Our natural Constitution

is my Trade Tripper column in this weekend issue of BusinessWorld:

To my mind, what ironically went below many people’s radar are the most damaging portions of the April 8 Reproductive Health (RH) Law decision penned by Justice Jose Mendoza: “With respect to the argument that the RH Law violates natural law, suffice it to say that the Court does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution.”

It then goes on to say: “While every law enacted by man emanated from what is perceived as natural law, the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual law of the past or present.”

“Unless, a natural right has been transformed into a written law, it cannot serve as a basis to strike down a law. In Republic v. Sandiganbayan, the very case cited by the petitioners, it was explained that the Court is not duty-bound to examine every law or action and whether it conforms with both the Constitution and natural law. Rather, natural law is to be used sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is applicable.”

The foregoing, with all due respect, evokes a substantial misappreciation of natural law. To say that “natural law is to be used sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is applicable” is itself contradicted by the ruling. Setting aside precisely the fact that the Constitution is silent on the subject of contraception, Justice Mendoza himself declares: “Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and transcends any authority or the laws of men.“

The ruling also seems to be saying that our Constitution has no philosophy, without history, and has vacuum as context.

Had the ruling been within the parameters of the US Constitution, the above statements would be correct. US constitutional law places strict boundaries on the US Supreme Court’s jurisdiction. Nevertheless, the US SC employed natural law in a number of cases.

Our Supreme Court, on the other hand, has the power to strike down laws considered done with grave abuse of discretion. This serves as basis for our Supreme Court to examine the wisdom of a law (a power not normally given to judicial bodies of other countries), whether the law is in conformity with reason, and complies with the overall objectives of the Constitution.

Our Supreme Court itself knowingly employed the natural law (or reasoning involving or related to it) in many past decisions. Our domestic laws, such as the Civil Code, in fact contain provisions in which the natural law is expressly mentioned. The international law system, which the Philippines is part of, considers natural law as basis for determining whether other international law norms (such as treaties) are valid, a fact constantly recognized by previous Supreme Courts.

Instead, the present Supreme Court seemed to have mixed natural law with a religious freedom argument, a point which Hugo Grotius (the father of international law) sought to dispel: “Natural law would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs.”

The saving grace in all this is found in the dissenting opinion of Justice Mariano Del Castillo: the statements in the ruling quoted earlier “are not necessary in the disposition of this case and appear to be an inaccurate description of natural law. The Court need not foreclose the usefulness of natural law in resolving future cases.”

Hopefully, Justice Del Castillo’s more considered statements could serve as an opening for natural law to be considered in future cases, particularly on legislation involving same-sex marriage, divorce, stem cells, and euthanasia -- all of which the Constitution is silent on and for which only the natural law and the invocation of the “common good” (found in the Preamble) stand as reasonable standards.

And, since natural law has been a part of our constitutional system, resort to it by the Supreme Court can in no way be considered as “judicial activism.”

Finally, this also tells us that our political system is dominated almost exclusively by “positivists” that ignore the culture, history, and philosophy upon which Philippine society is based. There is therefore a need to work harder in correcting this imbalance that has resulted in so much inconsistency in our legal system.