The Supreme Court as religious enforcer

The Supreme Court has always been the tempting last refuge for losers in a political arena. It is troubling that the consistent refugee of late is the Philippine Catholic Church.

We are alarmed by how the high court now throws out all the rules when bishops’ proxies come knocking. Most prominently, it issued a last-minute temporary restraining order on the Reproductive Health Law’s implementation. The critical problem is that the Constitution limits the high court’s jurisdiction only to “actual cases.” It is required to accept cases only when the facts and legal propositions are crystal-clear, in a concrete dispute argued by two sides with competing interests. Our justices have no electoral mandate, unlike legislators, so we limit their authority to make—or strike down—rules that bind the entire country. When the high court acts outside “actual cases,” it dramatically expands what should be limited judicial power. What then is the “actual case” that arises from a law that has not yet been implemented?

(The Supreme Court issued a similar TRO on the Cybercrime Law. There is a classic exception in “actual case” doctrine for a law that may unduly restrict free speech. There is no free speech issue against the RH Law.)

In addition, the high court issued a TRO on the Commission on Elections, after one of its officers asked the bishop of Bacolod to take down the “Team Patay/Team Buhay” tarps that violated poster-size limits. This was not religious prosecution but a simple poster-size issue. The critical problem is that the Constitution limits the high court’s review over the Comelec to the latter’s actual en banc decisions. A candidate warned by a lowly Comelec official of a violation cannot run to the high court without going through the normal Comelec process, yet the high court allowed precisely this for the bishop, complete with high-profile oral arguments.

Every Filipino, bishops included, has every right to seek a court process,  yet we are alarmed by how the Church seems to always play by its own rules. Given a clear majority supporting the RH Law, it is even more important that those with concrete legal objections be heard. For example, one of my staunchest anti-RH friends is a doctor who reads encyclicals as light reading. He fears that “conscientious objectors” under the law may find it impractical to object. If, for example, a doctor is required to display a sign that he is a “conscientious objector,” it might stigmatize him to the point of curtailing his freedom of religion. These are perfectly valid concerns, but there are more orderly processes than an 11th-hour TRO on the entire law.

The anti-RH TRO is particularly questionable because the petitions’ claims are barely legal in nature. I gave the first petition as a midterm question because it gave rise to just about every textbook ground to dismiss a constitutional case. As Joaquin Bernas, SJ, wrote: “As to the constitutional arguments being used against the law, which are not impressive. The arguments I have seen can be reduced to one sentence: ’The law is unconstitutional because it does not hew closely to the teaching of the Catholic Church on contraception.’”

First, the petitions claim the RH Law violates Filipino “ideals and aspirations,” “morality,” or even natural law. These are vague concepts that cannot be judicially enforced, especially not if one is merely inserting one’s own definitions. Imagine if one can be jailed for destroying Filipino “ideals and aspirations”—how would one defend oneself?

Second, the petitions claim the RH Law is antilife and cite constitutional provisions against abortion or emphasizing the family’s importance. Our post-Edsa Constitution contains many sentences that are aspirational or that specifically require implementing legislation, such as those on freedom of information and political dynasties. It is thus problematic to stake an abstract anti-RH claim on such provisions. And if a petitioner is accusing the Department of Health of distributing abortion-inducing drugs in violation of the Constitution, one wonders how this accusation can be made even before the DOH decided how it would implement the RH Law. The same reasoning applies when anti-RH petitioners claim sex education curtails the freedom of parents to choose how to raise their children; the government had not drawn up plans for sex education when petitions were filed.

Third, the petitions cite population statistics and claim the RH Law’s implied goal is to control our population. Our courts, however, cannot process statistics and one should argue economic policy in Congress. There are no movies about lawyers dramatically whipping out reams of statistical data in court for a reason.

The most obnoxious argument holds that the RH Law violates religious freedom because its very existence is supposedly so offensive to Catholics that it is a violation of their religious freedom. I fail to understand how the free individual exercise of one’s religion violates the free exercise of another. Since the right is personal, anyone could similarly profess that one’s relationship with God must be strictly personal and should not be facilitated by organized religion. Under this belief, one could claim that the Catholic Church is an abomination and that the government must abolish it to protect that true believer’s freedom of religion.

The legendary retired justice and constitutional law professor Vicente V. Mendoza pounds into his students that justices should not enter the “political thicket” as they will inevitably be stung. The Supreme Court would be prudent to reconsider this freshman lesson.

Oscar Franklin Tan (www.facebook.com/OscarFranklinTan, Twitter @oscarfbtan) teaches constitutional law at the University of the East.