[Just Saying] Reciting a hymn and pledge: Illegal, punitive, unconstitutional

The Office of the President released Memorandum Circular No. 52 directing the recital of the Bagong Pilipinas hymn and pledge during the flag ceremony in all government agencies, including state universities and colleges. The memorandum anchors its legal basis on Republic Act (RA) No. 8491, known as the “Flag and Heraldic Code of the Philippines,” which “authorizes the Office of the President to issue rules and guidelines for the proper conduct of flag ceremonies.”

Reliance on RA No. 8491 is legally flawed. The provisions of the memorandum are likewise constitutionally infirm. The “hymn and pledge” is punitive and polarizing. These can easily be explained.

FIRST. The memorandum is in violation or goes beyond the mandate of RA No. 8491. The law clearly limits the way a flag ceremony shall be conducted. Each and every section of RA No. 8491 only refers to the flag, the ceremony in relation to the flag, the national anthem, and, in Section 25, to the recital of the Pledge of Allegiance to the Philippine flag, which already has a statutory formula.

Nowhere in the said law is it provided, expressly or impliedly, that the Office of the President has the authority to officially create and add a new “hymn and pledge” which, though sounding lofty, has nothing to do with the flag, and direct that it be recited. This additional recital does not fall within “the proper conduct of flag ceremonies” contemplated by the law. The requirement is ultra vires and illegal.

SECOND. Since the Memorandum draws its existence from RA No. 8491, the penalties under the said law shall also be imposed on persons who do not comply with the memorandum. RA No. 8491 states in Section 48 that “refusal to observe the provisions of this Act and any violation of the corresponding rules and regulations issued by the Office of the President, shall after proper notice and hearing, be penalized by public censure which shall be published at least once in a newspaper of general circulation.” Additionally, Section 50 provides imprisonment, fine or both.  

There is nothing in RA No. 3491 punishing the refusal to recite a newly-created “hymn and pledge.” In effect, the directive provided in the memo added a new punishable act or omission. No rule or mere memorandum can make additions to the law. That is illegal.

THIRD. It transgresses the fundamental right to free speech and expression. The preamble of the memorandum states that the recital of the “hymn and pledge” is designed to further “instill” the administration’s “Bagong Pilipinas brand of governance and leadership.” 

If a state college professor does not support such “brand of governance and leadership” because of what he/she think is the leadership’s failure to curb inflation, ineptness in providing employment to the 2.15 million unemployed Filipinos, absence of economic sense evidenced by the record high P14.93 trillion Philippine national debt, and decides to manifest his protest by not reciting the “hymn and pledge,” will the professor be publicly censured?

If the answer is yes, then, a chilling effect of fear and silence would have been successfully instilled by the threat of criminal penalty. The dangers of prior restraint, which is repugnant to the Constitution, is clearly present. It likewise hinders the citizen’s right to petition the government for redress of grievance.

FOURTH. The “hymn and pledge” is polarizing. A flag ceremony must be neutral, not having any political undertones even if it were so slight, the reason being that patriotism, loyalty, and fidelity to the flag must unite all for the love of country. Look at the words of the National Anthem, there is no tinge of partisanship. Also the Pledge of Allegiance to the flag has been carefully drafted to avoid even any accidental reference to anyone or any past regime despite being formulated post-1986 revolution.  

But the words and message of the “hymn and pledge” – like “panahon na ng pagbabago” and “gawin ang pababago patungo sa asenso” – immediately suggest a comparison between the present and the previous state of affairs. At first glance, they may look ostensibly harmless. But we live in a political country where fanatic political partisanship is a reality. It is inevitable that people belonging to different persuasions – rightly or wrongly – will read something condescending in these words fomenting further alienation, hatred, and polarity.

Let love and honor of country be measured through genuine service, performance of duty with honesty and integrity. It cannot be achieved through platitudes. Neither can it be achieved or fostered through the recitation of an invented “hymn and pledge.” – Rappler.com

Mel Sta. Maria is former dean of the Far Eastern University Institute of Law. He teaches law at FEU, the Ateneo School of Law, the University of Sto. Tomas, Pamantasan ng Lungsod ng Maynila, University of Makati, and Manuel L. Quezon University. He also hosts shows on both radio and YouTube, and has authored several books on law, politics, and current events.