Debating Cha-cha beyond ‘pepe-dede-ralismo’

Assistant Communications Secretary Mocha Uson explained that her “pepe-dede-ralismo” jingle was an attempt to spark conversation about federalism and the proposed draft constitution. But how come we’ve spent more time debating the jingle than every proposed change in the actual draft?

Federalism aside, for example, the nuclear bomb is the subtle addition making the Bill of Rights demandable against “nonstate actors.” Meaning corporations, organizations and even individuals.

Such “horizontal” application of rights, in constitutional parlance, was worded in the broadest, boldest possible way.

Recall PolSci 100. In classic theory, a constitution is a restraint on government. This infinitely powerful actor is subject to broad, unique constitutional claims.

We have ordinary law for ordinary people. If someone kills, charge him with murder, not invoke the right to life. If someone steals, charge him with theft, not invoke the right to property.

Why is the seemingly simple change the bomb? Recall the intense Torre de Manila debate, a constitutional case to demolish a privately owned building because it overlooks Rizal Park.

Justice Francis Jardeleza, the bench’s great liberal thinker, strenuously invoked the 1987 Constitution’s single phrase commanding the State to “conserve” cultural heritage. The single word “conserve” is enough textual foundation on which to build an entirely new body of law.

Acting Chief Justice Antonio Carpio is both a great liberal and an equally great wielder of black letter law. He asked how anyone could possibly predict whether this single word supposedly creates a conservation zone of 1, 2 or 10 kilometers around Rizal Park.

It would thus be fundamentally unfair to destroy property using a rule not yet in the books. Such fairness and the right to property are also protected rights.

Only history can judge whose thinking ultimately prevails. Such is the innate beauty of constitutional law.

(How was a constitutional case brought against a private developer under our present Constitution? A city government granted a building permit, if you want to get technical.)

But the Torre case also augurs nightmares for general counsels.

Poignant intellectual drama is captivating for freshman classrooms, but disastrous for business. Commercial law champions predictability and stability.

Imagine if every business more broadly faces the law of moving goalposts that accompanies constitutional cases. Imagine if activists claimed a constitutional right to hold rallies in Megamall or Greenbelt. Or a constitutional right against a Catholic university, such as Ateneo, allowing Masses during school functions and prayers before classes.

Or a constitutional right to free medical treatment from The Medical City and St. Luke’s, or even individual doctors. Or that every data privacy breach creates a constitutional case, given the draft constitution’s explicit data privacy provisions.

Lawyers can readily conjure infinite extreme scenarios, down to discrimination cases by jilted suitors, the ultimate legal hugot line.

To contextualize the consultative committee’s proposal, horizontal application, in various degrees, does exist in many other democracies. But my point is, should we not worry that this bomb caused no debate whatsoever?

Why is no one asking whether our attitudes on law are mature enough to support horizontal application? Remember, ours is a jurisprudence that allows unborn generations to file cases, grants a “right to reasonable returns on investments,” and expanded quo warranto.

We have before us a matter no less weighty than revising our Constitution. The drafters were led by no less august a luminary than my idol, retired chief justice Reynato Puno. Yet we are fixated on a bizarre jingle.

One hopes Uson ultimately sparks serious, nonpartisan reflection over the many lofty ideas in the draft constitution. In the meantime, general counsels may want to dust off their constitutional law textbooks.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.