Pitfalls of ‘obiters’

While  obiter  dicta  give the opportunity to individual justices to elucidate their personal views or even stress submissions which may have been sidetracked or jettisoned, obiters have the tendency to detract from or be mistaken for the  ratio  decidendi.

Obiter  dictum  literally means “by the way.” It is a side comment which has no binding effect and is not determinative of the Supreme Court’s ruling or  ratio  decidendi. The reason for the decision is the  ratio  decidendi  which disposes of the principal issues for adjudication.

In Villanueva Jr. vs Court of Appeals (March 19, 2002), it was held that an  obiter  dictum  “lacks force of adjudication. It is merely an expression of an opinion with no binding force for purposes of  res  judicata  (precedent).” Likewise, in Republic vs Nolasco (April 27, 2005), it was ruled that an “obiter  dictum  is a nonessential, welcome and sublime like a poem of love in a last will or unwanted and asinine as in brickbats in a funeral oration.”

The ponencia declaring the Reproductive Health Law constitutional on the whole is replete with disturbing  obiters  which not only gave solace to the anti-RH forces but also fueled their claims at “victory” even as  obiters  are not the  ratio.

The following obiters  have to be clarified to defuse the confusion which they may have spawned and correct the inaccurate claims they may have ignited:

• “As healthful as the intentions of the RH Law may be, the idea does not escape the Court that what it seeks to address is the problem of rising poverty and unemployment in the country. Let it be said that the cause of these perennial issues is not the large population but the unequal distribution of wealth. Even if population growth is controlled, poverty will remain as long as the country’s wealth remains in the hands of the very few.” (Decision, page 101)

This statement echoes the belabored claim of the anti-RH forces. While there is inordinate unequal distribution of wealth in the country, there is no empirical basis that the inequitable concentration of resources is the principal cause of poverty, more than the excessively huge population. But the extremely large population aggravates

inequality as it hinders social mobility and makes poverty persist across generations.

The RH Law does not advocate that the country’s exploding population is the sole cause of poverty. This would be simplistic and conveniently turns a blind eye on the reality that the distribution of wealth is highly skewed; access to basic social services such as education and health is precariously deficient; and getting a stable job is in short supply.

It simply recognizes the verifiable link between a ballooning population and poverty, and the documented verity that an escalating population is one of the major causes of poverty and even exacerbates it.

• “At any rate, population control may not be beneficial for the country in the long run. The European and Asian countries which embarked on such a program generations ago are now burdened with aging populations. The number of their young workers is dwindling, with adverse effects on their economy.” (Decision, page 101)

The RH Law is not a population control measure and it does not adhere recklessly to the paradigm of some European and Asian countries. In enacting the law, Congress had the hindsight of the problems of an aging population which will be avoided in the law’s implementation. To this end, Sec. 3(f) mandates the state to “conduct studies to analyze demographic trends.”

This  obiter  fails also to recognize the dynamics of population momentum wherein despite implementation of the RH Law, the population of the Philippines will continue to grow, albeit at a tapered rate, because of the current huge base of women of reproductive age.

Population momentum has “virtually assured” the Philippines “of substantial population increases, whatever happens to fertility levels” (Todaro 1994). Herrin and Castelo in their study “Sources of Future Population Growth in the Philippines” (1996) reported that of the estimated increase of 37.1 million in population from 1995 to 2020, 66.3  percent  will  be  due  to  population  momentum, 18.1 percent to high family size preferences, and 15.6 percent to unwanted fertility.

Economics professors at the University of the Philippines have declared that a so-called “demographic winter” will not happen in the country for “at least another 100 years.” Meanwhile, the government has adequate time to avert a demographic winter and guarantee the population growth of productive young citizens.

• “And in this country, the economy is being propped up by the remittances from our Overseas Filipino Workers. This is because we have an ample supply of young, able-bodied workers. What would happen if the country would be weighed down by an ageing population and the fewer younger generation could not be able to support them? This would be the situation when our fertility rate would go down below the replacement level of two children per woman.” (Decision, page 102)

This comment gives inexplicable homage to extreme fecundity. The social costs of manpower export should impel the government not to rely too much on the dollar remittances of OFWs. Instead, the government must provide adequate jobs in the country for a decreasing size of its workforce brought about by the implementation of the RH Law, to keep families intact, rather than perpetuate the situation of absentee parents working abroad and increasing incidence of incestuous abuse as a consequence of motherless and wifeless homes due to the feminization of labor migration.

Edcel C. Lagman authored the reproductive health bill in the 15th Congress as representative of the first district of Albay.