By Carolina S. Ruiz Austria

The word "Heresy"

was used by Irenaeus in Contra Haereses to discredit his opponents in the early Christian Church. It has no purely objective meaning without an authoritative system of dogma.

Tuesday, August 22, 2006

Freedom and Good Faith: Dreaming up Democracy

When acclaimed Philippine Constitutionalist and former Justice of the Supreme Court, Isagani Cruz called gay people “pansies,” and vented his frustration over what he observed as the commonness and “everydayness” gay people and things gay, he also ridiculed homosexuals exhibiting varying levels of mean spiritedness (apparently in order of their “degrees” of being deemed tolerable by the honorable Justice Cruz).

The irony of course is thanks to him, the Lesbian, Gay, Bisexual and Transexual (LGBT) movement, got yet another opportunity to address discrimination against LGBTs as a human rights issue.

What got my attention though was one reader’s response to another PDI columnist who not only expressed vehement disagreement with the Cruz opinion, but also took the brave leap of “outing” himself on the occasion. The reader chided the columnist supposedly for expecting anything less from “democracy” to the point of accusing the columnist of being "bigoted" for avoiding "honest views" expressed on "his gender." Disagreement and the avowed right to hold opposing views is true enough, often touted as a key feature of modern day democracy.

This in turn got me thinking about a forum I attended last August 22 about the proposed House Bill on “Conscientious Objection,” filed before the 13th Congress.

The Bill purportedly prohibits discrimination against conscientious objectors in the health and medical profession, because of their refusal to provide medical services and procedures they object to as well as any information regarding such services.

The bill also purports to be founded on the hallowed principles “religious freedom” as enshrined in the 1987 Philippine Constitution’s “free exercise clause.”

Dubious Freedom Fighters and the SPIN on Democracy

Just like the reader who defended Cruz’ homophobia as free expression, HB 5028 also utilizes the same “sacred” principles we usually associate with democratic society, that is freedom of religious expression, in its most hallowed sense, in the context of a democracy.

The Bill actually expands the concept of "conscientious objection," as a claim not only for individual persons or health professionals but for entire clinics and hospitals (corporate persons) and likewise applies it not solely to the performance of the so-called "objectionable" medical practice or procedure, but also includes the duty to provide information on the matter objected to.

Even more ironic is that the bill is founded on and purports to invoke the right against "discrimination," on the part of the persons it seeks to provide legal defenses to.

These two situations present current day debates (raging issues), happening over a backdrop of challenged notions of democracy, freedom and even equality, all of them classic notions held sacred in modern "liberal democracy."

On one hand, we have an avowed Constitutionalist able to name drop and quote Voltaire defending what undoubtedly was (in this day and age) "unpopular speech" (his virulent homophobia)and invoking the best of our democratic ideals.

The Bill on conscientious objection also invokes similar principles, this time focusing on "a right against discrimination," which is founded on our core principles on equality and equal protection, to avoid liability from what would otherwise be considered the ethical responsibility of health professionals.

On the surface, these democratic principles are absolutely perfect. That is afterall what they are, idealized notions in the abstract, founded on pure notion of all persons (men, actually as feminists point out), being free and equal.

In fact, arguing in the abstract, doesn't lend to illustrating the real differences any better, in the exchanges.

When the now embattled Justice Cruz defends his unpopular speech and accuses others of seeking to limit his freedom (of expression), he is conveniently skirting (I hope he doesn't mind my use of the term) issue of why he feels entirely justified in perpetrating ill treatment of persons on the basis of sex identity, that is in this case picking on homosexuals. Instead he cries foul at the disagreement expressed over his opinion.

How can it be that his tirrade of hate against gay people enjoys the protection accorded free speech in a democracy when an opinion in turn, expressing a personal experience of hurt and insult stemming from his tirrade, is CENSORSHIP? This is indeed unfortunate.

It isn't any wonder either how now, Ultra-Conservative Catholics are seeking to use the self same notions of freedom and non-discrimination as excuses for committing discrimination against people (their patients!) who may have different religious beliefs.

The key to understanding the various "rights claiming" on either side of purported religious or political fences of course has long been pushed forward by feminists in critiques of liberal philosophy: that is, simply put, an analysis of power relations.

Obviously, the former Justice enjoys a lot of "democratic space," and in fact is one of a few fortunate enough to have both the educational background, influence and privilege to actually get paid to express his views. In the "free market" of ideas, his opinion already holds and occupies a space of privilege. Indeed, despite his wounded claims of having been the target of an undemocratic opposition (supposed naysayers unknowing in the ways of democracy), the LGBT community, as vibrant and articulate its leaders and communities are now, have a long way to go before they can ever achieve acceptance and even enjoy the respect accorded to other human beings!

Likewise, as much as conscientious objection is a valid claim and remains an important feature and aspect of religious freedom, we cannot keep on discussing it in the abstract when in our context, the dominant and powerful Catholic institutions (led by the CBCP) are pushing for policies to delimit other's (non-Catholics and dissenting Catholics'), free expression (i.e. lobbying against the Reproductive Health Bill and contraceptive availability, post-abortion emergency care etc.). It begs asking, "whose conscience" are we speaking of? (Do we purport a monopoly of conscience to a singular religious institution?)

I also remember how in the periods it took for the women's movement to pass a host of laws to address violence against women and sexual harassment as forms of discrimination, we were asked numerous times to prove our case through empirical evidence (which of course women's groups did quite easily.)

When the House Bill on conscientious objection was presented, there was never even a hint of a claim that "discrimination" was being experienced already and was an emerging pattern among conservatice Catholic health practicioners.

Imagine then a situation where a patient wouldn't even have the full gurantee of receiving complete information on the various available treatments and procedures she or he may consider, all because a conscientious objector can by herself or himself decide what procedures and medical practices she or he is open to mentioning!

As one panelist in the forum (Chancellor Marita Reyes of UP Manila) pointed out, health professionals should review and be guided by their oaths upon which they base their ethical guidelines! What sort of unethical behavior would be sanctioning if the all powerful health professional (the doctors) are granted not only the exclusive right to EXERCISE their religion but also to IMPOSE it upon the patient!

Likewise, the challenge of the philosopher (current Dean of the College of Social Sciences and Philosophy, Prof. Zosimo E. Lee) pushes the debate into more meaningful interrogation: What do we mean by conscientious objection? The point being that "conscientious objection" presupposes capacity for thought, deliberation and actual reflection regarding the actual conflicts between a scientific procedure and the foundations of one's faith!

Former Dean, Professor Raul Pangalangan of the College of Law also mapped out the judicial trends on free religious expression, both in the US and local jurisprudence, noting that the proposed bill is unparalled in its scope and seems to be expanding "conscientious objection" to the point of defeating the principle of free exercise. That is, if conscientious objectors in the health professions invoke a right not only to be involved in objectionable procedure but also withold all sorts of information and referral from patients, what happens to the right of patients to health care and medical treatment?

Moreover, the bill's treatment of hospitals (corporate entities) as like individuals and on the level of individuals exercising a right to conscientious objection, is a whole new take on the concept. If a lone health professional in a Catholic Hospital decides to provide emergency post abortion care which the hospital objects to, whose right prevails? Surely, a physician who respects life and comes to the aid of a woman in need of post abortion care can equally assert a right to do as she/he believes and make a medical intervention? Surely this is an exercise of "conscientious objection" within the hospital?

Dreams of Democracy

No doubt, we live in very interesting times. Even the mantra of "democratic ideals" will no longer suffice in guarding against the most manifest forms of discrimination, injustice, violence and plain and simple (run of the mill) ill treatment and bullying. After all, above anything else, these two parallel examples illustrate how the tables are being turned and the language of "democracy" (and the usual symbols we have to represent it) are as easily invoked in all manner of hate speech, fascist propaganda and religious fundamentalism.

It is every bit ironic that a noble notion like freedom can be used as an excuse to oppress others and perpetrate bigotry. Of course because of the limitations of the same "liberal legalism," censorship is something which supposedly occupies the opposite end of whatever form of "free" speech. This is however a trap, a play of legal liberalism.

Censorship, especially, institutional (state and corporate) censorship have never turned out to be worthy solutions, even if invoked with the best of intentions (that is according to its proponents). For when have dominant views ever been censored and marginalized ones preferred? Save perhaps for states like Canada, where such issues are being hotly debated along the often converging lines of free speech-censorship-and anti-discrimination-hate speech divide, most states (as ours), systematically supress the already marginal views out there and privilege the dominant views.

In fact, expressing marginal views (i.e. advocating for gay rights, and an anti-gay discrimination bill) is in huge measure, a form of dissent precisely because it is in the margins of the established order. Given this state of affairs, the strategy of framing the debate as "who is a better libertarian? who is the freedom fighter and who is the censor?" actually avoids the issue plain and simple. The real debate between those who discriminate against others by reason of sex, gender, race, class or ethnicity and those of us who want such forms of oppression to end, lies not in any given "right" (legal or otherwise) to speak, act or believe, but rather on pure and simple everyday ethics. How do we want to live as human beings and how do we treat each other with respect? This is of course unchartered terrain as far as most liberal legal systems go, after all the terrain of ethics is in the everyday, not solely in institutional fora, let alone formal structures. In its most ordinary form, it is courtesy and being a good neighbor which was perhaps in the heated exchanges was best exemplified by Anne Marie Lim (I am proud to say, a former student) who in a statement said: "Cruz has been more privileged than us in some ways, but in the end he is a coequal human being to whom we, as homosexuals, are willing to extend the basic courtesy and respect that he has failed to extend to us.It is not too late. We hope we can have persons like Justice Cruz beside us as we continue to strive for equality for all."

Recommended readings:

More Censorship or Less Discrimination? Sexual Orientation Hate Propaganda in Multiple Perspectives by Jonathan Cohen

This article by Jonathan Cohen outlines the Canadian debacle over the issue of hate speech as discrimination and issues over censorship.

What's Wrong with Democracy: From Athenian Practice to American Worship;Chapter 2 Democracy and Demagogues By Loren J.Samons II

This reading takes a historical approach and grapples with how far different notions around "democracy" have changed, from the ancient Athenian/Greek and Roman practices to current day American civil liberties. Very intersting in this article is how enduring notions such as the electorate (the vote) and majority rule did not necesarrily have the same value and association with ancient democracies.


Blogger libay said...

hi atorni! si libay (cantor) po ito. ging of leap forwarded this blogpost of yours sa isang egroup namin (lagablab yata). i just wanted to say thanks for the lengthy and very educational discussion of these issues. glad to know that we're not "truly alone" sa isagani chenelyn na itich :) take care and keep on blogging! the blogosphere needs voices like yours. i'm at kung may time ka :) ciao! hi kay "sir" to^!

1:21 PM  

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