RH law ruling, the writing on the wall

(Second of two parts)

As I explained in my column on Monday, the Supreme Court’s ruling on the Reproductive Law, rather than a victory for President Aquino, is not only a calamitous defeat for this administration. Perhaps more seriously, it also portends the High Court’s rejection of his two other policy monsters—the Disbursement Acceleration Program and the pact with the Moro Islamic Liberation Front.

The consequences of the Court’s declaration that these two major actions of President Aquino are unconstitutional would be disastrous for his rule.
Rather than being constitutional, the High Court declared as illegal seven of the RH law’s provisions and one of its implementing rules, which made the law an impuissant piece of legislation.

After all the hullabaloo over the RH Act, it turns out, if you read the actual decision and the separate concurring and dissenting opinions, that it was an amateurish effort, borne out of Aquino’s hubris that he can bulldoze any law he wants through Congress or the Court.

Eleven of the Court’s justices who were appointed by former President Arroyo concurred nearly totally with the ponente Justice Jose Mendoza’s draft that struck down as unconstitutional the key features of the law.

The four justices appointed by Aquino dissented with the ponente’s decision. But two of these justices upheld most of the majority’s decision, sending a clear message that they wont’ be Aquino’s puppets.

The first of Aquino’s appointees to the court, 53-year-old Maria Lourdes Sereno was a mediocre legal academic, and probably would have spent her entire career at the UP Law School as a professor if she had not known the President during their Ateneo College days. Aquino shocked the legal community and the citizenry when he appointed her to replace Chief Justice Renato Corona in 2012, after moving heaven and earth to remove him. She certainly owed Aquino big-time.

Yes, she argued that seven of the eight provisions struck down by the majority pass test of constitutionality. But she agreed with the majority that the provision in the law’s implementing rules—which defined an abortifacient with the adjective “primarily”—was unconstitutional. But that was the most important ruling of the Court made on the RH law. Sereno probably thought that after all, she will be in the Supreme Court until 2030, long after Aquino has been forgotten, unless she is impeached.

Justice Bienvenido Reyes, Aquino’s second appointee, agreed with majority decision except for the provision that lifted the requirement that minors, even if they already are parents, must seek parental approval to use birth-control devices or drugs.

This is a surprising turn of events: even two of Aquino’s appointees, Chief Justice Sereno and Justice Reyes, are distancing themselves from Aquino.

Perhaps, to paraphrase that old quote, gratitude like a photograph quickly fades in time.

The yellow party line obviously was for the Court to declare the entire RH law unconstitutional, that none of the justice should dare strike down any of its provisions. But only two of Aquino’s most recently appointed justices toed it.

Justice Estella Perlas-Bernabe, Aquino’s third appointee, voted that the RH Law stands the test of constitutionality, except that provision in the law’s IRR that gives no leeway to “conscientious objectors.”

Only Marivic Leonen the last justice Aquino appointed to the Court toed the party line absolutely, finding nothing wrong in the RH Law. “I vote to DISMISS these petitions… It should be implemented in full, ” he declared in his dissenting opinion. (Capitals in the original.)

Maybe it just hasn’t yet completely dawned on Leonen that he is a member of the highest court of the land, and will be so until 2032, long after Aquino has been forgotten.

The implication of the High Court’s ruling on the RH law is crystal clear: the overwhelming majority—13 out of 15 of the High Court’s member—are now very much independent from Aquino.

I suspect that many of them even deeply resent Aquino for his assault on the institution, which his battle to remove Corona was. Aquino also had ruthlessly harassed their colleague, Justice Mariano del Castillo by threatening to have him impeached for plagiarism, in order, allegedly, for him to toe his line in cases brought before the Court.

It is the Supreme Court really that holds in its hand’s Aquino’s fate in his remaining two years.

There is another aspect of the SC decision on the RH Law that should worry Aquino. Decisions of the Supreme Court, or the framework that determines its ruling, here and in the US can be classified in two.

There are decisions based on judicial activism. The contrasting view is judicial restraint or judicial minimalism.

Decisions based on judicial activism are based on the idea that a Supreme Court must be flexible to the nation’s needs at certain periods of time, in order to promote the people’s welfare.

Such decisions “bend” the provisions of the Constitution, and are not bound to the precedents made by its past decisions, so that the court can make major policies affecting the nation. Historic decisions of the Supreme Court in the US for instance which bore this characteristic are Brown vs Board of Education of 1954 which ordered schools’ desegregation and the Roe vs. Wade decision of 1973 that decriminalized abortion.

The latter for instance interpreted the US constitution’s bill of rights to rule that a woman even has right to terminate a pregnancy, something its framers obviously were not thinking about when they put it in the Constitution.

On the other hand, decisions that are based on judicial restraint take a very conservative view of the Court’s role and power, that it must bow down to the wisdom of those who wrote the constitution and of those who made past SC decisions. The view is that it must interpret the Constitution to the letter. It has no role in making decisions that would change society.

The SC ruling on the RH law was clearly one based on judicial restraint, as most exemplified by senior justice Carpio’s argument that even if science contradicts the Constitution’s definition of when life begins (at fertilization of the ovum) the Court has no choice but to uphold that definition.

This means that the dominant framework in the Supreme Court is one of judicial restraint.

This means that it would be useless for Aquino’s people to argue in the Court that the “Disbursement Acceleration Plan” was intended only to accelerate fund releases for the sake of economic growth, or that the Bangsamoro Agreement is necessary to finally have peace in Mindanao. That’s all bull, a Supreme Court with a judicial-restraint stance would think. Its justices would ponder the key issue: Does it or does it not violate the Constitution? That’s exactly the main criterion it applied in deciding on the RH law, and obviously the DAP and the Bangsamoro pact are miles away from being compliant with the spirit and the letters of the Constitution.

And what happens if the Court rules unconstitutional Aquino’s DAP and his pact with the MILF?

Unscrupulous as it has been these past four years, Congress will, I think, not be so shameless as to allow a President guilty of, as the Constitution puts it, “culpable violation of the Constitution,” to continue in office. At the very least, Aquino’s ideologue and brain trust, Budget Secretary Florencio Abad, would have to be sacked, and criminally charged for malversation of government funds.

As serious in its implications is when the Court declares Aquino’s pact with the MILF unconstitutional, which undoubtedly it will, given the precedent of its decision that the previous administration’s Memorandum of Agreement on Ancestral Domain was patently unconstitutional. Aquino’s Comprehensive Agreement on the Bangsamoro plagiarizes many of the Memorandum’s provisions, making only semantical changes. For instance, the “associative relationship” of the Bangsamoro in the Memorandum was simply changed to “asymmetrical relationship.”

And if Aquino’s pact with the MILF is thrown into the wastebasket, the separatist rebels would most likely go to war again, claiming from a high ground that they were betrayed. They’ll claim that they won’t be so stupid as to negotiate again with a party whose head—Aquino—promised them the moon, but didn’t deliver.

Aquino’s hubris—his brazen attack on the Supreme Court to remove its head, the use of funds he called DAP to bribe Congress to support him in that assault against a co-equal branch of government, his wishful, vain thinking he’ll win the Nobel for signing a peace pact with the MILF, and his imperious presumption that the High Tribunal will do his bidding—will be the unraveling of this poresidency.

With Congress and the most powerful media having been bought off since Aquino assumed power, it is the Supreme Court that will prove to be the bastion of the Republic in this country blighted by the yellow scourge. –Rigoberto Tiglao, Manila Times
tiglao.manilatimes@gmail.com
Www.rigobertotiglao.com and www.trigger.ph