RH on trial: the real issues

The upcoming hearing on the Reproductive Health Act of 2012 has become a doctrinal chop suey. Hopefully, the country focuses on the two real issues: the limits of Supreme Court jurisdiction and an individual’s right to choose.

The doctrinal chop suey is the unwitting result of lawyers’ cavalier treatment of Supreme Court jurisdiction. The difference between a congressman and an unelected justice is that the latter may only act when he has a concrete case before him, and only to the extent demanded by that case’s resolution. When a judge acts outside a concrete case, he usurps legislative authority.

The key preliminary issue in the RH hearings is precisely whether there is a concrete case given that the law has not even been implemented. Where exactly are the alleged abortion-inducing items assailed even before the government drew up its list of contraceptives? How exactly were the religious beliefs of health workers violated by procedures assailed before they existed? A judge precisely cannot bind our society to rulings anchored on speculation and guesswork.

Heedless of the traditional “actual case” requirement, petitioners rushed to beg the high court to strike down the unimplemented law in the broadest and most general possible attacks. The lack of a concrete case to frame the issues and the high court’s eagerness to issue a restraining order invited the doctrinal chop suey. Amateur constitutionalists scoured the Constitution for every conceivable objection, down to word searches for the word “family.” Some petitioners discuss RH as a free-speech case, which is certainly strained. Finally, it was the most high-falutin’ argument that was repeatedly highlighted by the media, that the RH Act destroys the “ideals and aspirations” of the Filipino people, whatever that means.

The ultimate problem is not the doctrinal chop suey. In allowing the case to be framed so broadly and attacked from every conceivable angle all in the same proceeding, the high court has set up the possibility of a broad ruling. The recent US cases involving same-sex marriage demonstrate that a broad ruling is exactly what a supreme court should avoid in such a contentious issue. There, the US Supreme Court struck down the federal Defense of Marriage Act but did not impose a national right to same-sex marriage. This leaves the question open at the state level and allows the United States to resolve the difficult issue through community consensus and continued debate, not judicial imposition. Should the Philippine Supreme Court rule broadly on the RH Act and on all the many issues raised, regardless of which side it upholds, a substantial segment of the citizenry will feel cheated out of a democratic outcome.

Going to the actual RH Act, the underlying issue is the right to choose (technically the core of what is called the right to privacy or right to make fundamental life decisions). So many less relevant discussions have confused the real issues. There is, for example, arguably no religious-freedom issue where a petitioner is actually claiming that the exercise of a right by other people violates that petitioner’s religious freedom. Similarly, because rights are individual, a judge should hesitate to restrict a right based on even the Constitution’s description—or a petitioner’s interpretation of a description—of what the family or another social institution is claimed to be. I would even consider arguably valid international law arguments raised by some petitioners to support the RH Act unfortunately confusing and dilutive. In short, the country should be objective over what is really a policy disagreement that should be in Congress and what is a genuine assertion of a human right that should be in the Supreme Court.

The right to choose is as fundamental as the freedoms of speech and religion. It has arguably been less explicit because large chunks deal with sexual relationships, including marriage and childbirth. The simple concept is that the Bill of Rights is distilled into a right to choose, a right to make fundamental decisions about one’s life without government interference. Corollary to this is whether the government should facilitate its citizens’ informed choices regarding parenting and childbearing. This underlying issue, I believe, really determines most of what is going to be debated over the RH Act.

The RH Act hearings are going to be fun to watch, and I recommend focusing on two parties. First, former health secretaries Esperanza Cabral, Jaime Galvez-Tan and Alberto Romualdez Jr. raise precisely the two cited issues. Their lawyers, Harry Roque and Elizabeth Pangalangan, are the leading University of the Philippines professors on international and family law, respectively.

Second, if a high-profile high-court hearing is a room of 800-pound gorillas, Solicitor General Francis Jardeleza would clearly be Godzilla in that room. An undisputed ultraheavyweight and former international lawyer, a partner in one of the largest law firms, then general counsel of one of the largest conglomerates, Jardeleza deserves praise for taking the sometimes shotgun and slapdash petitions against the RH Act and synthesizing a single, comprehensive, impeccable reply. This is a repeat of the Office of the Solicitor General’s similar stellar performance during the Cybercrime Act hearings, and his team deserves praise for raising the bar of Philippine constitutional litigation.

Oscar Franklin Tan (facebook.com/OscarFranklinTan, Twitter @oscarfbtan) teaches constitutional law at the University of the East. He discussed these issues in his comprehensive work, “Articulating the Complete Philippine Right to Privacy,” 82(4) Phil. L.J. 78 (2008).