Free exercise of religion

In the landmark case of Estrada vs. Escritor, former Chief Justice Renato Puno traces the long history of jurisprudence on religious clauses in Philippine law, from the signing of the Treaty of Paris between the United States and Spain on December 10, 1898 when religious freedom was extended to the Philippine Islands by the Americans up to the 1987 Constitution. A close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of interpretation – separation and benevolent neutrality – the well-spring of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation.

Article 18 of the International Covenant on Civil and Political Rights (ICCPR) allows governments to restrict religious freedom to some measure in order protect a legitimate state interest, like a public health emergency. The Siracusa Principles on the Limitation and Derogation Provisions embodied in the ICCPR, among others, set the parameters of public health measures. Simply put, international law allows governments to derogate to a certain extent on some rights and freedoms, including freedom to practice religion, but only when necessitated by the emergency, and only with measures that are reasonable and proportionate to the situation obtaining.

The World Health Organization (WHO) has noted that in the response to this pandemic, “all countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights”. In other words, governments must do a balancing act in their fight against the public health emergency and in restricting the freedom of the people to practice their religion.

In the Philippines, freedom of religion is given a preferred status by the Constitution. As a matter of legal principle and constitutional dicta enunciated in Article 3 Section of the 1987 Philippine Constitution, religious freedom – that is the right to believe and to act on such belief – is a guaranteed right. The same constitutional provision also guarantees separation of church and state. Religious discrimination, intolerance and persecution of religious minority groups – are proscribed and can never be countenanced.

The only recognized limitation on this right is the presence of a clear and present danger of a substantive evil which the State has the right to prevent. Unanimously recognized as an imminent and serious threat, the continued spread of the coronavirus is a clear and present public health danger that sets in motion the limitations in the exercise of religious freedom. However, those limitations must not be unreasonable, arbitrary, and excessive.

In my view, the government’s restrictions on religious worship, while justified at the start of the pandemic given the many unknowns at that time, are no longer justified by the science and therefore violates our free exercise of religion.

For sure, the outbreak of the pandemic added a new dimension to religious worship.  Religious leaders, conceding the threat posed by the coronavirus, took it upon themselves early on to take measures that will prevent the further spread of the contagion. For the Roman Catholic church, this meant the cancellation or suspension of masses, confession, and other liturgical services; or if physical presence is ever allowed, limiting the number of participants.

Other liturgical readjustments were also put in place to adopt to the extraordinary circumstances.  Many services migrated online where spiritual, if not sacramental, communion is possible.

From the beginning, these limitations were understood to temporary in character and will be restored once the threat and danger pass. Mindful of this, Archdiocese of Manila Apostolic Administrator Bishop Broderick S. Pabillo argues that religious services are essential services. The needs of the souls are people demand this recognition. Alarmed at the highhandedness of government’s regulation of religious services, Archbishop Socrates Villegas warns: “The foolish lead by fears and threats. Not God. The way of God is freedom. He invites. He does not twist arms”. “For Covid mocks the control freak in us”, he added.

Moving forward, I respectfully suggest, if it is not being done yet, for the churches, including the Catholic Church, to convene a commission of experts – liturgists, medical doctors, legal specialists, social psychologists, crowd management experts, etc. – to come up with a solid proposal on how they  can manage risks when it allows services. For example, the clear consensus is not to have many people together in indoors sites which means strict physical distancing indoors while outdoor services can be more lenient. Contact tracing must be very strict so infections are monitored properly and interventions implemented if they happen. Receiving communion would be a particular challenge for the Catholic Church and liturgists and medical experts would have to brainstorm to arrive at good procedures.

I miss going to Church and experience the sacraments. It’s an intense desire that burns in my heart. There are ways that can be done safely.


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