RH decision’s booby traps and reinvented doctrine

The decision of the Supreme Court upholding the Reproductive Health Law, except for eight provisions barely discussed in the petitions or oral arguments, is a Pyrrhic victory. The anti-RH camp built an outrageously incompetent case that should never have been heard, yet somehow pushed a decision laden with legal booby traps sure to explode in future anti-RH cases. Some traps are built from legal doctrine that dubiously never existed before.

The decision is a heavily edited account. The anti-RH petitions made vague, logic-defying claims such as how the RH Law violated “the foundational ideals and aspirations of the sovereign Filipino people.” The decision skips these nonlegal claims and their heavy criticism in the oral arguments. Instead, the claims are recast into seemingly more credible, alleged human rights violations. Even Solicitor General Francis Jardeleza’s powerful performance is edited out, replaced by a supposed fatal blunder by Senior Solicitor Florin Hilbay.

The first page of the decision even declares the RH Law a population control measure. Women empowerment was conspicuously absent in the decision despite the case’s iconic scene of Sen. Pia Cayetano arguing before old male justices as a mother whose son was born with a hole in his heart and died after nine months.

Please bear with me and risk nosebleed. The 1987 Constitution is extremely long, and much of the text is made up of countless abstract, aspirational statements down to prioritizing sports to “promote total human liberation and development.” Some statements are even contradictory, such as those on protectionism and globalization. These are understood to be “non-self-executory provisions” invoked through rights from more specific legislation. They are not directly invoked in the way traditional human rights, such as free speech and free religious exercise, are.

The high court faces heavy criticism when it makes a stray constitutional phrase the “self-executory” basis for a court order. The 1997 Manila Prince Hotel case invoked the Filipino First Policy to allow a Filipino to match a foreigner’s bid for the “Grand Old Dame,” raising howls of economic interference. The 1993 Oposa v. Factoran case declared the “right to a balanced and healthful ecology” as self-executory and allowed unborn children to sue for it. The 1997 Tañada v. Angara case declined to block the country’s accession to the World Trade Organization due to the “self-reliant and independent national economy” described in the Constitution. Tañada’s more restrained approach characterized the next decade.

Jardeleza thus raised the textbook defense that the anti-RH petitions improperly invoked non-self-executory provisions. With sleight of hand and no legal citations, the decision said these are actually self-executory. These weighty declarations were not necessary to decide the RH case and seem to have been made to activate these provisions for future anti-RH cases.

Take the right to health. The decision noted that no contraceptives have been submitted to the Food and Drug Administration for approval. It declared the right to health self-executory and implied that FDA findings should be closely reviewed by courts as contraceptives allegedly cause cancer and heart attack. The abstract right to health has never been cited with such force, in part because it cannot be taken literally as no government can cure all health problems.

The decision completely rewrote “decisional privacy” or the right to make fundamental life decisions into rights to family and parental authority. It held that the RH Law cannot allow a married person or minor to undergo a RH procedure without spousal or parental consent. But such privacy is individual; there is no right that can only be exercised by a couple. The formerly non-self-executory value on the family cannot trump a woman’s fundamental decisional privacy if her spouse disagrees, and the same objection can be applied to minors. Note that the decision foresees these reinvented rights’ use against future sex education programs.

The decision likewise declared the “right to life” of the unborn as a self-executory provision. This coupled with the argument that life begins at fertilization may narrow the range of allowable contraceptives.

The dissents do not confront the revisionism head on. Justice Marvic Leonen’s 90-page dissent principally argues that the requisites for valid court jurisdiction were not met, but the majority glossed over these as mere technicalities. Note that the decision discarded the rule that a law not yet implemented can be challenged only if it violates free speech, a rule reiterated in the cybercrime decision just last February.

The original legal counterpunches are hidden in Justice Bienvenido Reyes’ unassuming dissent:

Allowing religious objections to sex education programs may tailor programs to one religion’s beliefs, unconstitutionally supporting that religion. Religious objections of public officials must be balanced against public interest and should not disrupt RH programs; judges cannot refuse to impose the death penalty due to religion. Requiring spousal consent for an RH procedure only makes the other spouse the sole decision-maker. And Reyes emphasized that the right to privacy is individual. He should assert himself with more bravado in future cases.

Given how the decision clumsily rewrote several doctrines, the President would do well to appoint a progressive constitutional law heavyweight to replace retiring Justice Roberto Abad to protect his legislative legacy.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.