Being Right

A fair amount of complicated issues exist regarding the nature of judicial power and rights. This is illustrative of the dangers brought about by the injudicious, imprudent, and impulsive liberal progressive habit of tinkering with the tried and true. Judicial power is essentially the ability to rule over cases and determine compliance with procedural due process. Unfortunately, this has evolved into — unchecked for decades — the power to decide upon matters better left to the judgment of the elected branches of government.

Such (along with the nature of rights) is what Hanah Francine C. Macababayao (a senior law student at UA&P) sought to explore in her thoughtful study “Revisiting Republic v. Sandiganbayan: A Search for the Proper Basis of Rights.”

The paper itself is in turns insightful and persuasive, and make intelligent reading for those interested in constitutional law. Which should be everyone.

Its axis is the case of Republic v. Sandiganbayan, where the properties of an accused were confiscated pursuant to a defective search warrant. The resultant constitutional case reached the Supreme Court.

Finding the Philippines at that time governed by no constitution (being the period between the repeal of the 1973 Constitution and the coming of the present one), the Court nevertheless ruled “that the Covenant on Civil and Political Rights (Covenant) and the Universal Declaration of Human Rights (Declaration) remained in effect during the interregnum. Therefore, the search and seizure of the items confiscated was illegal.”

The logic in that ruling has been questioned (and rightly so) because if the Bill of Rights is said to be inapplicable due to the absence of a constitution, then what legal basis is there for a foreign treaty to apply and have effect domestically when no incorporation or transformation clause exists to effect it?

Furthermore, what lends greater opaqueness to the ruling’s reasoning is the Court’s admission that the “the signatories to the Declaration did not intend it as a legally binding document, being only a declaration, the Court has interpreted the Declaration as part of the generally accepted principles of international law and binding on the State. Thus, the revolutionary government was also obligated under international law to observe the rights of individuals under the Declaration.”

Macababayao interestingly refers to this as “judicial legislation” and, thus, “the doctrine of separation of powers protected in the Constitution was violated.” Considering that judicial powers refer to “interpreting and constructing,” yet such “presupposes that there is an existing law or Constitution to be discovered and expounded. In the instant case, there was neither a Constitution nor a statute recognizing the human rights embodied in the Covenant and the Declaration that would render the act of the Republic illegal.”

Not that lack of due process should be abided. But what Macababayao is arguing is that the rights of the accused could have been amply protected without need of a circuitous (and constitutionally doubtful) referral to international law. Instead, it would have been better to examine the nature of rights itself and proceed from there.

For analytical purposes, Macababayao examined the human rights and constitutional issues brought about in the Guantanamo Bay Detention Camp. Here, various legal experts determined that the “list of human rights found in the Federal Constitution may still be invoked on the basis of Natural Law.” Furthermore, the US Constitution “makes reference to natural rights in its preamble and the bill of rights whose amendments are ‘unquestionably the product of natural law thinking’.” A most apt example is the due process clause, characterized as “a limitation to the government by virtue of a ‘fundamental body of natural rights belonging to man’.”

Our constitutional system clearly recognizes the natural law foundation of our rights. Thus, according “to the Committee Reports, the Philippine Constitution makes reference to the American Constitution xxx [T]he Philippine bill of rights and the preamble makes reference to natural law as an objective basis of rights.”

Indeed, in ruling after ruling, our Supreme Court (expressly or impliedly, directly or in allusion) referred to natural law, from People v. Asas (recognizing the right against forced confessions as part of the natural law) to Laurel v. Misa (on the natural law and the prohibition on wars of aggression) to Estrada v. Escritor (on a “higher law”).

It must be emphasized that when the Supreme Court invokes natural law, it isn’t referring to any theological or religious concept but rather recognition of objective standards as a consequence of human nature.

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.”

Or as Hanah Macababayao herself brilliantly concludes: “Natural law in itself which necessarily includes human rights is by its nature binding even without positive law.”


Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula