Religious Discrimination
Joaquin G. Bernas, S.J.

The first thing I should perhaps say, in the wake of the disqualification recently inflicted by the Comelec on priests and religious, is that we should thank the honorable ladies and gentlemen for the help they have thereby extended towards the awakening of hitherto silent clerics and religious. Up until recently, many of the members of the clergy and of religious congregations have looked on the behavior of the current Comelec as a temporary aberration which will pass with age and retirement and which therefore can be tolerated until reason again is able, in the not too distant future, to wrest command of the institution from the hands of madness. But now many are coming to realize that there is organization in the madness and that there are signs of a conspiracy against religion growing in visibility. Thus, ladies and gentlemen of the Comelec, thank you for your call to arms! Sometimes God does write straight with crooked lines.

Incidentally, it is refreshing to read the report that Commissioner Teresita Dy-Liaco Flores has broken rank from the solid Comelec phalanx. Commissioners should be independent minded enough not to jump every time Chairman Pardo or Commissioner Gorospe blows the whistle. And when the two newly nominated members of the Comelec finally face the Commission on Appointments, I expect the CA to grill them not only about their independence but also about their understanding of constitutional rights.

The latest Comelec salvo has warned NAMFREL as almost everyone by now knows, that unless it divests itself of officers, trustees and other employees who are members of the clergy or ecclesiastics and religious of whatever sect, NAMFREL will not be allowed to participate in operation quick count in connection with the coming elections. In other words, the religious sector has been singled out as an infection which, unless amputated, can fatally corrupt NAMFREL. Non-religious members of NAMFREL are clean; the religious sector, in the judgment of the Comelec, is unclean and should therefore be denied a right given to other citizens.

What you have here is blatant unequal treatment. Is this justifiable in the light of the constitutional command which says that no person shall be denied “the equal protection of the law”?

I am not saying that every form of classification made by law is prohibited. The Constitution does allow classification for purposes of different treatment. But jurisprudence prescribes that for classification to be valid it must be based on distinctions that make for real differences, that the classification must apply to all members of the class, and finally that the classification must be reasonably germane to the purpose of the law. That’s basic First Year Constitutional Law.

Let us take a look at that last requirement -- that the classification must be germane to the purpose of the law. Implicit in this is that the classification must be made by law, that is, by the legislature. The Comelec is not the legislature. It can only implement classifications made by law. It has no authority to make classifications unless, on the basis of clear standards set by law, it is given the delegated power to classify. There has been no such delegation.

Moreover, even if there were a law making the classification, the law itself would be, in the instant case, unconstitutional. For a classification to be constitutional, it must be germane to the purpose of the law. The overriding purpose of all election law, especially those related to the conduct of the polling exercise, is to keep such exercise honest, peaceful and credible. For many years now, NAMFREL, with overwhelming participation of elements from the religious and clergy sectors, has been instrumental in safeguarding the polling exercise. Not once has its capacity to safeguard honesty, peace and credibility been questioned. It would seem now, however, that the members of clergy and of religious groups are being disqualified precisely because of their capacity to contribute to honesty, peace and credibility. The Comelec has thereby succeeded in making the constitutional body stand on its head. We are with Alice in Wonderland!

One final point. Although the Constitution allows classification by law for valid reasons, there are certain types of classification which not even the legislature can make. For instance, Congress may not discriminate against naturalized citizens as against natural born citizens. Only the Constitution may prescribe different treatment for naturalized citizens and natural born citizens.

Classification based on religion is another one which not even Congress can make. The peremptory command of the Constitution is that “No religious test shall be required for the exercise of civil or political rights.” The disqualification imposed by the Comelec is not only without authority of statute but is also an act imposing a religious test for the exercise of civil and political rights.