Senator Santiago’s “constitutional” follow-up to her “encyclical”

Posted on 22 August 2011 by Haggai De Cena

This article is posted with permission from WillyJ. For a better understanding, you may also read the first part of this article.
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The meat of Senator Miriam Santiago’s RH Sponsorship speech (Parts 2 and 3) rests in claiming that the enactment of the RH bill will enjoy a presumption of constitutionality. According to her since there is no clear constitutional prohibition, the passage of the bill would amount to a “legislative construction” of Article 2 Section 12 which is at the heart of the constitutionality issue.
I am not about to argue Senator Santiago’s legal opinion point by point, for that is well beyond my reach. I would just like to point out that at least three legal luminaries do not share her legal constructions, and in fact flatly goes against them.
Here are the key passages of Senator Santiago’s sponsorship speech.

There are a number of constitutional provisions that underlie the RH bill. But the most salient is what I would call the “Sanctity of Life” Clause found under Article 2, as a declaration of state policy:
Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.
This provision does not mention the term “reproductive health” or any of its affiliate vocabularies. This is in the nature of a constitution. As explained in the 1930 case ofLopez v. de los Reyes,[1] speaking of the Constitution:
It is an instrument of a permanent nature, intended not merely to meet existing conditions, but to govern the future. It does not deal in details but enunciates the general principles and general directions which are intended to apply to all new facts which may come into being, and which may be brought within those general principles or directions.
The Constitution should not be read like a newspaper story, on the basis of which each reader can feel free to express his own interpretation. Instead, to discover the intent and meaning of the Constitution, we have to turn to a process called “constitutional construction.”
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The Constitution, directly or indirectly, does not prohibit the RH bill. Therefore, in constitutional terms, this Senate is free to enact this bill. It is now well accepted in our jurisdiction that under the “rational basis” test, so long as an act of Congress bears some reasonable relationship to the grant of power to the national government and it is not otherwise prohibited by the Constitution, a reviewing court must find the law to be necessary and proper.
If the Senate passes the RH bill, our action would amount to a legislative construction of the Constitution. The rule is that a practical construction by Congress of a provision of the Constitution is entitled to great weight and should not be lightly disregarded. Hence, if we pass the RH bill, it will enjoy a presumption of constitutionality if it is questioned in the Supreme Court.

In other words, Miriam says the Constitution does not prohibit the RH bill, and that the intention of Article 2 Section 12 may be constructed by the legislature.
Here I note that Fr Joaquin Bernas – a noted constitutionalist and member of the 1986 Constitutional Commission – clearly says otherwise.

The unborn’s entitlement to protection begins “from conception,” that is, from the moment of conception. The intention is to protect life from its beginning, and the assumption is that human life begins at conception and that conception takes place at fertilization of the zygote. Although the constitutional provision does not assert with certainty when human life precisely begins, it reflects the view that, in dealing with the protection of life, it is necessary to take the safer approach. For this reason the Constitution commands that protection be given from conception, that is, from the fertilization of the zygote.
This is reflected in one of the exchanges during the debate. Since the protection of the unborn was to begin from conception, Reverend Cirilo Rigos asked when the “moment of conception” was. Commissioner Bernardo Villegas, who was the principal sponsor of the provision, answered that the conception took place with fertilization since “it is when the ovum is fertilized by the sperm that there is human life.” When Commissioner Fely Aquino observed that at that point there would only be biological life, Bishop Teodoro Bacani did not contradict her but said that there would already be biological human life even if there was as yet no “person.”
From this it can be seen that the intention is to protect the “life” even before implantation in the uterus, that is, from the moment biological life begins. The constitutional intent, in other words, is to play it safe lest human life be destroyed and to impose the protection even before implantation in the uterus. 
This brings us to the question whether the reproductive bill allows or even prescribes the use of birth control methods which have the effect of blocking a fertilized zygote from being implanted in the uterus or of expelling a fertilized zygote before implantation. This is a question which, while it has constitutional, religious and moral implications, must first be answered by medical science. Has this question been sufficiently explored in the course of the debates over the reproductive health bill? My impression is that it has not. And if the law is passed as proposed, the question will most certainly reach the Supreme Court.

Dr. Bernie Villegas, likewise a member of the 1986 Constitutional Commission and the actual sponsor of the said constitutional provision, is more specific.

In the Philippine Constitution of 1987, conception is defined as fertilization, the moment the egg is fertilized by the sperm. This was the majority decision (32 to 8.) of the members of the Constitutional Commission of 1986 convoked by the late President Corazon Aquino. This majority decision was made after the most thorough debate…

Thus it is evident that Miriam Santiago’s legal opinion on the Rh bill does not square with the legal positions of two prominent members of the 1986 Constitutional Commission. In fact they contradict her and so it is incumbent for us to take Senator Santiago’s opinion with a healthy dose of skepticism. At any rate, she avers that the Supreme Court would be tolerant of the passage of the RH bill in the event the ball is passed on to it. Now, if only she had come across Supreme Court Chief Justice Renato Corona’s earlier statements on the matter…

…The chief magistrate added that there are legal questions that will surely be brought before the SC once the bill becomes law.
If such questions were presented to the High Tribunal, Corona pointed out, it would be the court, not Congress , which will decide on the fate of the RH measure.
The SC could even inquire into pieces of legislation passed by Congress under its power of judicial review.
Such legislation [according to the Chief Justice] will include cases that are justiciable for “grave abuse of discretion or amounting to lack or excess of jurisdiction.”

Again if only Miriam paid attention to other notable but contrary legal positions…she might not sound so self-assured. Before that time comes, I guess hell will freeze over first.