We continue from where we stopped the last time.
The tricky part is how the Supreme Court framed the issue, and I will show later why this is relevant to the outcome of the case. The Supreme Court stated that the issue of this case is as follows:
"Whether or not respondent should be found guilty of the administrative charge of “gross and immoral conduct.” To resolve this issue, it is necessary to determine the sub-issue of whether or not respondent’s right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable."
The Supreme Court identified this issue based on the applicable laws. Escritor was charged with committing “gross and immoral conduct” under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx."
Escritor, however, claims that this rule is not applicable to her, because based on the religious beliefs and practices and moral standards of her religion, the Jehovah’s Witnesses, her conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for which she should be held administratively liable.
Here the Supreme Court jumps to the conclusion that "While not articulated by respondent, she invokes religious freedom under Article III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights."
The premise of this conclusion is that the "disgraceful and immoral conduct" of having a conjugal arrangement with another woman's husband is a function of an "establishment religion". Thus, imposing a penalty for this conduct on someone who is not a member of the "establishment religion" and whose religion in fact accepts and blesses this arrangment may give rise to a constitutional issue on religious freedom. In other words, the Supreme Court is saying that conjugal relations is a religious matter, and imposing restrictions on conjugal relations may conflict with the religious beliefs of the citizens of this country.
But here is the rub: isn't conjugal relations also a secular or non-religious concern. As a matter of fact, it is subject to restrictions provided by law. This is precisely why we have laws prohibiting adultery, concubinage, and bigamy. The relationship between Escrito and her lover, at the very least, is one of concubinage, since her lover is admittedly married to another woman. Thus, the Supreme Court could have avoided he constitutional conflict after all.
The "R" word did this case in for the Complainant. But his counsel could have easily argued that religion is not in issue here. What was in issue here was whether having relations with someone else's husband constituted "disgraceful and immoral conduct". Had the issue of this case been framed this way, the Supreme Court would have to proceed first in resolving the issue of what constituted disgraceful and immoral conduct, and then finding the answer to the question on whether in applying contemporary Philippine standards of morality, hooking up with another woman's husband is immoral or disgraceful. No religion word anywhere.
This brings us to the issue on why this provision on "disgraceful and immoral conduct" actually exists on our statutes. By this provision, the law actually incorporates the entire sub-set of immoral and disgraceful conduct into the realm of prohibited and legally punishable acts as provided by positive law. Yet, how could the Supreme Court define what is disgraceful and immoral? This we could have found out if the issue was framed without the "R" word.
The Supreme Court, however, saw religion written all over the case. So, we have to take it from there.
(To be continued)