The Bill of Rights has been traditionally a body of civil and political rights (e.g., freedom of speech, freedom of religion, right to a fair trial) which are enforceable through the courts.
Socioeconomic rights (rights to quality education, decent housing, adequate standard of living, health, social security, a healthy environment, etc.), which are in the Declaration of Principles and State Policies of the Constitution, are restated and included in what is proposed by the President’s consultative committee as an “expanded Bill of Rights,” and it is declared that:
The rights under this article [Bill of Rights] are demandable against the State and non-State actors and their enforcement shall be consistent with international standards. (Article III, Section 1)
Violations of civil and political rights raise justiciable questions and are remediable in the courts. But can any person bring suit to demand “adequate food,” “adequate and decent housing,” “universal and comprehensive healthcare,” a “healthful environment and balanced ecology,” “clean air, clean soil and clean surroundings,” to name only some of the socioeconomic rights in the Draft Bill of Rights?
By putting socioeconomic rights in the Bill of Rights and declaring all rights to be demandable against the State and non-State actors, the Draft Constitution implies that they are all enforceable in courts. However, recent studies show that, while there is “near consensus” among the countries in the world that socioeconomic rights should be included in constitutions, the United States being the exception, no similar consensus exists as to how they should be enforced.
Some states, like South Africa and India, provide for enforcement of socioeconomic rights in a “weak-form or dialogical manner,” by simply pointing out violations of rights, leaving the remedies to the political branches as they balance the need to enforce these rights on the one hand, and democratic legitimacy and capacity on the other. Other states, typified by Colombia, advocate a “stronger form” of judicial review, employing aggressive remedies, but the results have been to benefit middle or upper classes rather than lower-income groups for whom the socioeconomic rights are intended. (David Landau, “The Reality of Social Rights Enforcement,” 53 Harv. Int’l L.J., 2012)
In the Philippines, the Supreme Court in Oposa vs Factoran (1993) upheld the right of the petitioners to sue the government for the cancellation of licenses of loggers whom they accused of being responsible for the deforestation of the country and the violation of their right to “a balanced and healthful ecology in accord with the rhythm and harmony of nature.” But the Court’s ruling stopped at reversing the lower court’s dismissal of the case, and there is no record of what the decision on the merits was.
Indeed, there is no “international standard” for enforcing socioeconomic rights. The International Covenant on Economic, Social and Cultural Rights, which has been the impetus for the inclusion of socioeconomic rights in national constitutions, simply enjoins state parties “to take steps… to the maximum of [their] resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant, by all appropriate means, including particularly the adoption of legislative measures.”
The Draft Bill of Rights itself, in Section 26, also provides that “The Federal Republic shall adopt measures to guarantee the progressive realization of these rights,” thereby placing the primary responsibility for implementing socioeconomic rights on the political departments of the government.
It is thus a mistake to put socioeconomic rights in the Bill of Rights together with civil and political rights and, without distinction, declare that all the rights “shall be demandable… and their enforcement shall be consistent with international standards.” Social and economic rights should be left where they are in the present Constitution: in Article II (Declaration of Principles and State Policies), in Article XIII (Social Justice and Human Rights), Article XIV (Education, Science and Technology, Arts, Culture and Sports Education), and Article XV (Family), or in the corresponding provisions of the Draft Constitution, as the case may be.
Socioeconomic rights should be viewed as mandates to Congress and as standards for judges in passing upon the validity of legislation enacted to implement them. Conflating them with civil and political rights, which are self-executing, will make the latter’s enforcement through the courts uncertain and contingent on legislative actions.
In amending or revising the Constitution, especially those parts concerning ancient institutions like the judiciary, care must be taken that exuberance does not ride roughshod over history and tradition. In Goethe’s vivid phrase, care must be taken that the trees do not scrape the skies.
Vicente V. Mendoza is a retired associate justice of the Supreme Court and professor of constitutional law at the UP College of Law.