Lee: Separation of Church and State

THERE was recently a large gathering of a religious group in Edsa. The religious group claimed that their leaders were subjected to the filing of unfair criminal cases pending before the Department of Justice (DOJ), and thus the group gathered to protest those cases. They invoked that there should be separation of Church and state and that the DOJ should step away from, and have nothing to do with, the internal affairs of the church.

However, one wonders if their interpretation of the doctrine of separation of church and state is correct under those facts?

Section 6, Article II of the 1987 Philippine Constitution provides that "the separation of Church and State shall be inviolable."

This section must be taken in conjunction with Section 5, Article III of the Constitution, which also provides that "no law shall be made respecting an establishment of religion, or prohibiting the free expression thereof."

These provisions provide for what is called the non-establishment clause or the non-establishment principle. Its purpose is to protect the values of voluntarism and insulation of the political process from interfaith dissension. (Bernas Primer, p. 79). In other words, the purpose of the non-establishment clause is to insulate government from religion. As my Constitutional Law Professor, noted constitutionalist Father Joaquin Bernas would put it, "its minimal sense is that the state cannot establish or sponsor an official religion."

Based on existing jurisprudence on the subject matter, Father Bernas has stated that "what non-establishment calls for is government neutrality in religious matters. Such government neutrality may be summarized in four general propositions: (1) government must not prefer one religion over another or religion over irreligion because such would preference would violate voluntarism and breed dissension; (2)government funds must not be applied to religious purposes because this too would violate voluntarism and breed interfaith dissension; (3) government action must not aid religion because this too can violate voluntarism and interfaith dissension; (4) government action must not result in excessive entanglement with religions because this too can violate voluntarism and interfaith dissension. (Bernas, Commentary, p. 336).

However, this does not mean that the State cannot intervene in Church related matters, especially when laws, or violations of laws, are at issue.

For instance, in the case of Austria v. NLRC, (G.R. No. 124382), a pastor who was terminated by the Seventh Day Adventist sued that church before the National Labor Relations Commission (NLRC). His dismissal was found to legal (i.e. the NLRC ruled in favor of the church). The pastor then appealed and argued that the NLRC had no jurisdiction over him because the matter was an ecclesiastical affair outside the NLRC's jurisdiction. In effect, the pastor was invoking separation of church and state. However, the Supreme Court ruled that the case, being a labor issue, did not concern an ecclesiastical (or purely religious affair). It was a secular matter and had no relation whatsoever with the practice of faith, worship or doctrines of the church, and thus the NLRC had jurisdiction. (Id).

In my opinion, the same could be said then about the current controversy on separation of church and state. One cannot claim that this principle allows a church to question the jurisdiction of the DOJ or for them to claim that the DOJ, being part of government, should be kept separate from their church and cannot intervene. Jurisprudence directly contradicts such an argument. (See Austria case, Id.).

It must be recalled that there are allegations here of a crime, and thus a criminal case was filed before the DOJ. The DOJ is mandated by law to investigate and to determine whether or not there is probable cause for the filing of an Information before the Courts. The investigation of a crime being a purely secular matter (and not an ecclesiastical or purely religious one), then the non-establishment clause which requires the separation of church and state, does not apply. Whether or not those criminal cases will prosper is, of course, another matter entirely and not the subject of this discussion.

In short then, the doctrine of separation of church and state is, in my opinion, being incorrectly invoked by the religious group. Current jurisprudence does not seem to allow for such an interpretation.

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Atty. Kelvin Lee is a Partner of the Teves Cabiten Polinar Lee & Partners Law Firm. The opinions expressed herein are solely of Atty. Lee. This column does not constitute legal advice nor does it create a lawyer-client relationship with any party. You can reach Kelvin through his office at tcpl.law@gmail.com.

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