Episode 15: Divorced from Reality, Part 1

Fair warning: Long Blog Post. If you have something immediately important to do, do it now, then come back.

Back already? Great.

Hot on the heels of the RH Bill issue (discussed thoroughly here, here and here in this blog) comes now HB 1799, “An Act Introducing Divorce In The Philippines.” As expected, this bill has met strong opposition by the Catholic Church. And so once again I must take up the cudgels against my Church and sermon it one more time.

(A quick aside. A longtime acquaintance of mine, micketymoc (who you can follow on his Twitter account, just because he’s a guy brimming with awesome), recently described me as “the last Catholic who believes in the primacy of conscience over obedience to the Church.” I corrected him, saying that I believe in the primacy of conscience over obedience to the CBCP. For me, what is at issue here is not the Catholic teaching on the sanctity of marriage, but the issue of non-proselytization and the imposition of Catholic morality by way of politics and legislation. I’ve said it before, and I’ll say it again. This is not how the Catholic Church operates, and for the CBCP to say otherwise, either by explicit claim or by implication through their actions, is a blatant abandonment of their duty to the Catholic lay community to be moral compasses and spiritual guides.)

Rather than discuss the factual bases for introducing the Divorce Bill (which is evident in the Explanatory note of Reps. Ilagan and de Jesus, as well as various other sources online), I am going to discuss the legal arguments surrounding the Divorce Bill.

Chief of the objections against the Divorce Bill is that it is proscribed by the Constitution. Jo Imbong, to no one’s surprise, says so, as does Ilocos Norte Rep. Rodolfo Fariñas and Sen. Jinggoy Estrada. Are they correct? The relevant Constitutional provisions read:

Sec. 12, Art II. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

Sec. 1, Art XV. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.

Sec. 2, Art XV. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

At first glance, it may appear to be an open-shut case. After all, divorce terminates a marriage, and the concept of termination does go against the idea that marriage is an inviolable social institution, and that it will be protected by the State. Case closed, petition dismissed?

I think not.

Many anti-divorce writers immediately point to Sec. 2, Art. XV to claim that the 1987 Constitution proscribes divorce. They usually mention the “inviolable social institution” phrase, focusing on the word “inviolable” to support their stance. This, I believe, is the fatal flaw of their position.

The phrase “inviolable social institution” is not “plain language,” strictly speaking, and thus cannot be interpreted in that manner. Where did it come from? A review of the Constitutional Commission records will surprise you.

MR. DE CASTRO: I am really having some difficulty.
Our civil law speaks of marriage as an inviolable social institution. Will that not be better than “the institution of marriage as the foundation of the family,” or “the marriage as a social institution”?
MR. GASCON: We recognize that, Mr. Presiding Officer. In fact, if the Commissioner wishes to present during the period of amendments the term “social institution of marriage,” I do not believe that the committee will object.
MS. NIEVA: The wording of the Civil Code on this is stated in Art. 216 which says: “The family is a basic social institution which public policy cherishes and protects.”
MR. DE CASTRO: “Marriage is not a mere contract but an inviolable social institution,” according to the Civil Code and I think that will be much better than “the institution of marriage.”
MR. GASCON: There will be no objection, Mr. Presiding Officer, to that terminology.

– Record of the 1986 Constitutional Commision, Vol. 5, 09-24-1986 R.C.C. No. 91

It seems that originally, the Commissioners did not have that phrase in mind when they were making. Art. XV Sec. 2. It was only when Commissioner De Castro pointed out that the Civil Code (prior to the Family Code superseding its provisions on Family Relations) already defined marriage as “an inviolable social institution” that the Commission decided to adopt it, in order to keep the Constitution consistent with the Civil Code. Later, the Family Code would adopt the same phrase.

In simpler words: The Constitution and the Family Code adopted the phrase “inviolable social institution” for marriage for purposes of consistency. Nothing else.

Assuming arguendo that the phrase was adopted not merely for consistency but to adopt a particular world-view of what marriage is, let’s now go to its potential meaning. I start out with and single out Atty. Jo Imbong’s discourse on “inviolable,” as she explicitly interpreted the wrong word, “inviolate.” According to Atty. Imbong, Random House Dictionary defines “inviolate” as “Free from violation or desecration.” In simpler language, “pure.” “Inviolable,” on the other hand, means “secure from violation or profanation.” It imbibes purity, but at the same time implies that such purity is enforced (secured) by an agent other than the object described. In this case, then, we can safely assume that it is the State that does the securing. The key difference, then, is that when we say “inviolable,” we say that something is made/maintained pure by an active act of security, rather than that purity being inherent and impossible to remove (as what Atty. Imbong seems to imply by defining the wrong word and wrongly ascribing it to the legal provisions).

More importantly, this difference means that something “inviolable” CAN, in fact, be violated or profaned – hence the need to secure it from such. More on this in a moment, but for now let’s proceed to the phrase “social institution.”

“Social institution” is neither a technical term, nor a phrase that has consistent meaning in ordinary language. The term “social institution” is, in fact, most widely used in the field of sociology. The Stanford Encyclopedia of Philosophy, citing Jonathan Turner (The Institutional Order, 1997) defines social institutions as “a complex of positions, roles, norms and values lodged in particular types of social structures and organising relatively stable patterns of human activity with respect to fundamental problems in producing life-sustaining resources, in reproducing individuals, and in sustaining viable societal structures within a given environment.”

In light of this definition, let’s consider the relevant provision of the Family Code:

“Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.”

In his Commentaries and Jurisprudence on the Civil Code of the Philippines, former Vice President Arturo Tolentino describes marriage as “an institution of public order, founded on custom and morality.” Citing Spanish jurists, Tolentino continues: “It is a convention of a social character, based on consent of the parties, which unites a man and a woman in a juridical act for the purposes of procreation and the other matieral and moral ends necessary for the development of personality.”

Comparing Turner’s definition of social institution to Art. 1 of the Family Code, it is clear that when we say that marriage is a “social institution,” we mean that it is that “complex of positions, roles, norms and values” that embody how we understand marriage. Using Tolentino’s discourse to elaborate, that marriage is a institution of public order also means that the State has an inherent interest in protecting marriage due to its effects on the development of the citizenry.

What is important to remember here is that marriage as a “social institution” does NOT refer to the status of marriage per se, nor its religious/ceremonial roots. It refers to ALL of its aspects vis-a-vis society. In fact, I’ll go out on a limb and say that since we are by definition a secular society and country (contrary to *ahem* popular belief), then when we talk of “all aspects of marriage,” we refer only to the SECULAR aspects of marriage – that is, stripped of all its religious mystique. Proof of this is written all over our Family Code, where the essential and formal requisites of marriage deal largely with non-religious matters. Even the ability and authority of clergymen and religious ministers to marry are defined and regulated by the State.

Which leads me back to my earlier point on marriage as “inviolable” needing security from profanity and violation. How can this be violated or profaned?

First, we understand that as part of the security provided by the State, marriage is therefore governed by laws as per Art. 2 of the Family Code. Throughout most of the remainder of the Family Code, we actually see various ways by which the “complex of positions, roles, norms and values” can be undermined by human action. As an example, simply failing to meet the essential requisites of a marriage can render it void ab initio (as in the case of, for example, same sex marriages, or marriages between minors). A more relevant example of profaning marriage can be found in the relevant provisions of legal separation, in which the State protects the marriage by separating the erring spouse. This is meant as a corrective measure to fix the marriage, in the hope that separating the spouses will allow them time to address whatever grievances exist between them and eventually allow the couple to reunite.

The question then becomes: what if the source of grievance is irreparable? What if the spouses cannot reconcile these differences? Framing the question differently, what if the spouses themselves are the ones profaning or violating the institution of marriage by their irreconcilability?

This, I believe, is the focal point of HB 1799. Inviolablility as a social institution means that the State must secure marriage from all sources of violation – including the spouses themselves. To do otherwise is to diminish the value of marriage as a social institution.

The Constitutional Commission must have thought so too. From their discussions on the provisions on family, the question that was repeatedly raised was whether or not our provisions on family and marriage proscribed Congress from enacting a divorce law. And their response was surprisingly clear and unambiguous:

“On Section 9, on the right to life, specifically on the proviso that “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic social institution”, Mr. Ople noted that the focus of the sentence is on the sanctity of family life. In this regard, he inquired whether the term “sanctity” could be interpreted as being inviolable and being pure, and whether this would disauthorize Congress from passing, for instance, a divorce law or some future legislations that would grant marital partners a wider freedom of choice than what they enjoy under existing law, in reply, Mr. Nolledo stated that this would not disauthorize Congress from enacting a divorce law in the future.”

– Journal of the 1986 Constitutional Commission, Vol. III, 09-19-1986 No. 86

X X X

MR. NOLLEDO: My last question is with respect to the Gascon amendment, just inserted now. It reads: “Sec. 2(e). The institution of marriage as the foundation of the family in effect shall be defended by the State.” Can the Commissioner give examples of the ways by which the State may defend the institution of marriage as the foundation of the family? Does it do away with divorce?
MR. GASCON: I guess it would discourage divorce. However, this will be subject to existing customary and traditional laws. In fact, it is to my knowledge that divorce is being practiced in, let us say, the Cordilleras or Muslim Mindanao.
MR. NOLLEDO: No, excluding Muslim Mindanao or the Cordilleras. Is Congress prevented from passing a divorce law with respect to Christian Philippines, if we adopt the provision that the State shall defend the institution of marriage as the foundation of the family?
MR. GASCON: What I mean when I encourage this proposal, “defend the institution of marriage,” and if the proposal will be pushed through, “the social institution of marriage,” is to emphasize that those who wish to marry and establish a family have the right to expect from society the moral, educational, social and economic conditions which will enable them to exercise their right to a mature and responsible marriage.
So, it is more a positive thing, that when we speak of defending the social institution of marriage, the society must encourage marriage by insuring the other conditions which will help support the basic institution or social institution of marriage.
Furthermore, what would be emphasized is that marriage cannot be contracted, except by free and full consent; encouragement of these basic traditions which we connect with the term “marriage.”
However, this is my personal opinion. I would personally discourage divorce in our culture.

X X X

THE PRESIDING OFFICER (Mr. Colayco): Commissioner Bernas is recognized.
FR. BERNAS: Just one question, and I am not sure if it has been categorically answered. I refer specifically to the proposal of Commissioner Gascon. Is this to be understood as a prohibition of a general law on divorce? His intention is to make this a prohibition so that the legislature cannot pass a divorce law.
MR. GASCON: Mr. Presiding Officer, that was not primarily my intention. My intention was primarily to encourage the social institution of marriage, but not necessarily discourage divorce. But now that he mentioned the issue of divorce, my personal opinion is to discourage it, Mr. Presiding Officer.
FR. BERNAS: No. My question is more categorical. Does this carry the meaning of prohibiting a divorce law?
MR. GASCON: No, Mr. Presiding Officer.
FR. BERNAS: Thank you.

– Record of the 1986 Constitutional Commission, Vol. 5, 09-24-1986 R.C.C. No. 91

X X X

THE PRESIDING OFFICER (Mr. Rodrigo): Commissioner Bengzon is recognized.
MR. BENGZON: This is just a clarificatory question because there are a lot of Commissioners who have some misgivings about the last phrase of the first sentence: “MARRIAGE IS THE FOUNDATION OF THE FAMILY AND SHALL BE PROTECTED BY THE STATE.” Is that the wording?
BISHOP BACANI: Yes.
MR. BENGZON: Will this in any way preclude Congress from approving a law on divorce?
MS. NIEVA: We discussed that yesterday and I think we reiterated that it does not.
MR. BENGZON: It does not.
MS. NIEVA: No.
MR. BENGZON: So, even if this section or this sentence is approved, Congress will still have every right to pass a divorce law under certain circumstances as it may deem fit.
MS. NIEVA: That is right, Mr. Presiding Officer.
MR. BENGZON: Thank you.

– Record of the 1986 Constitutional Commission, Vol. 5, 09-25-1986 R.C.C. No. 92

So, in case it wasn’t clear enough: The Constitutional provisions on marriage as the foundation of family and as an inviolable social institution DO NOT proscribe a divorce law.

Quick recap: “Inviolable social institution” was adopted for consistency among our laws, not for any particular world-view on marriage. Based on the intent of the framers and on a per-term language deconstruction of the phrase, it means that the State must secure marriage from human action that undermines its value. This includes acts of the spouses themselves. Finally, a study of the intent of the framers of our 1987 Constitution clearly show that the phrase “inviolable social institution” does NOT proscribe a divorce law.

In Part 2: Breaking down the alternative presented by Sen. Jinggoy Estrada, and more about the position of Catholic bishops and their supporters.

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