITHIN THE TERRITORIAL JURISDICTION OF BARANGAY TORTUGAS; PROVIDING PENALTIES OF ITS VIOLATION; AND FOR OTHER PURPOSES The Ordinance is divided into different sections as follows: SECTION 2. DECLARATION OF BARANGAY POLICIES SECTION 3. OBJECTIVES SECTION 4. DEFINITION OF TERMS SECTION 5. HEALTH SERVICE DELIVERY SECTION 6. PROHIBITED ACTS SECTION 7. PENALTIES SECTION 8. EXCLUSIONARY PROVISIONS SECTION 9. SEPARABILITY CLAUSE SECTION10. EFFECTIVITY The only object of the questioned ordinance is to protect the life of the unborn by punishing any person for doing the acts defined and prohibited therein. It is

18 Section

384, R.A. No. 7160, Local Government Code of 1991

thus a penal ordinance that must be strictly construed against the LGU that passed it and liberally in favor of those accused for violating its provisions.
III. COMMENTS A. General Comments

The Tortugas ordinance shows improvement of the Alabang ordinance. This infers the guiding hand of a conductor of an orchestra or of a choir who coordinates the different musical instruments of an orchestra or the different voices of a choir, in order to prevent discordant sounds from marring the music. The conductor, in this case, seems plainly to point to the Roman Catholic Church or to the pro- life movement, to achieve their single-minded objective to impose their views on nonbelievers of the Catholic faith. In the words of Fr. Bernas, this is the use of state (barangay) power to impose Catholic belief on all others.... reminiscent of the Inquisition. This is something that gives the Catholic religion a bad name.
B. Specific Comments

1.

On the Declaration of Barangay Policies.-

Paragraphs A, B, and C are a deliberately selective compilation of constitutional provisions that, taken out of context, supports its one-sided view against the human right to reproductive health. Paragraph A cites Article II, Section 12 of the declared STATE POLICIES of the Constitution that recognizes the sanctity of family life. It is important to point out that this section includes the plain insertion of a second sentence that has nothing to do with family life that is the focus of that paragraph. This insertion relates to the sentence that the State shall equally protect the life of the mother and the life of the unborn from conception. Plainly, the insertion was meant to hide this controversial sentence in the section on family life, about which there was no controversy and thereby secure approval and eventual ratification by non-suspecting non-catholics. The equal protection therein exhorted to be given is impossible to achieve in certain situations where the right of the mother to health and life would be imperiled by the development of the unborn. Such would be the case in ectopic pregnancies which occur outside of the uterus. Or where the pregnant mother develops cancer. Chemotherapy that would save the life of the mother would also endanger fetal

development. In these cases, the right to life and health of the mother is pitted against the same rights claimed for the unborn. It is undoubtedly the pregnant woman, assisted by her family, who will be faced with making the fateful decision on the foregoing dilemma. The State Policy to protect and strengthen the family as a basic autonomous social institution, must be read to stress the word autonomy as giving the family the freedom to decide on matters that the family considers to be for its welfare, including a decision to terminate a pregnancy that threatens the life of the mother. It is, however, further misleading and unfair for sub-paragraph of the questioned ordinance to make reference to Article XV, Section 1 on the State recognition of the Filipino family as the foundation of the nation and unwarrantedly adds including the unborn child as part of that foundation. Plainly, the family expressly mentioned in the cited Constitutional provision refers to those living members consisting of the parents and children who have been born and delivered since the term unborn child had just been inserted in the 1987 Constitution. Thus, the Civil Code, the prevailing law at the time of the adoption of the Constitution, expressly provides that Birth determines personality;.19 Although it also provides that the conceived child shall be considered born for all purposes favorable to it, that is true only if the foetus is alive at the time it is completely delivered from the mothers womb. 20 But if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty four hours after its complete delivery from the maternal womb. Clearly then, the unborn child could not be deemed a member of the family, as the Tortugas ordinance misleadingly seeks to convey. Paragraph B cites only a portion of Article II, Section 11 that the State guarantees full respect for human rights. It omits the first part of that section stating as premise thereof that the State values the dignity of every human person. The term right to life is used plainly to refer to a person who has been born viable outside the mothers womb, as the foregoing arguments plainly show.

19 Article 20 Artice

40, Civil Code. 41, ibid

2.

On the Objectives

Paragraph (G) of the Objectives that seeks to promote only Natural Family Planning cannot be any clearer in its ultimate end of imposing Roman Catholic belief on non-members of the Catholic church. Fr. Bernas noted that this imposition violates freedom of religion (which) does not merely mean freedom to believe (but) also means freedom to act or not to act according to ones belief. And this too is the teaching of Vatican II in its decree Dignitatis Humanae The danger to this imposition upon non-believers of the Catholic faith is the eventual conversion of the presently secular state and pluralistic society that is the Philippines into a sectarian state where democratic principles and the Rule of Law will perish. There is also a double standard that must be pointed out by this objective. While the Roman Catholic Church seeks to confine sexual relations only to married couples, preaching abstinence before marriage, this objective makes available Natural Family Planning to those engaged to be married. Is the Church now allowing sexual relations to engaged couples so long as they practice natural family planning in direct contradiction to what it preaches?
3. On the Definition of Terms

It is source of discomfort about a barangay that grandiosely defines terms that are applicable to all the country but binding only within the territorial confines of the barangay. Contraceptive is defined as any device intended to prevent conception as a consequence of sexual intercourse. It is, therefore, contradictory and illogical to include such a device or drug as among those defined as abortifacient which undoubtedly means the expulsion of the fetus. How can a drug/device that prevents conception be considered as abortifacient? Absurd! This is along the same line as the hilarious argument that contraception is attempted murder that Fr. Bernas has noted. 21

21 Bernas

Levels of discourse in the RH debate PDI, May 30, 2011

4.

On Health Service Delivery

The exclusive use of Barangay funds to promote and provide . . . Natural Family Planning (NFP)services to married couples and those engaged to be married is another instance of the imposition of Roman Catholic belief on nonmembers of that church which, as Fr. Bernas noted, is what gives the Catholic religion a bad name. The phrase in bold type is also another instance of the deplorable double standard earlier noted. It must be noted that Barangay funds are public funds. Public money is not money of the Roman Catholic Church. Neither is it the money of the protestant churches, or the Muslims who all pay their share of taxes. Expenditures or disbursements from public funds may not be used for the exclusive benefit of any one religion. Otherwise, it would violate the Constitutional prohibition against the establishment of religion. The object of disbursements is for the public good. The questioned Tortugas Barangay Ordinance restricts the disbursement of funds appropriated for responsible parenthood exclusively to promote Natural Family Planning (NFP) services. Such restrictive use again violates the Constitutional provision against the establishment of religion.
5. On the Prohibited Acts and Penalties

Section 6.1 of the ordinance prohibits 1. Any natural or juridical person to advertise within the territorial jurisdiction of the BARANGAY by means of billboards, brochures, leaflets, flyers or similar means or in any manner or form, sell, offer for free or endorse, promote, prescribe or distribute abortifacients as defined in Section 4. Definition of Terms. .Abortifacients include Intrauterine Devices (IUDs), and hormonal contraceptives,

There are two kinds of acts that are outlawed by this section, namely, 1) to advertise abortifacients; and 2) to sell, prescribe or distribute abortifacients.

1)

prohibition against advertising abortifacients

Advertisement is a form of speech, the freedom of which is guaranteed by the Constitution. A billboard is surely valuable private or public property, depending on its ownership, which, while it may be properly regulated as to its structure and location, may not be torn down or dismantled arbitrarily for its content. It is not far fetched to say that the City of Balanga that encompasses Barangay Tortugas, may own a building that contains advertisements within the territory of the latter. Advertising the use of condoms comes within the barangay prohibited content since, by definition it is a device (that) prevent conception. While the penalty of the modest fine imposed may be affordable as a business cost, the question remains whether the Barangay officials are vested with the power to dismantle the tarpaulin and confiscate the same as proceeds of the crime. That surely would be challenged as a confiscation that restricts free trade and commerce. Further, the argument may be expanded to include that condom advertisement expresses political belief on the need to curb high population growth or to prevent the spread of HIV/AIDs as a public health measure. In that sense of expressing political beliefs, the advertisement is entitled to the highest form of constitutional protection. 22
2) prohibition against selling, distribution or prescribing abortifacients.

The second class of outlawed acts include selling presumably by a drug store located within the barangay or prescribing by a physician whose clinic is within the barangay of a condom or other abortifacients. The exercise of a lawful profession and business are adversely affected. Further, a city/municipal health clinic may be located within the territory of the barangay. Where such health clinic, in implementing city policy, dispenses contraceptives other than natural family planning method, there would be a clash between the city and the barangay as to whose legislation is supreme over the other. Section 6.2 of the ordinance prohibits:

22 Bernas,

Battling over billboards, Philippine Daily Inquirer, July 18, 2011

Any person to subject an unborn child or his or her mother to acts that may endanger or expose the unborn child or mother to injury or death. The prohibition is against a perceived effect on those the ordinance seeks to protect. As to whose perception it is vested to determine that effect, has not been stated. Plainly, the Barangay Tanod who is the law enforcement officer seems to be vested with the power to make that crucial decision. Is a barangay tanod authorized to arrest a pregnant woman who is having alcoholic cocktails with her family and friends on his perception that she is endangering the development of the fetus? Invasion of the constitutionally protected right to privacy has been successfully invoked in a case decided by the U.S. Supreme Court.23 Thus, this provision is unconstitutionally vague in prohibiting undefined acts that may endanger or expose to injury or death the pregnant woman or the conceptus in her womb. Section 6.3 of the ordinance prohibits 3. Any person to hold, conduct or teach compulsory sex education without prior consultation, and written permission of, the parents or guardians of minor students in any school, public or private within the territorial jurisdiction of the BARANGAY; All non-government organizations (NGOs) advocating free choice who are invited to a school located within the barangay, would run afoul of this ordinance. This contravenes State Policy 24 to encourage non-governmental organizations that promote the welfare of the nation. Section 6.4 of the ordinance prohibits 4. Section 6.3 of the ordinance prohibits

2.

Any funds of the BARANGAY to be used for the purchase or provision of contraceptives as defined in Section 4. Definition of Terms;
23 Griswold

v. Connecticut, 381 U.S. 479 (19650 where the Supreme Court struck down a state statute prohibiting the use of contraceptives and the giving of information, instruction or medical advice as to the means to prevent conception.

This has already been discussed earlier. It bears stressing that such prohibition violates the duty of government to provide for the basic needs of its people. As Mangahas notes, 24 Family planning is also a basic need to which the people have the legal right to demand from government to provide for, particularly for the poor who cannot afford to purchase the contraceptive they chose. Section 6.5 of the ordinance prohibits 5. BARANGAY or its employees or its agencies to solicit, accept or dispense contraceptives as defined in Section 4. Definition of Terms.

A barangay employee is not deprived by said employment of his rights as a member of the sovereign Filipino people. How can a barangay declare his/her acceptance, possession and eventual use of a contraceptive by its employees, when there is no law duly enacted by the legislature prohibiting such acts? Such prohibition violates his/her constitutional right to liberty and property without due process of law.
b. STATUTORY LIMITS OF POWER TO BARANGAY

Discussing the autonomy of a local government, the Supreme Court held that local governments can only be an intra sovereign subdivision of one sovereign nation. It cannot be an imperium in imperio. Local governments can only mean a measure of decentralization of the function of government.25 Decentralization of administrative power to political subdivisions by the central government is made in order to broaden the base of government power and in the process make local governments more responsive and accountable and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.26 The questioned ordinance usurps the official function of the Food and Drugs Administration and thereby violates the law granting that function to that administrative agency. There is no law that has delegated the function of determining what drugs or devices may be sold or dispensed to any barangay.
24 See

footnote 15 v. Phil. Amusement and Gaming Corp., 197 SCRA 52 (1991) 26 Miriam Defensor Santiago, Constitution Annotated, pages 547-548, citing Limbonas v. Miguelin, G.R.NO 80391, Feb. 28, 1989
25 Basco

Without waiting for the passage of the RH bill by Congress, the Sangguaniang Barangay of Tortugas is taking the questionable lead on this highly divisive issue. It is not acting as a partner in the pursuit of national development goals but frustrates such partnership. It is acting as imperium in imperio contrary to what the Supreme Court has prohibited.
c. CONSTITUTIONAL RESTRICTIONS

The specific constitutional violations have been discussed on the comments made above.
IV. CONCLUSION

All sectarian-induced legislation from ordinances to statutes and administrative rules must be effectively challenged and thwarted. Otherwise, the danger pointed out at the inception of this Position Paper that the Philippines may turn into a sectarian state, similar to the feared Taliban controlled Afghanistan, would become the dreaded reality. The only conclusion that can be ineluctably drawn from all the foregoing general and specific comments made in this paper is that the entire BARANGAY ORDINANCE NO. 01 SERIES OF 2011 passed by the Sangguniang Barangay of Tortugas, Balanga City, Bataan is undoubtedly UNCONSTITUTIONAL for the reason that it undoubtedly violates the following provisions of the Constitution: 1. The PREAMBLE by which the Constitution was ordained and promulgated so that the blessings of independence and democracy under the rule of law and regime of truth, justice, freedom, love, equality and peace. The reason for this is that entire barangay ordinance is sectarian-dictated by a single religion - the Roman Catholic church.

2. Freedom of religion, separation of church and state, non-establishment of religion guaranteed under Article III, Section 5.

3. Article II, State Policy Section 12 to protect and strengthen the family as a basic autonomous social institution, by reason of unduly restricting that

autonomy giving the family the freedom to decide on matters that the family considers to be for its welfare, including the freedom to choose the family planning methods that it will use.

4. Free speech guaranteed under Article III, Section 4

5. Article II, State Policy 9 mandating government to free the people from poverty through policies that provide adequate services but instead restricts access to needed information and the full range of family planning methods.

6. Article II, State Policy 23 mandating government to encourage nongovernmental, community-based, or sectoral organizations that promote the welfare of the nation.

7. Article X, section 2, for exceeding the powers granted by reason of local autonomy and frustrating the role of the barangay as effective partners for national development goals.

8. Unconstitutional vagueness in prohibiting undefined acts that is left to the perception of barangay authorities as being harmful to the development of the unborn. RESPECTFULLY SUBMITTED Quezon City, this 15th day of August 2011.

Professor Alfredo F. Tadiar, Esq