THERE is no point arguing the merits of the Comelec’s decision to deny Ang Ladlad recognition as a party-list group. That is because there are none. The paper produced and signed by Commissioners Nicodemus Ferrer, Lucenito Tagle and Elias Yusoph is a religious tract masquerading as a legal document. However, it has legal consequences and that requires examination – and opposition.
The Comelec commissioners’ faith-based opinion now enjoys the presumption of legality and it continues what the Comelec began in 2007, that is, to deny Ang Ladlad the opportunity to seek a mandate from the electorate. While no one in their right mind considers the Comelec commissioners’ decision to be worth the paper it’s printed on, the Comelec decision requires Ang Ladlad to go through the process of appeals and possibly fight things out all the way to the Supreme Court – by which time it will be the eve of the 2013 elections. By which time a case would have been built for ordering the arrest of members and supporters of Ang Ladlad, of Danton Remoto and even the publishers of his works.
This is the ultimate, ambitious, objective: to crush Lesbian, Gay, Bisexual, and Transgendered (LGBT) associations before they manage to establish a troubling precedent in electoral politics.
The commissioners are bound by law to reject a petition to be recognized as a party list on several specific grounds. The grounds for rejection it chose are two: that Ang Ladlad “violates or fails to comply with laws, rules or regulations relating to elections” and that it “declares untruthful statements in its petition.”
Per the Comelec, Ang Ladlad lied. How did it lie? By “not being truthful when it said that it ‘or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections.'” How did it violate the law? The group, said the commissioners, by defining sexual identity as referring “to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender,” proposed a sexual spectrum not only not to the liking of the commissioners but, according to them, advocated a spectrum not tolerated by Christianity or Islam and therefore, impermissibly deviant from the normal understanding of public morals.
The Comelec commissioners themselves referred to Title Six (Crimes against Public Morals) of the Penal Code, specifically Chapter II covering “Offenses against Decency and Good Customs,” particularly the following provisions:
Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows.- The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: (1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals; (2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which i. glorify criminals or condone crimes; ii. serve no other purpose but to satisfy the market for violence, lust or pornography; iii. offend any race or religion; iv. tend to abet traffic in and use of prohibited drugs; and v. are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts; (3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.
So what the Comelec is attempting to do is to lay the basis for the proscription, or banning, of groups like Ang Ladlad by making them liable to prosecution under the Revised Penal Code as criminal deviants. This would be under the following provision:
Art. 147. Illegal associations. – The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 1,000 pesos shall be imposed upon the founders, directors, and presidents of associations totally or partially organized for the purpose of committing any of the crimes punishable under this Code or for some purpose contrary to public morals. Mere members of said associations shall suffer the penalty of arresto mayor.
Nonetheless, some will argue, the law may be harsh, but it is the law: but that is to grant a particular interpretation that may have been valid in 1930 but does not reflect what society considers permissible or what medical science itself no longer considers an illness.
I have repeatedly questioned the relevance of the Revised Penal Code because it has many provisions that deserve serious re-examination in light of the many changes in society that have taken place since the law was passed in 1930 – and amended over the decades since.
The provisions on vagrancy, for example, have often been used as a pretext for persecuting sexual minorities. In other countries, the manner in which similar laws have been used for extortion by the police has led to the reexamination and, in many cases, the scrapping of such easy-to-abuse regulations.
Only an affected minority can be expected to take the lead in daring to question such laws. And here lies the necessity of ensuring these minorities never acquire the status of being a recognized, organized and represented party list: they might actually succeed in modernizing the law to reflect the true, public consensus on permissible public and private behavior – exposing Ferrer and friends as the true deviants.