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Kapa and freedom of religion

"The Kapa leadership is capitalizing on the mostly poor members' gullibility, lack of financial literacy and misplaced religious fervor to rake in scandalously large sums of money."

The government’s crackdown on Kapa-Community Ministry International provides a teaching moment on freedom of religion. How this plays out is important not only for its members but also for other religious denominations and organizations that require or encourage donations, tithes, or other forms of giving.

Kapa, operating mainly in Southern Mindanao, has been ordered closed by the government, through the Securities and Exchange Commission and with President Duterte himself describing its donation scheme as a big scam. The assets of Kapa have been frozen and its leaders have been put on immigration watch. The response of its members so far has been one of protest and support for Kapa, with no one as yet willing to file cases of estafa against its leaders.

Joel Apolinario, the founder of KAPA Ministry, who hails from Bislig, Surigao del Sur, comes from humble beginnings. Early on in his career, Pastor Apolinario took on various low-paying jobs, as a fisherman, a construction worker, disc jockey, and technician at an FM station in Bislig. In 2016, he began using the radio as a religious platform, spewing biblical verses to ask for donations from members with the promise that the money they invest will generate 30 percent return for life. Using social media, the scheme spread like wildfire and caused mass hysteria in some parts of Mindanao, with 30-percent returns promised for donations that are described as gifts for their faith—but which government considers as investment scams that are typical of pyramid schemes.

The twist in Kapa is the religious element as Apolinario self-ascribes as a pastor and Kapa as a religious group—a so-called church within a church because you do not have to leave your own religious group now to become a member. This actually raises the question of whether in fact Kapa is a religious organization and in fact is really more of a secular, self-help organization.

In any case, assuming it is a religious organization, can the State interfere and stop the activities of Kapa? Did the President, as Senator Antonio Trillanes claims, commit an impeachable offense by culpably violating the constitutional right of Kapa members to exercise its own religion?

For sure, freedom of religion is a most inalienable and sacred human right that occupies a preferred status in the hierarchy of rights. Thus Article III, Section 5 of the 1987 Constitution provides: “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.”

Chief Justice Reynato Puno, writing as an Associate Justice in the 2003 case of Estrada vs Escritor, explained why we have these two clauses—the non-establishment and free exercise principles—in our Constitution that in turn we imported from the United States Bill of Rights (First amendment):

“Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by proscribing all differences in religious opinions.

In sum, this history shows two salient features: First, with minor exceptions, the history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religion’s invaluable service. This was the context in which the unique experiment of the principle of religious freedom and separation of church and state saw its birth in American constitutional democracy and in human history.”

However, like most rights, freedom of religion is not absolute. The state can intervene in the exercise of this right when the right of others are affected or when society itself is threatened. Thus the state cannot condone human sacrifice, slavery, mass suicide, disregard of rights of women or children or any other population even when these are justified by religious belief and even when done voluntarily.

Freedom of religion is described by Puno as “a most difficult area of constitutional law where man stands accountable to an authority higher than the state.” According to Puno, in that case where a woman employee of the judiciary was charged with immorality for living with a man not her husband under the Pledge of Faithfulness arrangement permitted by the Jehovah’s Witness, “To be held on balance are the state’s interest and the respondent’s religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal.”

In determining whether the State should involve itself in religious matters, Puno identified several tests. One of these tests would be benevolent neutrality where the state bends backward to accommodate actions sanctioned by religion: “With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances . . . Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion.” This was the test applied in the Estrada case where the Court decided not to penalize the woman employee for immorality.

Another approach is the “compelling state interest” test, described as: “A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - “the most inalienable and sacred of all human rights”, in the words of Jefferson . . . only the gravest abuses, endangering paramount interests can limit this fundamental right.”

According to Puno, it is not enough to merely balance a colorable (ordinary) state interest with this fundamental right: “only a compelling interest of the state can prevail over the fundamental right to religious liberty.” The state carries “a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed.” Thus reasonableness shall be the guide in determining which shall prevail between the state’s interest and religious liberty. In this way, “The ‘compelling state interest; serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state.”

Let me apply those principles now to Kapa, which while maintaining a religious façade, is engaging in an investment scheme with all the hallmarks of a pyramiding scam; guaranteeing a huge profit in an impossibly short period of time, promising little or no financial risk; among others. The Kapa leadership is capitalizing on the mostly poor members’ gullibility, lack of financial literacy and misplaced religious fervor to rake in scandalously large sums of money. As advised by the Securities and Exchange Commission, the investment scheme is simply unsustainable and if payouts for the 5 million or so members are made, KAPA can last only as early as 3 months before it collapses.

Clearly, there is a compelling state interest to close Kapa down and to go after its leaders. It is urgent to do so before more people are harmed. That there are political dimensions here that might be worth exposing (the rivalry with Apollo Quiboloy and the latter’s influence on Duterte) is not an excuse for inaction.

One may ask fairly; what makes the donation by Kapa members different from tithes and donations required by or encourages in other religions? What is the difference between Apolinario’s promise of a return for the donations given to Quiboloy’s or Mike Velarde’s or Bo Sanchez’s assurances of prosperity in their own exhortations? Should government crack down on all prosperity gospel proponents? This will be the topic of my next column.

Facebook Page: Professor Tony La Viña Twitter: tonylavs

Topics: Kapa-Community Ministry , Religon , Joel Apolinario , Reynato Puno , Apollo Quiboloy
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