The conventional wisdom is that the Philippines has good, even great laws, but that the problem is in the implementation, which is done either badly or not at all. The country, so say the conditional and eternal optimists, would otherwise be an earthly paradise via legislation.
But anyone who’s been following the decisions of the Supreme Court should have reason enough to question the validity of that claim. In its most recent rulings, the Court was practically warning the citizenry to scrutinize every major piece of legislation ground out by the Congressional lawmaking mill—they’re likely to be constitutionally flawed.
The most recent example is the Supreme Court ruling on the constitutionality of the Responsible Parenthood and Reproductive Health Act of 2012 (Republic Act 10354). It declared the Act “not unconstitutional,” but at the same time ruled that eight of its provisions were. Among those provisions were those providing minors access to artificial means of birth control without parental consent, and penalizing healthcare professionals for failing to provide reproductive health information.
The lawyers can debate why the Court used the double negative phrase of “not unconstitutional,” rather than the more straightforward “constitutional,” but the fact remains that the law is now in tatters, despite the opinions of those supportive of it.
The same can also be said of the Cyber Crime Prevention Act of 2012 (RA10175), key provisions of which the court also struck down as unconstitutional, while declaring the rest of it “constitutional,” including its repressive provisions on online libel.
Forget about the possibility that the Court, by trying to please everyone, is in the process antagonizing everyone. In both cases, the result has been confusion among the public, including those groups that have been focused in their opposition to or support for both laws. Those who support and those opposed to RA 10354 claimed victory, with some media commentators declaring both “winners,” which on the face of it also means that both are losers.
The Court ruling on RA 10175 was as mixed. It declared the power given the police to “take down” supposedly libelous websites, and real time monitoring of computer-generated content unconstitutional, but upheld the extremely problematic provisions on online libel, which raises the penalty for criminal libel as already defined in the 82-year old Revised Penal Code by one degree, and opening the possibility of being penalized for online libel by as much as twelve years in prison.
But the merits and demerits of either law aside, what’s disturbing is that both laws passed through both Houses of Congress and were presumably vetted by Malacanang lawyers before President Benigno Aquino III signed both, with RA 10175 presumably having been examined by people with more knowledge of the Internet and computers than a six-year old.
The House of Representatives and the Senate are, after all, if they’re anything, the domains of lawyers who, as lawmakers, should know enough of the law to at least be familiar with the Constitution, which in the first place they all took an oath to uphold.
Apparently that’s not the case, confirming suspicions that bills in Congress—in the House especially—are not given the rigorous scrutiny they deserve given their possible impact on the lives and liberties of the citizenry, and are either passed or killed merely on the basis of how they could affect each congressman or senator’s political and economic interests, or how strong or weak is the lobby group seeking their approval or scuttling.
If the citizenry can’t trust either the House or the Senate, given their current composition (a number in either House are also implicated in the misuse of pork barrel funds) and apparent ignorance with such public issues as free expression and free choice, can’t be trusted to know or care enough about the Constitution to pass laws that will pass Supreme Court muster, how far can the citizenry trust the House of Representatives to amend the Constitution itself?
And yet that’s exactly what’s going to happen, if the same House had its way. The plan, say insiders, is for the House of Representatives to constitute itself into a constituent assembly rather than to call for a constitutional convention to amend the Constitution, into the key provisions of which they intend to simply insert the phrase “unless otherwise provided by law,” among the target provisions being those disallowing foreign ownership of land and of mass media.
The prohibition against foreign ownership of the media is in Article XVI, Section 11 (“The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.”), into which the insertion of the phrase “unless otherwise provided by law” would then allow Congress to pass laws allowing the entry of foreign interests in the media.
Among the other flashes of evil genius from the House of ill repute—this time to savage the Bill of Rights– is the suggestion to amend Article III, Section 4 of the Constitution to include the phrase “responsible exercise of”, so as to make the provision read thus: “No law shall be passed abridging the responsible exercise of freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”
The bottom line is that, given both its record of crafting—and that word is used loosely—flawed laws whose key provisions the Supreme Court has been striking down with near-regularity, and its interest in, among others, revising the Constitutional provisions on term limits so they can keep their hands in the public till, it isn’t the House of Representatives that should be tinkering (this time the term is used advisedly) with the Constitution, but the real representatives of the people elected for precisely the purpose of amending the Constitution. The Constitution is quite simply too important a document to leave in the grubby hands of this country’s alleged “lawmakers,” who’re actually among its first lawbreakers, as the recent rulings of the Supreme Court so loudly prove.
First published in BusinessWorld. Photo from PCOO.