Compilation on the Imbong case oral arguments (updated 28/8/13)

After two lawyers and former Senator Tatad have presented their case against RA 10354 (the Responsible Parenthood/Reproductive Health Law) in the Supreme Court, followed by Solicitor General Francis Jardeleza and Assistant Solicitor General Florin Hilbay arguing in defense of the law, numerous articles have come out offering views on the developments in the case so far. While I strongly believe that the RH Law is unconstitutional (exclusively on the grounds laid out in Pro-Life Phils.' petition, see below), I sought to make an objective a compilation as possible (particularly for the benefit of law students). Most of the articles, frankly, are nonsense and just a waste of time. This compilation seeks to limit itself to those which in my view are reasonably open-minded, have a modicum of intelligence, or at least informative. 

Marites Vitug has five excellent articles. Those here and here analyzes the first and second hearings and detailed the subtle shift in the SC Justices' positions. Equally interesting is what Ms. Vitug points out in one of her Facebook updates, "'Every statute is presumed valid ... Every presumption should be indulged in favor of the constitutionality ...' wrote SC Justice Jose Mendoza in a 2012 decision. He said that 'judicial legislation' is 'unpardonable.'" Vitug's take on the 6 August 2013 oral arguments is quite good (click here), with Solicitor General Jardeleza making the quite correct point that: "... the question is not when life begins but whether or not congress, in passing the rh law, acted in grave abuse of discretion."

Ms. Vitug's account of the 13 August 2013 hearing is here. And I agree with her assessment that: "These public sessions seem to be no longer of much value to the Court. At this point, they are more theatre than anything else, showing the quality of discourse in Padre Faura, among the men and women in robes whom we thought were demigods." Indeed, the merit of this case would have been apparent to the Court by the second hearing, so one could be forgiven for seeing the subsequent hearings as pointless. Her assessment on the possible outcomes for the case after the oral arguments closed on 27 August 2013 can be found here.

In any event, Assistant Solicitor General Florin Hilbay closed off the government position on 27 August 2013, arguing that the RH Law does not violate free speech and religious rights (see here). Hilbay's answers were quite instructive for serious students of constitutional law: analytical, precise, highly contexted, subtle. While, of course, I do not agree with his arguments, Hilbay nevertheless displayed how somebody who actually knows constitutional law is supposed to answer. What I found amusing is that, perhaps exactly for that reason, it apparently went over the journalists' heads and just about most everyone who attended the hearing that only a passing report was made of the matter in the media.

Having said that, the interrogation done by the Justices were really less than impressive and will in no way contribute to building up the respect much needed for the judiciary and the rule of law. Quite frankly, the line (and manner) of questioning by Justice Roberto Abad on the second, third, fourth hearings were truly embarrassing. At one point, during the 6 August 2013 oral arguments, he may have even lost it a little, comparing the RH Law to the "Nazi holocaust" (click here).

The only saving grace for these hearings were the learned, logical, and instructive questions thrown by CJ Sereno and Justices Carpio and Leonen. A good discussion on the line of questioning undertaken by Chief Justice Sereno and Justice Leonen in the first hearing is found here, including the fact that the Supreme Court is not the forum to settle medical issues (click here). Justice Carpio's 'rebuke' of the anti-RH lawyers on jurisdictional grounds reported here.

On the CJ's deft and reasoned questioning in the second hearing, click here. CJ Sereno even took the time to lecture a pro-life lawyer on a basic feature of our constitutional law: "The solution is to get more people who think like you elected in Congress so right priorities will be set as you see fit. It is not for us to cure problems you see in Congress."

For a somewhat partisan pro-life view on the matter by Chet Espino, click here and here. Dr. Santiago Del Rosario's response, in turn, is here. Then there's Patricia Evangelista's quite polemical but superbly written piece, implicitly including a warning on the dangers of using international law terms like "genocide". She followed that up with somewhat quite sharper language here. Rina Jimenez-David follows in a similar vein here. Journalist and former Senator Francisco Tatad's constitutional analysis can be found here and here. For a perspective that doesn't even attempt to claim legal expertise, Fr. Ces Magsino's quite thoughtful and commendably highly intelligent pieces can be found here, here, and here.

Pro-lifers made an open letter to RH supporters, which resulted in an open letter in turn by RH supporters to pro-lifers.

What is strange about this is that most of the articles and opinions presently circulating in media or the public regarding this Supreme Court case were written by non-lawyers. It's strange considering that the case involves only - and is actually limited to only - technical legal matters (not economic, medical, scientific, social, or religious issues) that will form the exclusive basis for deciding whether the law is unconstitutional or not.

So, unfortunately for laymen, inasmuch as doctors, scientists, sociologists, or economists want their say in the spotlight as well, this is a Supreme Court case and the only thing that matters are the legal arguments. And clearly four years of law school training still means something. As well as passing the Bar exams. 

Lawyer Jose C. Sison has some articles on the case (see here, here, and here). But reading it one doesn't see much legal analysis, rather justifications based on Sison's strong Catholic beliefs.

So for the few actual legal analysis, there is  Oscar Tan (see here), with a discussion on the possibility that the case could be dismissed by the Supreme Court either due to lack of standing on the part of the petitioners, prematurity, or lack of justiciability. Tan's discussion on the remaining issue of this case, religious freedom, is here. His account of SolGen Jardeleza's near flawless performance in the 6 August 2013 oral arguments can be found here. Of the 20 August 2013 oral arguments and Justice Abad's somewhat confused questioning, see here. His quite devastating summing up of the case upon the close of the oral arguments is here. If viewed solely on what transpired in and what was only covered at the oral arguments, there is little one can dispute of Atty. Tan's account. 

Fr. Joaquin Bernas has his say here and here and here (the latter two making short work on the issues of speech, religion, and equal protection).

My views on why the religious freedom argument is actually a hard sell to the Court can be found here (with my early comments on it here). My analysis on the issue of "judicial restraint" is here. My take on what should have been the strongest argument against the RH Law can be found here and here. A copy of our petition can be found here.

For a not so serious take on the subject by So, What's News?, click here and here.

For audio recording on the Supreme Court hearings regarding this case, click here (for 9 July 2013), here (for 23 July 2013), here (for 6 August 2013), here (for 13 August 2013) and here (for 27 August 2013).


'In Constitutional Law, the Presumption of Constitutionality of a statue or provision occurs when two possible interpretations for a statute occur - one favoring the constitution while the violating, the one that is in favor of the constitution is taken as valid.

- It is presumed that Acts made by Legislations are valid and that they do not intent to enact a law that is ultra vires to the constitution. When a situation occurs to question the validity of the law, the burden is on the petitioner to prove contra.
- Courts generally do not want to interpret the Acts unless, by way of language, they are proved to be unconstitutional.
- While interpretation, the provision which is unconstitutional should be avoided and when proved to be unconstitutional, should become void.
- A statute is constitutional till the time that it was established to be unconstitutional.
- The interpretation that creates unjust and discriminatory situation should be avoided.
- The Presumption of Constitutionality says that a court having a jurisdiction cannot invalidate a statute unless there is a gross constitutional violation in a statute.
- When an interpretation is possible that will save an Act from an unconstitutionality attack, the court should accept the affirmative interpretation that will save it to the extent possible.
- Presumption fails to operate when it is clearly shown that the statute is unconstitutional.
- When a statute is retrospective in operational, it should not be constructed to have greater retrospective operation that its language makes necessary.
- The courts should not go into the act of adding words, reading words that are not in the statute, correct or make up to the deficiency as it will lead to casus omissus.'