Voiding RH Law will destroy legal system

One cannot emphasize enough how voiding the Reproductive Health Act will destroy our legal system. So are we as a society willing to uphold our democratic institutions’ integrity regardless of individual views on the RH Law?

The petitions at the Supreme Court were long on ideology and short on legal right, and were blatant attempts to dragoon unelected judges into overturning a law produced by democratic compromise. They produced the spectacle of our high court entertaining vague allusions of a decadent Western culture where 12-year-olds have multiple sex partners. They violated every rule in the book, and granting them will open the door to bigger and bigger losers using law as a last, desperate veto against society.

One of my dearest friends is a devout Catholic doctor who sincerely believes that recommending contraceptives is a sin and would feel intimately violated if required by law to refer a patient to another doctor who might commit this sin. Law may question the sincerity but never the content of one’s religious beliefs, so my friend is legally entitled to feel the same way a Muslim would if legally required to eat pork and challenge a concrete regulation. I would likewise respect a narrow, purely legal case brought by a parent against specific sex education materials that he concretely alleges restrict his role in his children’s upbringing or a consumer making concrete scientific allegations that a drug is abortifacient.

What I cannot respect is how the anti-RH claims were so broad that they really refought the entire RH debate in the high court, this time without the people’s elected representatives. Chief Justice Maria Lourdes Sereno flatly said the only way for the petitioners to advance their claims is to get “people who think like you elected.” The not quite legal bases cited ranged from population statistics to the “foundational ideals and aspirations of the sovereign Filipino.” And the claims were so vague that Senior Associate Justice Antonio Carpio asked why petitioner Ma. Concepcion Noche was arguing at length whether life begins at conception or implantation when the RH Law prohibits drugs that prevent implantation, rendering her objections irrelevant.

The recording of the long, awkward silence that was her response may be downloaded from the high court’s website.

I am most intellectually offended by how the anti-RH petitions violate every rule of jurisdiction, independent of their merits. Because judges are unelected, and they may only rule in an “actual case” where they are guided by adverse parties presenting concrete facts and arguments. The petitions were brought even before the law was implemented, and we are thus asked to resolve them based on the petitioners’ extravagant assumptions. For example, what wisdom might we draw from legal challenges to drugs that have not yet been identified and sex education materials that do not yet exist? As a simpler example, a petitioner improperly invoked the religious rights of health workers given the basic objection that he is not a health worker and should not risk misrepresenting their concerns.

Our society’s loss from these wild, scattershot manifestos masquerading as legal claims is very real. The ongoing challenge to the Manila Electric Co.’s unprecedented rate hike is based on two petitions. The first was signed by former senator Rene Saguisag and argued by former Integrated Bar president Leonardo de Vera, and argued that it violates due process when a rate is imposed on consumers without hearing. The second was argued by Bayan Muna Rep. Neri Colmenares and alleged a grand conspiracy among power firms to collude and raise rates. Sereno reprimanded him at length for not being prepared with any facts, not paying attention when she was asking him questions, and, ultimately, raising overly broad claims. “A surgeon’s scalpel could have sufficed without using a sledgehammer,” she said. The high court enforces its rulings solely with moral authority, which it is sure to lose if it makes broad pronouncements of economic policy more properly supported by a political consensus.

Law is best left in law’s place and politics in politics’, however much the two inevitably overlap. The greatest American decision is 1954’s Brown v. Board of Education, which ordered school desegregation. Although Brown is an intellectual foundation of a society now led by a black president, it was so divisive then that troops had to be deployed to escort enrolling black students. Last year, the US Supreme Court acted with greater restraint on same-sex marriage. It nullified the federal prohibition but allowed states to make their own determinations. This allows for play in the joints of the democratic machine of a society whose views were rapidly changing instead of ending the debate with but a stroke of an unelected judge’s pen.

The repeated protests of some justices at the RH hearings that they are not politicians, religious leaders, or technologists underscores that our courts’ role in democracy is necessarily limited lest they become “a bevy of platonic guardians” ruling in the majority’s stead. If they have resolved to strain the limits of their moral capital, overturn decades of constitutional law, and nullify the RH Law, my only request is that they please do it soon. I assigned the anti-RH petitions in class as samples of how not to frame a constitutional case and would need to help my students reverse their knowledge before final exams.

Oscar Franklin Tan’s (@oscarfbtan, facebook.com/OscarFranklinTan) commentary “Anti-RH case flops at the SC” (10/28/2013) outlined the many legal reasons why the petitions clearly failed.