LAW, POLITICS, AND MORALITY

IN THE PHILIPPINES

Photo credit: Author

VIVENCIO “VEN” BALLANO, PhD

In the Photo: Baby Johann Karl Ballano & Brother-in-law Conrado Torralba

WHAT IS POLITICS?

I. ETYMOLOGY

THE WORD “POLITICS” COMES FROM THE GREEK WORD:

“POLIS”= CITY OR STATE.

“POLITIKOS” = “OF, FOR, OR RELATING TO CITIZENS”: THE PRACTICE OR THEORY OF INFLUENCING INDIVIDUALS OR GROUPS IN SOCIETY

II. CLASSICAL DEFINITION (LASWELL 1950) Politics is “Who gets what, when and how” This means that politics is based on the degree of power and authority a person or group has in society:

The greater is the power and authority, the more a person or group gets what they want in society or government in a shorter period of time and in a more convenient way.

A powerful person with social connections can get what s/he wants by just a phone or cellphone call, but a poor and powerless person is uncertain to get what s/he wants in a longer period of time and in most inconvenient way.

2 LEVELS OF MEANING OF THE WORD POLITICS

GENERAL SENSE: POLITICS AS DYNAMICS OF

POWER IN SOCIETY; EACH PERSON OR GROUP IN SOCIETY HAS THE RIGHT TO EXERCISE POWER TO GET WHAT S/HE WANTS IN SOCIETY OR GEOVERNMENT

SPECIFIC/PARTICULAR SENSE: POLITICS AS PARTISAN POLITICS, I.E., ENGAGING IN POLITICAL PARTY POLITICS, ELECTIONEERING, ETC. NOTE: Priests, religious and bishops are not allowed to engage in partisan politics, i.e, to occupy public office; governnent are prohibited by the Civil Service to engage partisan politics in the bureaucracy.

POWER IN SOCIETY

ALL POLITICS INVOLVE POWER AND AUTHORITY

POWER: THE ABILITY TO INFLUENCE OR COMPEL THE OTHER TO ACT AGAINST HIS/HER OWN INTEREST DESPITE RESISTANCE.

SOME COMMON TYPES OF POWER:

1. COERCIVE: POWER THAT USES FORCE, VIOLENCE AND INTIMIDATION TO OBTAIN ONE’S WISH.

2. PERSUASIVE: POWER THAT APPEALS TO THE EMOTION OF THE OTHER OR EMPLOYS PERSUASION TO OBTAIN ONE’S WISH.

3. CONSENSUAL: POWER THAT OBTAINS THE MAJORITY VOTE THROUGH DIPLOMATIC MEANS TO PURSUE A PERSONAL OR GROUP PROPOSAL.

OLD CONCEPT OF POWER: POWER IS POSSESSION. If a person has wealth, he has power.

NEW CONCEPT (M. FOUCAULT): POWER IS EXERCISED THROUGH EFFECTIVE STRATEGIES, MANIPULATIONS OR OTHER TACTICS TO CONTROL THE OTHER. A rich man can be powerless if he

doesn’t know how to use his wealth to control the other. E.g. David was able to defeat Goliat

because of an effective use of power or strategy.

AUTHORITY IN SOCIETYAUTHORITY: A SPECIAL TYPE OF POWER GIVEN BY THE

PEOPLE, USUALLY THROUGH ELECTION OR DELEGATION ; A LEGITIMATE POWER, A RIGHT TO RULE.

NOTE: A person can be powerful without authority. Examples: the bully, the “Siga,” the criminal, corrupt public official, etc.

: A person can also be with authority but cannot exercise power. Examples: Presidents in exile; monarchs during regency, a lame-duck president. Pres. Quezon in exile in the US during the Japanese War.

: An honest public servant can be both powerful and authoritative.

SOURCES/TYPES OF AUTHORITY

CHARISMATIC: AUTHORITY BASED ON PERSONAL TALENTS/TRAITS OF THE LEADER.

Bro. Mike Velarde receives authority from his charm and talent in public speaking/preaching.

TRADITIONAL: AUTHORITY BASED ON WHAT IS HANDED DOWN FROM THE PAST OR TRADITION.

Priests receive authority from the bishop through the traditional apostolic succession.

RATIONAL-LEGAL: AUTHORITY BASED ON WRITTEN LAWS. THIS IS THE MOST COMMON TYPE OF AUTHORITY IN MODERN & CONTEMPORARY SOCIETIES. Pres. Aquino receives his authority from the Philippine Constitution.

DISTRIBUTION OF POWER AND AUTHORITY IN THE PHILIPPINES

UNEQUAL DISTRIBUTION OF WEALTH AND INCOME IN THE PHILIPPINES TRANSLATES TO UNEQUAL DISTRIBUTION OF POLITICAL POWER IN THE PHILIPPINES.

INVERTED PYRAMID MODEL: AROUND 5% OF THE POPULATION

ENJOYS MORE THAN 70% OF THE WEALTH WHILE THE 70% WHO LIVE BELOW THE POVERTY LINE ENJOYS ONLY AROUND 30% OF THE COUNTRY’S WEALTH.

IMAGES/MODELS IN UNDERSTANDING POLITICS IN THE PHILIPPINES

PATRON-CLIENT RELATIONSHIP: POLITICS BASED

ON DEBT-OF-GRATITUDE OR “UTANG NA LOOB”

: THE HACIENDERO OR LANDLORD AS THE

PATRON AND THE LANDLESS FARMERS & THEIR

FAMILIES AS CLIENTS. : THE PATRON PROVIDES PERPHERAL

NEEDS OF THE CLIENT SUCH MEDICINES, LOANS,

BURIAL EXPENSES, ETC. IN EXCHANGE THE

CLIENT & HIS/HER RELATIVES VOTES FOR THE

PATRON OR WHOEVER HE ENDORSES DURING ELECTIONS.

POLITICAL MACHINE

A STRONG POLITICAL PARTY OR POLITICAL MACHINE IS IMPORTANT IN WINNING PHILIPPINE ELECTIONS.

MOST POLITICIANS WANT TO BE A MEMBER OF THE RULING OR DOMINANT PARTY TO WIN ELECTIONS RATHER THAN RUNNING AS INDEPENDENT CANDIDATES.

ELITE DEMOCRACY

DEMOCRACY IN THE PHILIPPINES IS PATTERNED IN FAVOR OF THE RICH FEW OR THE ELITE.

THE PHILIPPINES IS GOVERNED BY A FEW RICH FAMILIES OR BUSINESS ELITE.

PATRIMONIALISM AND POLITICAL DYNASTY

PATRIMONIALISM TREATS PUBLIC OFFICE AS PRIVATE OWNERSHIPWHICH CAN INHERITED BY RELATIVES.

PATRIMONIALIM CAN LEAD TO POLITICAL DYNASTIES IN THEPHILIPPINES.

THE DYNAMICS OF LAW IN SOCIETY

WHAT IS LAW?

MAX WEBER: THERE IS LAW IF THERE IS COERCION AND A SPECIALIZED STAFF TASKED TO ENFORCE OR IMPLEMENT IT.

TYPES OF LAW:

SUBSTANTIVE: THE CONTENT OF THE LAW ITSELF. THOSE FOUND IN THE LEGAL CODES.

E.g. Revised Penal Code of the Philippines (criminal law), New Civil Code of the Philippines (civil laws), Labor Code (labor laws)

PROCEDURAL: PROCEDURES OR METHODS IN PROCESSING A CASE IN COURT. THOSE FOUND IN THE RULES OF COURT. E.g. The Revised Rules of Court in the Phils.

Example of Substantive Law

THE NEW ANTI-RAPE LAW OF 1997 (RA 8353)

"Article 266-A. Rape: When And How Committed. - Rape is committed:       "1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

            "a) Through force, threat, or intimidation;                        "b) When the offended party is deprived of reason or otherwise unconscious;                        "c) By means of fraudulent machination or grave abuse of authority; and                        "d) When the offended party is under twelve (12) years of  age or is demented, even though none of the circumstances mentioned above be present.

"2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of  sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

Example of Procedural law: How to file a criminal complaint

Section 1. Institution of criminal actions. — Criminal actions shall be instituted as follows: (a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing

the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation.

(b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters.

The institution of the criminal action shall interrupt the running period of prescription of the offense charged unless otherwise provided in special laws. (1a)

Section 2. The Complaint or information. — The complaint or information shall be in writing, in the name of the People of the Philippines and against all persons who appear to be responsible for the offense involved. (2a)

Section 3. Complaint defined. — A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. (3)

Section 4. Information defined. — An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court. (4a)

Section 5. Who must prosecute criminal actions. — All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court.       (This Section was repealed by A.M. No. 02-2-07-SC effective May 1, 2002)

The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.

LEGALITY AND MORALITY: IS IT ALWAYS LEGAL TO BE MORAL?

LEGALITY AND MORALITY: 2 STANDARDS OF CONDUCT

IN SOCIETY LEGALITY MORALITY

BASIS OF MORALITY: DIVINE LAW (Bible, Tradition, Religious teachings

BASIS OF LEGALITY: HUMAN LAW (Statutes, legal codes, manual of rules)

IDEAL SITUATION: HUMAN LAW MUST BE BASED ON DIVINE LAW

ACTUAL SITUATION: HUMAN LAW SOMETIMES CONFLICTS WITH DIVINE LAW, THUS AN ACT WHICH IS LEGAL CAN BE IMMORAL, OR ILLEGAL BUT MORAL

EXAMPLES OF LAWS/ACTS WHICH ARE LEGAL BUT IMMORAL

ACT/LAW LEGAL IMMORAL

CIVIL WEDDING Recognized by the State, Family Code of the Philippines, solemnized by a judge

Not recognized by the Catholic Church as sacramental wedding, not blessed by God as solemnized by a priest or deacon.

MARTIAL LAW (PD 1081)

Recognized by the state during Marcos era

Generally considered immoral due to human right abuses as a consequence of the law

NOT PROVIDING ALMSTO BEGGARS IN QUEZON CITY

Quezon City government passed the anti-mendicancy law that prohibits alms-giving

The Bible teaches charity especially the poor who really in need.

LEGAL BUT IMMORAL: THE CASE OF THE LAW ON ADULTERY AND CONCUBINAGE

THE PHILIPPINE LAW ON ADULTERY AND CONCUBINAGE IS AN EXAMPLE OF A LEGAL BUT IMMORAL LAW AS IT IS HIGHLY UNJUST AGAINST WOMEN AND MANIFESTING A DOUBLE STANDARD ON MARITAL INFIDELITY.

WHY? 1. TWO NAMES BUT ONLY ONE CRIME: MARITAL

INFIDELITY. Adultery which sounds more serious because of the

Biblical connotation is applied for Filipino married women, while Concubinage which sounds foreign to Filipino ears is applied to married men.

TYPE OF EVIDENCE NEEDED TO CONVICT ADULTERY AND CONCUBINAGE

FOR ADULTERY: INDIRECT EVIDENCE CAN BE SUFFICIENT (pictures showing

intimate moments, text messages, love

letters, etc.

FOR CONCUBINAGE: DIRECT EVIDENCE ONLY & UNDER 3 CIRCUMSTANCES ONLY: 1. Cohabitation (living together like

husband and wife in a separate home )

2. Sexual intercourse in scandalous way

3. Bringing & sexual intercourse with the

mistress in conjugal home

PENALTY FOR ADULTERY IS HEAVIER THAN CONCUBINAGE

IMPRISONMENT FOR ADULTERY: PRISION CORRECTIONAL IN ITS MEDIUM TO MAXIMUM

TERMS

IMPRISONMENT FOR CONCUBINAGE: PRISION CORRECTIONAL IN ITS MINIMUM TO MEDIUM

TERMS