is my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
A topic I’ve oft been asked is on the
proper role of natural law in our constitutional system. As it is, one dictum
goes “that Congress must legislate in accordance with natural law but the
Supreme Court must rule in accordance with the Constitution”. However, the
reality and the way our present Constitution is written provide significant
deviation from that.
It must be emphasized that our
constitutional system, even prior to the 1987 Constitution, allows our Supreme
Court to overturn laws not merely on the basis that the Congress did not comply
with constitutional requirements (i.e., “procedural due process”) but also to
inquire as to the inherent “justness” of a law (i.e., “substantive due process”).
Due to our experience with martial law in the 1970’s, where our Supreme Court
had to shy away from ruling on the measures taken by then president Ferdinand
Marcos (as almost every act he did, whether morally questionable or not, was
done with legal precision), the present Constitution had a new provision
written into it: Article VIII, Section 1. Thus, now expressly, the Supreme
Court has the power to determine if the acts of Congress (or the president’s)
were done with “grave abuse of discretion amounting to lack of or excess of
Accordingly, the Supreme Court has the
authority to overturn a law enacted by Congress if the same was
“"capricious or whimsical exercise of judgment” or if such was enacted in
an “arbitrary and despotic manner by reason of passion and hostility”. The
latter indicates a law that is unfair, unjust, or contrary to reason, motivated
as it was, for example, by mere “passion.”
Taking that into consideration, is the
Supreme Court mandated to use natural law as a standard (alongside and even
beyond that of the Constitution) with which to view Congressional enactments?
The answer is yes. For two reasons. One is that because natural law is: “an
objective standard of right and wrong derived from the use of right reason”. If
a law be contrary to natural law, it goes against reason, and an irrational law
logically would be an act of “grave abuse of discretion amounting to lack of or
excess of jurisdiction.”
But there’s another and more simple
reason: because the Supreme Court itself
This (expressly or impliedly, directly
or in allusion to) in ruling after ruling by the Supreme Court, which in a
partial listing alone would include: People v. Asas (recognizing the
right against forced confessions as part of the natural law); People v.
Agbot (recognizing that the natural law forbids killing); Mobile Oil Philippines, Inc. v.
(the element of promise as the basis of contracts as an
influence of natural law); Manila Memorial Park Cemetery v. Court of
Appeals (estoppel as part of natural law); Yu Con v. Ipil (on
natural law in maritime law); In Re Testate Estate of
Narciso Padilla (on the prohibition of unjust enrichment in the natural
law); Moncado v. El Tribunal del Pueblo y Juan M. Ladaw (statement on
the innate human sense of justice); Laurel v. Misa (on the natural law
and positive law prohibition of wars of aggression); Ansay v. The Board of
Directors of the National Development Company (on
natural obligations); Philippine Commercial and Industrial Bank v. NAMAWU-MIF
(on the natural law basis of certain labor code provisions); De La Llana v.
Alba (on the role of natural law in judicial decisions); Marquino v.
Intermediate Appellate Court (on the natural law basis of property rights);
Uniwide Sales Realty and Resources Corporation v. Titan-Ikeda Construction
and Development Corporation (on natural obligations).
Then there are specific
cases, where aside from referring to a “higher law” or “rule of reason”, the
Supreme Court also touched on the nature of “human dignity”: Estrada v. Escritor; Blooming
Mills Employment Organization v. Philippine Blooming Mills Co., Inc; Floresca vs. Philex Mining
v. Diokno; Republic
All the foregoing must be
read alongside Article II, Section 2 of the Constitution, incorporating
international law (which has natural law as basis, as even any law student
knows) into our constitutional system. Examples of this: the 1948
UN Declaration on Human Rights; the 1966 International Covenant on Economic,
Social and Cultural Rights; the International Covenant on Civil and Political
Rights; international law doctrines of jus cogens
(as well as erga omnes); and the Nuremberg War Crimes Trials.
It must be
emphasized that when the Supreme Court invokes natural law, it wasn’t referring
to any theological or religious concept but rather an acknowledgement that
there are indeed objective standards. Even the US Supreme Court referred to
As revered legal expert Jorge Coquia explains: “One standard that can serve as a
guide for courts in resolving concrete cases involving conflicts of the
fundamental freedoms of speech, press, property and religion is Natural Law.
xxx Positive law needs the enduring critic provided by Natural Law. It must be
confronted by objective justice.”