Enforcing rights to prosperity

Since my student days to my professional life and throughout my years in the Supreme Court up to the present, I have always championed “liberty and prosperity under the rule of law.” Freedom and food, justice and jobs, liberty and prosperity must always be together: One is useless without the other.

Our fundamental rights to liberty often called political and civil rights, are self-executory. Unfortunately, however, those of prosperity (commonly referred to as economic and social rights) are not.

These latter rights are worded in positive language; to be enforceable, they normally need legislative action. For example, Art. II, Sec. 9 of the Constitution states, “The State shall promote a just and dynamic social order that will ensure the prosperity… of the nation and free the people from poverty…”

Using this bare provision alone, a suit to compel the secretary of agriculture (or any other official) to provide food or shelter or jobs “to free the people from poverty” will not prosper. An enabling legislation is needed to authorize the court to allow such action.

In contrast, the rights to liberty are written in negative language such that even without enabling legislation, courts can enjoin the state and state actors from violating them.

For example, the Bill of Rights provides, “No person shall be deprived of life, liberty or property without due process of law…” Courts can use this provision directly, without need of any law, to bar government officials from seizing, possessing or destroying, without due process, a person’s car or house.

And yet, our economic rights are scattered in elegant language all over the 1987 Constitution — in Art. II (Declaration of Principles and State Policies), Art. III (Bill of Rights), Art. XIII (Social Justice and Human Rights), Art. XIV (Education, Science and Technology, Arts, Culture and Sports) and Art. XV (The Family).

Moreover, they are also found in the United Nations Charter, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and many other treaties entered into by our government.

This dichotomy in treatment could partly be explained by the history of the United States and the Philippines. In both countries, “Give me liberty or give me death” was the singular battle cry when their constitutions were crafted.

Fast forward to the present. While we still cherish political and civil rights, our people are more focused on their economic needs and wants. The recent opinion polls show that our most pressing concerns relate to the alleviation of poverty, creation of jobs and reduction of prices.

Amid this dichotomy, Gemy Lito L. Festin, law dean of the Polytechnic University of the Philippines and one of the holders of the “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity,” in a seminal lecture, proposed a doable solution to elevate economic rights to the level of political and civil rights.

He suggested that the Supreme Court, using its constitutional power “to promulgate rules concerning the protection and enforcement of constitutional rights,” can import into our country the “principle of tutelage action” from Columbia to enforce economic rights in the same manner that the Court transplanted here the Mexican “writ of amparo” to solve “enforced disappearances and extrajudicial killings.”

He explained that the Court can justify the use of its rule-making power because under “the interdependence principle, economic rights [are] encompassed within the larger sphere of the people’s right to life.”

Citing Government of Hong Kong vs Olalia (April 19, 2007), he stressed, “The Universal Declaration of Human Rights [constitutes] generally accepted principles of international law [that] form part of the law of the land.” (His full lecture may be accessed at www.libpros.com, then click “Professorial Chairs.”)

Upon my suggestion, he agreed to bring his thesis to the Philippine Association of Law Schools so it can be vetted and later on elevated to the Supreme Court for the possible promulgation of the “writ of prosperity.”

To be continued next Sunday.

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