Thursday, July 31, 2008

Conscience and the Law


-Guiller B. Asido-

“Conscience doth make cowards of us all”
William Shakespeare, Hamlet, Act III, Scene I


This essay attempts to examine the interplay between the conscience and the law by focusing on conscientious objection. This will be a short discourse given the limitations of research materials available to this writer at this time. However, despite these limitations the writer shall endeavor not to sacrifice the substance of the discourse by presenting only concepts.

This essay is divided into three parts. The first part shall discuss the relationship between the law and conscience, with a segment devoted to defining the terms of conscience and morality. The second part of this essay shall focus on conscientious objection – its concept, development, and comparative analysis in other jurisdictions. The third part shall discuss the recognition and application of this legal doctrine in Philippines’ jurisprudence and in other jurisdictions.

Law and Conscience: A Discussion

The Conscience and Morality

While there is no generally accepted definition of conscience, there are different approaches on how conscience should be defined to wit, religious, secular and the philosophical.

In the religious view of the “conscience,” reference must be made to the Divine Command Theory and the works of St. Thomas Aquinas . Under the Divine Command Theory, what is in accordance with God’s command is moral, and what is contrary to that command is immoral. This seemingly straightforward answer in turn raises a famous question in the history of Western theology and moral philosophy. It was first asked by the ancient-Greek philosopher Plato. In his tale Euthyphro the character Socrates (who had also been a real-life philosopher and former tutor of Plato) asks: Is something moral because the gods command it, or do the gods command it because it is moral? This is referred to as the ‘Euthyphro dilemma’, because either interpretation apparently raises serious theological problems.

The secular view of conscience, on the other hand refers to the psychological, humanitarian and authoritarian aspect.

Law and Conscience

In law, conscience is defined as the “moral sense; the faculty of judging the moral qualities of actions, or of discriminating between right and wrong; particularly applied to one’s perception and judgment of the moral qualities of his own conduct, but in a wider sense denoting a similar application of the standards of morality to the acts of others. The sense of right and wrong inherent in every person by virtue of his existence as a social entity; good conscience being a synonym of equity. In law, especially the moral rule which requires probity, justice, and honest dealing between man and man, as when we say that a bargain is “against conscience” or “unconscionable,” or that the price paid for property at a forced sale was so inadequate as to “shock the conscience.”

The right to conscience is a recognized human right under Article 18 of the Universal Declaration of Human Rights , which reads as:

Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

This was reiterated in Article 18 of the International Covenant on Civil and Political Rights which reads as:

Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

The right to freedom of thought, conscience and religion is an unqualified and non-derogable right under the International Covenant on Civil and Political Rights (ICCPR) This means that it applies in times of war or public emergency threatening the life of the nation as well as in peacetime. Nor is the manifestation of this right subject to limitations on the grounds of national security, unlike some of the other rights under the Covenant.


Conscientious Objection: Concept and Development

Concept of Conscientious Objection

Conscientious objection is largely considered as an exercise of the right to dissent. It is a breach of law for the reason that the agent is morally prohibited to obey it, either because of its general character (absolute pacifists or conscriptors) or because it extends to certain cases and should not be covered by it.

The international definition of conscientious objection officially broadened in 1998, when the United Nations Office of the High Commissioner for Human Rights document called “Conscientious objection to military service, United Nations Commission on Human Rights resolution 1998/77” officially recognized that “persons [already] performing military service may develop conscientious objections.”

As a form of dissent, it may be distinguished from the two other categories of dissent or revolutionary and civil disobedience. Revolutionary acts and civil disobedience are cases of political action, they are essentially public auctions designed to have a political effect. Conscientious objection is not. It is essentially a private action by a person who wishes to avoid committing moral wrong by obeying a totally or partially morally bad law.

The definitions of conscientious objection and civil disobedience slightly differ among thinkers, Rawls sees the two concepts as exceptions to the prima facie duty to obey the law. He refers to civil disobedience as “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government”. Rawls states that conscientious objection might somewhat overlap a broad interpretation of civil disobedience; conscientious objection does not require appealing to the sense of justice of the majority, and does not seek common ground, but entails the premise that one’s personal conscience – not necessarily political – is at odds with the constitutional order. The two categories are therefore different, but not mutually exclusive.

Paul Anthony Duper points out that conscientious objection is a negative right. He writes:
An objection of conscience, where recognized under a legal system is a negative right. As with other legal jurisdictions, if recognized by the United Kingdom Parliament or by the English courts, it will relieve an individual from carrying out a certain act otherwise required by law, on the grounds that the person cannot perform such an action or grounds of conscientious objection. Grounds of conscientious objection are deemed to be a legitimate defence.

Professor Raz however in his essay “A Right to Dissent? II. Conscientious Objection,” writes that, there are drawbacks to conscientious objection. These drawbacks are:

(a.) Right is wide open to abuse. Entitlement for it depends on a person’s moral convictions. Such matters are hard to establish by independent evidence. The word of the person invoking the right is almost invariably the only direct evidence. The opportunities for abuse are countless.

(b.) Existence of right encourages self-doubt, self-deception and in general undeniable form of introspection;

(c.) Unless the right is applied in a simple declaration by the objector, the intrusion of a right to object involves sanctioning some degree of public intrusion into the private affairs of individuals.

Development of Conscientious Objection

The Peace Pledge Union, the oldest secular and pacifist organization in the United Kingdom provided a history on the development of conscientious objection:

Conscientious objection, however, has historical roots going back much further, and linked with the major religious movements which have left their mark on the history of Europe.

Countries with a Protestant tradition, with the exception of Switzerland, were the first to make provision for conscientious objectors. Exemptions from service were granted in Holland as early as 1549 and 1580. In 1757 a British law allowed exemption from compulsory militia service, and in the early 19th century Napoleon granted exemption to Protestant Anabaptists.

The Protestant countries of continental Northern Europe were the first to incorporate this right into their legislation. Norway did so in 1900, Denmark in 1917 (it was not involved in the First World War), Sweden in 1920, the Netherlands even wrote it into their constitution in 1922, and Finland enacted it in 1931.

Anglo-Saxon tradition stood further apart. The former militia system in Britain fell into disuse in the early 19th century, and the continental system of universal male conscription was not adopted. The former British colonies, such as the USA, Canada, Australia, New Zealand, likewise did not adopt universal conscription, which may be contrasted with the former Spanish colonies of Latin America, where conscription became, and largely remains, the norm.

In 1916 the British government felt constrained to introduce military conscription, because voluntary recruitment could not keep pace with the ever-increasing casualties of the First World War. It was acknowledged, however, to be an extremely controversial measure, and it was seen essential, as a compromise, to incorporate provision for conscientious objection from the beginning. The whole island of Ireland, then part of the United Kingdom, was exempted from conscription, for fear of a popular revolt. Conscription, with the right of objection, was reintroduced in Britain from 1939 to 1960. The issue in the UK has been whether conscription should exist at all, in contrast to continental Europe, where conscription has traditionally been taken for granted, and the issue has been controversy over conscientious objection.

The Catholic countries of Europe - apart from Ireland, where conscription has never been adopted - took half a century longer than their Protestant counterparts to recognize the right to object. France and Luxembourg recognized it in 1963, Belgium in 1964, Italy in 1972, and Spain in 1976, after the death of Franco (confirmed in the new constitution of 1978). Portugal included the right in its new 1976 constitution, following the "carnation revolution". The religiously "mixed" country of West Germany had the issue decided for it by the occupying Allies, who insisted, at British instigation, upon recognition of conscientious objection being incorporated into the post-war re-introduction of conscription in 1955.

The difference between countries with Protestant and Catholic traditions may be explained by the political consequences of different theological perceptions of the role of the faithful, and therefore of the individual citizen. Under Protestantism, Christians see themselves as having a direct relationship with God, to whom they are individually and personally responsible, under conscience, for their actions. In Catholicism, the Church seeks to be the mediator with God, and to take corporate responsibility, by papal decree, for moral issues.

Protestants, moreover, include a number of different churches, each with its own characteristics derived from the conscientious belief in a particular view of doctrine and organization. These include, especially, the historic 'peace' churches - the Anabaptists, the Mennonites, the Nazarenes, the Dukhobors, and the Quakers. Religious freedom and the freedom of conscience are the foundations which guarantee the equilibrium of these societies.

Catholicism, on the other hand, has imbued societies where it is the dominant religion with a more submissive attitude towards the hierarchy and dogma of the Church. Thus, Pope Pius XII proclaimed, in his 1956 Christmas message, that a Catholic citizen "cannot invoke his or her own conscience in order to refuse to render the services and perform the duties established by law". This did not, however, prevent certain young Catholics, such as the Belgian Jean van Lierde, from declaring themselves conscientious objectors. It may be that such a stand influenced the Second Vatican Council, in 1962-63, to pronounce that "it seems equitable that the laws should provide with humanity for those who, for reasons of conscience, refuse to use weapons, provided, however, that they agree to serve the human community in another way".

A special case in Europe is that of Greece, which delayed until 1997 before enacting a law allowing alternative civilian service for religious conscientious objectors, after many calls from the European Parliament and other international pressure. Even then, the law applies only to members of the Orthodox Church, which has never supported conscientious objectors - not surprisingly, in view of the close links between Greek nationalist fervour, the Greek state and the Greek Orthodox Church.

Conscientious objection arising from non-religious - humanist, socialist, and anarchist - motives developed in Europe from the early 20th century, particularly in the aftermath of the First World War. It found concrete expression in the establishment in 1921, at Bilthoven, Netherlands, of the War Resisters' International (WRI), with its founding Declaration, "War is a crime against humanity. We are therefore determined not to support any kind of war and to work for the abolition of all causes of war". The WRI (named in conscious imitation of the Socialist and Communist Internationals) soon began to collaborate with another international organisation, this time with Protestant motivation and ecumenist aims, the International Fellowship of Reconciliation (IFOR), founded in 1919, also at Bilthoven.

Two Belgian nonviolent anarchists, Lio Campion and Hem Day (pseudonym for Marcel Dieu) caused a great stir in 1933 when they were tried for refusing conscription, and contributed to increased commitment in humanist circles to recognition of conscientious objection. This was the background to a common parliamentary struggle by humanists and Christians when Jean van Lierde began his conscientious objection in 1949, which culminated in legalisation for concientious objection in 1964. The freethinker Louis Lecoin underwent a long hunger-strike to bring about recognition of conscientious objection in France in 1963.

In the former Soviet bloc of central and Eastern Europe conscientious objection was not allowed. The needs of a totalitarian militarist state were incompatible with recognition of freedom for citizens expressing opinions at variance with official doctrine, as was the case with conscientious objectors.

There had originally been a decree of the Council of People's Commissars in Soviet Russia, signed by Lenin on 4 January 1919, which established conscientious objection for those with a religious motivation, but under Stalin it ceased to be applied from 1929-30 onwards. Exceptionally, conscientious objection was recognized in East Germany by a decree of 7 September 1964, which allowed the performance of unarmed military service. The Protestant Church, often the focus of resistance to East German state oppression, was undoubtedly influential in this decision.

Since the dismantling of the Soviet bloc, Poland (1988), Hungary (1989), Lithuania (1990), Estonia (1991), Czech Republic and Slovakia (1992), Ukraine (1996), Bulgaria (1998) have begun to implement a right to conscientious objection.

To return to international pronouncements: the Human Rights Commission of the UN first formally recognized the right to conscientious objection on 10 March 1987, and appealed to states to implement it. In a later resolution of 22 April 1998 the Commission welcomed "the fact that some states accept claims of conscientious objection as valid without inquiry". This was in line with a European Parliament resolution of 7 February 1983, which acknowledged that "no court or commission can penetrate the conscience of an individual and that a declaration setting out the individual's motives must therefore suffice in the vast majority of cases to secure the status of conscientious objector". West Germany acted upon such a principle for a short period, but the only state in Europe now putting it into effect is Sweden, where there is a free choice for all young men between military service and civilian service.

The question of attempting to test the validity of a particular conscientious objection serves to highlight the fact that legal provision for objection by no means prevents hardships and injustice. Although Britain can claim some credit for refusing to bring in conscription without simultaneous provision for conscientious objection, almost a third of objectors in the First World War - 6000 out of 16000 - ended up in prison because of the way the system was administered. Injustices in other countries have included the running of tribunals by the military, with an obvious in-built bias, putting 'alternative service' schemes under the control of the military, and setting the period of alternative service up to twice as long as military service. At the other extreme, conscientious objectors in Germany (including the annexed Austria) were executed during the Second World War, and as late as 1949 two objectors were executed in Greece.

The Council of Europe Parliamentary Assembly returned to the issue of objection to military service in Resolution 1518 of 23 May 2001, recommending that the right of conscientious objection be formally incorporated into the European Convention on Human Rights. A particular factor influencing the Council was that five member states, Albania, Armenia Azerbaijan, Macedonia and Turkey had no provision at all for conscientious objection, and two others, Cyprus and Russia, had no effective provision.


Application of Conscientious Objection

Conscientious Objection in other jurisdictions

Despite the fact that international institutions like the United Nations and the Council of Europe regard and promote conscientious objection as a human right, it still does not have legal basis in most countries. Among the roughly one hundred countries that have conscription, only thirty (30) countries have some legal provisions, 25 of them in Europe. In Europe, most countries with conscription more or less fulfill international guidelines on conscientious objection. In many countries outside of Europe, especially those where there are armed conflict, conscientious objection is punished severely.
United States Canada United Kingdom Germany Spain
The First Amendment to the American constitution, passed in 1791 simply states:
“Congress shall make no law respecting and establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In the United States, there are two main criteria for classification as a conscientious objector. First, the objector must be opposed to war in any form, Gillette v. United States, 401 U.S. 437. Second, the objection must be sincere, Witmer v. United States, 348 U.S. 375. That he must show that this opposition is based upon religious training and belief was no longer a criterion after cases broadened it to include non-religious moral belief, United States v. Seeger, 380 U.S. 163 and Welsh v. United States, 398 U.S. The Canadian Charter of Rights and Freedoms, Section 2 (a) provides that “Everyone has the following fundamental freedom (a) Freedom of conscience and religion.”

Mennonites in Canada were automatically exempt from any type of service during World War I by provisions of the Order in Council of 1873. During World War II, Canadian conscientious objectors were given the options of noncombatant military service, serving in the medical or dental corps under military control or working in parks and on roads under civilian supervision. The country recognized the right not to fight in the 18th century following problems with attempting to force Quakers into military service. The Militia Ballot Act of 1757 allowed Quakers to be excluded from military service.

Britain retained conscription, with rights of conscientious objection, as National Service until 1960. The use of only volunteer soldiers was hoped to remove the need to consider conscientious objectors. Ever since the First World War, however, there have been volunteer members of the armed forces who have developed a conscientious objection to continuing in service; a procedure was devised for them in the Second World War, and, with adaptations, it continues to this day. According to Article 4(3) of the German constitution (Grundgesetz): "No person shall be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law."
According to Article 12a, every adult male is obligated to military service called Wehrdienst. The draftee can apply for an alternative service called "Zivildienst" (civilian service), if he declares conscience reasons. The civil service may not last longer than military service. This rule has been applied since October 1, 2004.
The Spanish Constitution of 1978 acknowledged conscientious objectors.]he Spanish parliament established a longer service (PrestaciĆ³n Social Sustitutoria) as an alternative to the Army.

Conscientious Objection in the Philippines

The application of conscientious objection in the Philippines has so far been limited to the realm of the freedom to believe and to act on one’s own belief. The realm of belief and creed is infinite and limitless, bounded only by one’s imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds, and poses no difficulty. The difficulty in interpretation sets in when belief is externalized into speech and action.

In the 1959 case of Gerona vs. Secretary of Education, the issue was raised on whether or not children of members of the Jehovah’s Witnesses may be expelled from school for their refusal to comply with an order of the Secretary of Education requiring compulsory flag ceremonies in public schools, the signing of the national anthem and reciting the patriotic pledge. The Supreme Court ruled that:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Under the complete separation of church and state in our system of government, the flag is utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious ceremony. The flag salute is no more a religious ceremony than the taking of an oath of office by a public official or by a candidate for admission to the bar.

In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education was not imposing a religion or religious belief or a religious test on said students. It was merely enforcing a non-discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or Jehovah's Witness. The State was merely carrying out the duty imposed upon it by the Constitution which charges it with supervision over and regulation of all educational institutions, to establish and maintain a complete and adequate system of public education, and see to it that all schools aim to develop among other things, civic conscience and teach the duties of citizenship.

The children of Jehovah Witnesses cannot be exempted from participation in the flag ceremony. They have no valid right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and demoralize the rest of the school population which by far constitutes the great majority.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority.

This 1959 decision however was clarified and subsequently modified in the following cases decided by the Supreme Court.

In Victoriano vs. Elizalde Rope Workers' Union the Supreme Court upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any labor group. ". . . It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some 'compelling state interests' intervenes." (Sherbert vs. Berner 374 U.S. Ct. 1790.)

In Ebranilag vs. Division of Superintendent of School , the High Court overruled the 1959 decision in Gerona and explained that:

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA 514, 530-531). "The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare" (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent." Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified. . . . After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, science, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of "patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities. As Mr. Justice Jackson remarked in West Virginia vs. Barneta, 319 U.S. 624 (1943): ". . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. . . . When they [diversity] are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." "Furthermore, let it be noted that coerced unity and loyalty even to the country, . . . — assuming that such unity and loyalty can be attained through coercion — is not a goal that is constitutionally obtainable at the expense of religious liberty. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.).

Concluding Statement

The relationship of conscience with the law is not a simple pedadogy for scholars. For freedom of conscience is the bedrock of other fundamental rights, e.g. speech, expression, and religion. While it may be said to be individual in character, and the State may exert its authority to limit the exercise or manifestation of the freedom of conscience for public interest, still it cannot restrict the conscience itself.

A US Supreme Court Justice (Benjamin Cardozo in Palko v. Connecticut (1937) wrote that:

"Freedom of thought... is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of this truth can be traced in our history, political and legal."

Chief Justice Dickson of the Supreme Court of Canada echoed the same when he wrote:
It should also be noted, however, that an emphasis on individual conscience and individual judgement also lies at the heart of our democratic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government. It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or "firstness" of the First Amendment .

Tuesday, July 08, 2008

Images of Saturday

Its been more than a year I believe that I spent time in a beach. Last saturday, after a week of stress in work I decided to leave everything behind and go with my family to Bataan.

There were no crowds in the beach where we went. No frills, just sand and waves.

Dinner at the beach al fresco was one of the best. It made me lose track of the time and made me think of a lot of options on how best to move forward with work and family.