Thursday, October 21, 2010

The libertarian ideal

A couple of weeks ago, a news report came out wherein firefighters in Tennessee refused to come to the aid of a homeowner whose house was burning down because the homeowner hasnt paid the annual fee of USD 75.00. (The fire department serviced a particular community for 'free'. For those outside it, they charge an annual fire services fee.) Even after promising to pay whatever fee is due after the fire has been put out, the fire department refused. As a result of this callous act, one family lost their home. Statists from all over weighed in warning that this is what would happen if limited government people, libertarians, anarchists, and Randians had their way. "The free market is evil," they cried. "We need government to provide these services. Only government could be trusted to protect our lives and property."

"The libertarian ideal," said a pal on my plurk timeline. That's what they say this illustrates, implying that those who hold libertarian views are amoral, selfish cranks. But is it the libertarian ideal?

Let us forget the fact that the fire department was a government agency, not a private one. The fee has been in place for 20 years. The fee in question was a government fee and the charging of the fee was government policy. Leaving that aside, why is this being used as an illustration of the 'libertarian ideal'? It is because we grew up thinking that government is good. That's what they teach us in school. So we better let them confiscate a huge chunk of our earnings to spend on whatever it is they deem for 'the common good'. And woe unto those who refuse.

In the libertarian ideal where the market is free, there would be no monopoly. Here was a homeowner who was irresponsible enough to forget to pay for fire insurance. A fire begins to destroy his home. Before the fire does a lot of damage, he calls his fire protection service provider, who refuses to help him. He then promises to pay whatever fee is due. The provider still refuses. In the present system, that's the end of that. His house burns down, his family loses a home. This will not happen in 'the libertarian ideal'. In the libertarian ideal, the homeowner simply calls another fire protection agency and tells them of his plight. This provider wouldnt have refused simply because he would welcome the opportunity to get another customer for his services and wouldnt want the bad publicity of refusing to help a family to get around the market-place. The house would be saved, the provider gets a new customer and adds to his income (and continues to employ firefighters), and after word gets around about how the previous provider refused to aid the family in dire need, they would begin to lose clients to other providers and eventually closes shop. That is the libertarian ideal.

Monday, October 04, 2010

More on the penal code's archaic Article 133

First of all, I apologize if this post is unformatted or looks weird in any way. Im sending it though email and I can't see if it came out right. In fact I can't see if it came out at all. You see Im in a country where blogger is blocked (along with Twitter, Plurk, Facebook, etc. -- a good reason to switch to WordPress which isnt blocked). Chi-cough-na, cough.

Anyway, an interesting piece by well-known lawyer Jose C. Sison came out in the Philippine Star site today in which he defends Article 133 of the Penal Code. He does this by arguing that the law is right in affording special status to religious rites in the eyes of the law so disruption of religious rites, in this case Catholics' view of the mass, is especially reprehensible.

Anyone who disrupts the mass like that Intramuros tourist guide (his name is not worth mentioning) certainly deserves to be imprisoned. His act can never be justified by his deep resentment against the prelates who oppose the RH bill. It is willfully, willingly and feloniously done during a rite most sacred to Catholics and therefore punishable under the RPC. Muslims and Buddhists would also feel offended if such disruption was committed against them. There is no reason why disruption of a Catholic ritual should be treated differently.

First of all, I agree. As a former Catholic, I recognize that the holy sacrifice of the Mass is indeed the centerpiece of Catholic faith and worship -- lex orandi, lex credendi. It is where the bread and wine is changed into the real and actual substance of the flesh and blood of Jesus Christ and where Catholics remember his sacrifice for all mankind. Disrespecting the mass is more than insulting to the Catholic; direspecting the mass is an insult to Jesus Christ himself. As a former Catholic I felt the insult. The Church's outrage against Carlos Celdran's act (he says it wasnt premeditated, let's give him the benefit of the daw) is in my opinion, more than justified; it was absolutely warranted. Any Catholic who wasnt outraged by that act does not deserve to call himself Catholic.

But that is neither here nor there. According to Atty Sison's piece, there is no reason to remove Art. 133 from the Code because religion is special, and that the law should recognize that it is special. I disagree. I believe the law should be neutral when it comes to religion. I do not have to remind anyone that there are different religious and irreligious beliefs in our country and our law guarantees these beliefs and protects the right of its citizens to hold them. That is why there is Article 153 in the Code which punishes any disruption of peaceful assemblies and meetings. But here Atty. Sison is arguing that a disruption of religious service deserves a greater punishment than a disruption of, say, a homeowner's association meeting. Section 5 of the Constitution is clear: No religious test shall be required for the exercise of civil or political rights. No religious test. In looking at a disruption of a peaceful assembly, the law should not ask what kind of assembly was disrupted, whether it was religious or secular. It should not care.

Let us look at the spirit of these laws. Why were the laws created? It is so that the powerless can be protected from the powerful. The citizens for instance should be protected from the abuses of the State, a peaceful man from a violent man. Section One of the Penal Code, to which Article 133 inexplicably belongs, contains prohibitions against public officers and employees. In the comment section of one of his blogposts, Manuel Buencamino (he doesnt think 133 is archaic either) surmised that Article 133 was enacted to protect smaller denominations from disruption by bigger ones; for example, if Catholics disrupted a religious service of Rizalistas. Let's take a look at Carlos Celdran's case. Atty. Sison thinks he deserves to be imprisoned and certainly the letter of the law says he deserves, according to Atty. Sison, imprisonment from 6 months to 2 years and 4 months. (In my previous post, I said the punishment was 6 months. I defer to the member of the Bar. It is up to 2 years and 4 months, which makes it all the more draconian -- a law enacted by tyrants. We'll get to that in a bit.)

But is this a case of the powerful oppressing the weak? Carlos Celdran was one unarmed man in a Rizal costume (Manuel Buencamino said he was in a Charlie Chaplin outfit). He was yelling against a powerful organization. He did not prevent his fellow Catholics from worshiping. Indeed he didnt have the power to. The Catholics' freedom of worship was not harmed one iota. Officers of the State took him away and the Mass went on. What he was guilty of was offending them. Just that. He did not damage Church property, he did not physically harm anybody. Atty. Sison believes this is sufficient reason to take Carlos Celdran's freedom away for 2 years and 4 months. And if the Church leaders do not withdraw the charges, they agree. In fact, 230 bishops think this deserves to have a man lose his livelihood. As mentioned earlier, Manuel Buencamino thinks that the Article 133 is there to protect small sects from bigger sects who might do them harm. I dont know about that. What is more plausible to me is that this law was used to 'protect' the powerful Spanish Catholic hierarchy from being offended by those pesky Indios.

Atty. Sison then turns to the subject of rights:

They may have the freedom to express their own views but they must also respect the customs, practices and the rights of others to express contrary views. They have no right to denigrate, defile and blaspheme those who do not agree with them.

Actually there is an abuse of freedom in our society today. People now think that they have the absolute right to act and speak freely even to the extent of trampling upon the rights of others or of imposing their individual rights over and above the rights promoting the common good.

One doesnt have the right to be free from being offended. On the contrary. The freedom to express views comes with the license to offend. One may use or not use that license as one sees fit, but the license is there, the license to denigrate, defile, and blaspheme. Imagine how offensive Rizal's writings were to the Spanish authorities or indeed Jesus' words were to the Pharisees and Sadducees. If the freedom of speech did not come with a license to offend, if we only spoke agreeably, if we dont have the license to satirize and insult, if we only had the right to speak in a politically correct manner, then speech wouldnt have sparked revolutions that set us free. The powerful can insult us, denigrate us, and blaspheme our beliefs. We the weak must have the right to do likewise to them. Rightly or wrongly, this is the right that Carlos Celdran claimed: that of the weak speaking to the strong. Of course common decency behooves us to behave with respect towards our fellowman and the views they hold, no matter how disagreeable they or their views seem to us. But common decency cannot be legislated without curtailing freedoms as well. And yes, freedom of speech has its limits. There's this famous saying by that famous Greek philosopher Anonymous that goes, "Your freedom ends where my nose begins." Freedom of speech should not cause harm to one's person. Shouting "Fire" in a crowded theater for example. Everything else is fair use of rights.

Im with Atty Sison's view of religion. Religion in society at its best is important and it is indeed special.  While it is true that -- to paraphrase Christopher Hitchens -- religion poisons some things, at its best it allows the flowering of our society. Our rights and freedoms came from the grand notion that God createdl Man in his own image and are therefore all equal and have inalienable rights, a patently unscientific belief. It is atheism -- the idea that no authority is higher than the authority of Man -- that poisons everything. The only reason to trust secularists today is because they have been imbued with ideals that came from religious faith. Once they unshackle themselves from these 'irrational' beliefs, that is the time we can view them as the enemy of society. Carlos Celdran is not the enemy, and he does not deserve to go to jail, no matter what the letter of the law says.

Friday, October 01, 2010

The aberration that is Article 133

When I heard that Carlos Celdran of the walking tours fame was arrested for disrupting an ecumenical service at the Manila Cathedral by protesting, I thought it would be an interesting case study. I heard about it via a plurk pointing to a tweet from @inquirerdotnet from before any details were available on the news sites. It just said Celdran yelled 'Politics' in front of the altar during an ecumenical service.

Surely, I thought, he wasnt arrested for protesting. Speech is protected in this country. Unless he did it in a disruptive manner in the middle of the mass in which case he'd be running smack dab into the 'disturbing the peace' provisions of the penal code. Chapter 5 of the Revised Penal Code says
Art. 153. Tumults and other disturbance of public orders; Tumultuous disturbance or interruption liable to cause disturbance. — The penalty of arresto mayor in its medium period to prision correccional in its minimum period and a fine not exceeding 1,000 pesos shall be imposed upon any person who shall cause any serious disturbance in a public place, office, or establishment, or shall interrupt or disturb public performances, functions or gatherings, or peaceful meetings, if the act is not included in the provisions of Articles 131 and 132.
Arresto mayor as defined in the Code is imprisonment of from one month and one day to six months so a medium period would be somewhere in the middle of that timescale. As details of the protest came online, it became clear that Celdran might have behaved in a disruptive manner, parading in front of the altar with a placard with the word Damaso on it and screaming at the top of his voice while the ecumenical service was going on. In his words:
"I started screaming, ‘Stop getting involved in politics!’ I kept screaming until I could not scream anymore, then they took me away."
That mustve been some pretty loud screaming. But Carlos Celdran is such a harmless bloke that I was expecting he would be kept in prison til he cooled down, reprimanded, then sent home lesson learned. And besides, this is the Church, arguably the most powerful non-government organization in the country with a membership numbering in the millions. What can a lone tour guide do against a force like that? His continued detention depended on the Church filing a complaint. If there is no complaint, then he would be released. One word from Cardinal Rosales wouldve ended it yesterday and the Cardinal and his buddies would have a good laugh about it. But apparently, he was to be made a lesson. He spent the night in jail and is still in jail as of 1:00 pm today, 1 October.

That's the law. But wait! It turns out that he wasnt charged with disturbing the peace or disruption of public order. He was charged with violating Article 133 of the Revised Penal Code which is -- seriously -- offending the religious feelings.
Art. 133. Offending the religious feelings. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful.
It's bad enough that 'disturbing the peace' can get you in jail for over about 3 months minimum as per Article 153 of the Code which covers what Celdran did, a draconian punishment just for being an annoying prick, but the Code has to have a special provision against religious feelings -- religious feelings! -- with a jail time of six months.

Now the Penal Code is supposed to be a list of crimes against person, property, public order, and State. Article 133 is under the general heading of Section One. — Arbitrary detention and expulsion, which covers Articles 124 to 133. If you'll notice, Articles 124 to 132 covers prohibitions against state officers or employees. Article 126 for instance says
Art. 126. Delaying release. — The penalties provided for in Article 124 shall be imposed upon any public officer or employee who delays for the period of time specified therein the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or unduly delays the service of the notice of such order to said prisoner or the proceedings upon any petition for the liberation of such person.
Here's Article 132.
Art. 132. Interruption of religious worship. — The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who shall prevent or disturb the ceremonies or manifestations of any religion.

If the crime shall have been committed with violence or threats, the penalty shall be prision correccional in its medium and maximum periods.
Section One contains prohibitions against public officers and employees except inexplicably Article 133.

Article 133 covers everyone, and this is the provision thrown against Celdran. Notice that Articles 124 to 132 protects citizens from actions of employees of the State while Article 133 protects religious feelings which runs perilously close to the Church and State clause of the Constitution. Article III, the Bill of Rights says
Section 5. 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.
So Article 133 of the Code is on its face unconstitutional and in light of Article 153, totally not needed. And one more thing, the principle of free expression, along with the liberties recognized by the Bill of Rights transcends any written law or constitution. We do not have these rights because the constitution says so. We have these rights because we are human. The State is there supposedly to protect the defenseless members of our society. When the law is used to protect a powerful institution such as the Church from being offended by a peaceful albeit disruptive protest, something is fundamentally wrong with the way the law is implemented, but such is the society we live in. Article 133 is an affront to a free society since propriety is supposed to be society's own sense of right and wrong imposed not because of the threat of penalty but because decency demands it if one is to live with other people, some of whom may not share the same beliefs. Carlos Celdran's act, for which he has already apologized, did not do a whit of harm to the Church's private property nor to its members; they just didnt like his message. That Article 133 is still there as part of the law of the land is a sign of the weakness of that society.

On a personal note, I disclose that I am a non-Catholic Christian but I have been on record on the internets in defense of the Catholic Church, especially its right to participate in discussions of public political issues. Separation of Church and State does not take away the church leaders' right to express their political opinions in the public sphere and to try to influence public policy. Celdran is wrong in using separation of Church and State this way. Indeed trying to influence public policy is what we all are trying to do in our own ways and we should not begrudge the Church this right. They do contribute something to the public sphere. Suppressing their views no matter how wrong we think they are narrows our democratic space by that much and we will rue the day when their stand on issues is silenced. No religious test shall be required for the exercise of civil or political rights, and this includes the rights of the Church's leaders as Filipinos.

One more thing before I close. The God I believe in does not need me to defend him. I do not take offense at the incredulity, even the 'blasphemy', of others against my faith and those who share it, and to the God who is at the core of that faith. I will defend my views and my person when attacked or challenged but if anyone expresses disrespect for God himself, I'd rather stay out of the way. God can very well take care of himself. That an institution such as the Catholic Church would seek the protection of the State from somebody like Celdran (or at one time the gay party Ladlad) shows some kind of crisis of confidence they have in the God they serve.

Update 1 Oct, 6:26 pm: Carlos Celdran posts bail.