Commentary

SC: Hands off RH

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After Manny Pacquiao’s loss by decision to Tim Bradley, “he marched over to Bradley’s father and told him, ‘Your son is going to be a great champ’.” After the Reproductive Health Law was signed, critics immediately challenged it before the Supreme Court.

Filipinos would be the first to protest had Mommy Dionisia rushed into the ring to whack Bradley with an oversized Hermes Birkin. But why is it acceptable that justices might troop to the Senate to raise Sen. Tito Sotto’s plagiarizing hand in belated victory?

The anti-RH petitions are from another planet, legally speaking. They invoke ambiguous concepts: “ideals,” “culture” and “right to life” as undefined judicial claims against our elected legislators. Proponents continue to claim an entitlement to impose their definition of “morality” as law. Were we to criminalize the alleged destruction of “ideals,” “culture” and “right to life,” our laws would be so vague that teenage Cebuanas whose bikini photos were uploaded to Facebook would be on death row.

But the gobbledygook is beside the point. The RH bill raised political issues that needed to be resolved in democratic process. And resolved in democratic process they were. Who would have thought that, at the second reading’s dénouement, Filipinos would patiently watch congressmen explain their votes to a man, down to Rep. Em Aglipay’s barbaric yawp: “I’m not against life. I’m against ignorance.” Such political maturity leaves someone who stood with the crowds at Edsa II, after the aborted Estrada trial, in hopeful awe.

During the Corona impeachment, we said that seeing it through without another Edsa would be a triumph in itself. The Senate having redeemed itself, we should value our institutions separate from the outcomes they generate. Had the RH Law been blocked, it would be equally obnoxious had Sen. Pia Cayetano made the less outlandish claim that access to reproductive health measures is a fundamental human right judicially demandable from the Court. Whether one is pro- or anti-Carlos Celdran, we should all be insulted by the idea that 14 years of meticulous democratic process is inferior to the vaguest of claims before our unelected Supreme Court.

Justices know US Justice Felix Frankfurter’s classic phrase: “Courts ought not to enter this political thicket,” because they are inevitably stung. Yale Professor Alexander Bickel famously criticized judicial review as having “a tendency over time to seriously weaken the democratic process” because “the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors.” Thus should the Court not be the last refuge of a loser in a political arena.

There are certainly valid judicial questions: When may a health worker validly refuse to join health measures due to a religious objection? To what extent can law overlap with a parent’s right to raise a child? Does a specific contraceptive induce abortion, violating the Constitution? Legal standards will govern these should a concrete court case arise (and none has, given that the RH Law is not even effective yet). The RH Law’s broader framework, however, raises questions so fundamental that these can only be judged by the majority consent that is the crux of democracy. That these questions have so polarized us implies that the disgruntled would respect nothing less.

It is time to question our haste in running to the Supreme Court every single time.

The Court issued a TRO against the anticybercrime law even before an actual cyberlibel case. The TRO came even as senators expressed willingness to amend the law; sponsor Sen. Ed Angara even gamely said so before Boy Abunda. The TRO discouraged amendments’ consideration given a looming Supreme Court decision. More importantly, it cooled the fervor of citizens’ debates, robbing those who ardently blacked out their Facebook profiles the opportunity to realize they have no idea what they are protesting against—down to the fact that cyberlibel was punishable before the anticybercrime law.

The role we grant the Supreme Court is critical to divorce debates. The Constitution states: “Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” Antis might try to have divorce declared unconstitutional in a technical knockout even before Round 1. Is it more democratic, however, to assert that legislators and citizens themselves must interpret the Constitution’s motherhood statements on marriage? Is it more democratic for women from all walks to speak instead of unelected justices ruling based on musty law books?

The “Coronavela” ended the myth of the Supreme Court’s infallibility, yet we barely grasp our justices’ descent from godhood. It is time for us to reclaim our democracy’s most fundamental questions for ourselves. It is time to assert that Congress is an appropriate ring in which to define abstractions such as “ideals,” “culture” and the “right to life,” and that a fight card with Harvard lawyers from Rep. Sonny Angara to Senate President Juan Ponce Enrile himself compares to one with a Davide, a Puno or a Carpio. It is time to ask political minorities to follow the Pacquiao example of gamely asking for a rematch instead of seeking hollow victories outside the ring.

Besides, our democracy can always use more Em Aglipay quotes and Sen. Miriam Defensor-Santiago’s beautiful legs challenges.

Oscar Franklin Tan (facebook.com/OscarFranklinTan, Twitter @oscarfbtan) teaches Constitutional Law in the University of the East. His 2012 article “Guarding the Guardians” (86 PHIL. L.J. 523) outlines the overlooked sheer breadth of Supreme Court power.

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