The Philippine Constitution: is it set in cement or is it a living, growing document?
Abraham Lincoln delivers the Gettysburg Address
The Supreme Court of the United States last week ruled on two ground-breaking cases, one preserving President Obama’s national health care program, the other permitting same-sex marriages. The rulings were groundbreaking because they were “liberal” findings among a court stacked by former presidents to be conservative.
- What happened?
- Why?
- What does it mean to the Philippines?
For sure, I am no constitutional scholar. We have Yvonne in our Society to perform those honors. But I understand what happened.
What happened?
In both cases, one or two conservative justices went with a liberal interpretation of the Constitution. Both words there are important, as we will soon see.
Liberal.
Interpretation.
On the health care ruling, Chief Justice Roberts and Justice Kennedy went with the liberal interpretation that blocked a shutdown of subsidized health insurance exchanges in 34 states. Shutting the exchanges would have gutted “Obamacare”. The opinion was written and read by Chief Justice Roberts. The ruling infuriated conservative American political blocs as well as Justice Scalia who wrote and read a fiery dissent to the ruling.
But the votes were with the Obama health program, 6 to 3. Chief Justice Roberts wrote:
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
Justice Scalia’s chief complaint was with the word “interpret” in that finding. His view . . . and the view of conservatives across the nation . . . was essentially that the Constitution should be read word for word. It ought not be interpreted to distort its original meanings.
So we see the two sides of the ruling delineating the basic distinction between conservative (as it was) and liberal (as it ought to be) philosophies.
The words say this.
versus
The words mean this.
The US Supreme Court’s ruling on same-sex marriages followed a similar path. This time, only Justice Kennedy switched from the conservative side to the liberal, and he penned a most eloquent opinion. This time, Chief Justice Roberts wrote the scathing dissent. The vote was 5 to 4 in favor of same-sex marriages. Justice Kennedy’s close will stand right beside the words of Abraham Lincoln (Gettysburg Address) and Martin Luther King (“I have a dream . . .”) in remarkable statements that changed the landscape of American social values:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.
Why did the rulings happen?
The conservative justices applied independent judgment, stood against powerful vested interests, and voted their knowledge and conscience. They did not play political games. They did not read the words in the Constitution as set in cement, but, rather, took the view that the document MUST be read according to our more informed awareness today. We know. We grow. We cannot hold to a document written over 200 years ago when we did not know what we know today.
What does it mean to the Philippines?
It means the members of the Philippine Supreme Court must decide if the Philippine Constitution is set in cement or is a living document. And are they a court of conscience or of politics?
We will be able to see how big of mind and conscience, how bold, how strong the Philippine Supreme Court Justices prove to be. Can they free themselves from politics to vote knowledge and conscience? Can they interpret the Constitution as knowledge grows, or will they simply read the words as written in 1987 based on yet older values that are changing around the world?
Even Pope Francis . . . today . . . understands that a marriage that is violent ought not persist. But the Philippines does not allow divorce, and annulment proceedings favor the wealthy. That is two old values now that the Philippines preserves: (1) binding people to brutal or dysfunctional partnerships, and (2) allowing escape only for the wealthy, disenfranchising the poor from compassion and justice.
It sometimes seems there is no way to update Philippine values other than re-writing the Constitution, the document that is the foundation of the nation and is revised at some risk that what comes out the other end is not what was expected.
We get mixed signals as to greatness of mind and conscience from the Philippine Supreme Court today. On the DAP case, we got a narrow ruling that followed the words of the Constitution and turned good faith to bad faith, and good results to “stop that”. On Justice Ong’s removal, we got greatness of vision and values from the majority, who held that dishonesty from a judge is abhorrent. We got patronage from the minority, and votes for impunity.
A group of Arroyo appointees on the Court appear adhere to political rulings over principle. They side with patronage. Favor. Impunity.
The next President of the Philippines will get to appoint 11 Supreme Court justices.
Woe to the nation if that President believes the justices should obey his will.
Here’s what a high-principled, non-political Supreme Court means to the Philippines.
- It is a nation going up, not down.
- It is a choice for high human values and individual conscience over political values with favors granted and received.
- It is a Constitution that is able to adapt to new knowledge; it is not a rigid, limiting and antiquated document.
In the arena of social values, which evolve as knowledge evolves, the US Supreme Court . . . in the two rulings cited above . . . demonstrated that the Supreme Court defines the character of a nation.
And in the Philippines?
The photograph below of Abraham Lincoln delivering the Gettysburg Address is most striking. He is not the man standing tall in the stovepipe hat as commonly portrayed is sketches of the time. That is his bodyguard. There is no grand stage or microphone, just a crowd of people listening. Mr. Lincoln is bare of head, looking down and reading. He is just another man standing in a mass of humanity, showing no distinction at all . . . other than the character of his words.
The Society of Honor by Joe America 
It seems to me that the same sex marriage ruling is based on a quite literal reading of the equal protection clause, and an the solid conservative principle that people ought to be able to do as they please as long as they are not intruding on the rights of others. The cause has been championed by liberals, but it is fundamentally a libertarian position.
“Libertarianism (Latin: liber, “free”) is a political philosophy that upholds liberty as its principal objective. Libertarians seek to maximize autonomy and freedom of choice, emphasizing political freedom, voluntary association and the primacy of individual judgement.” per Wikipedia
So noted.
Agree with most but with a minor quibble.
Scalia plays political games.
Yes he does, and he has received considerable criticism for personalizing his arguments, deriding the other justices.
There are quite a number of distinguished Filipino lawyers who have served on key international courts and legal organizations, and their global perspective is urgently needed in the SC. Hoping that media and Philippines-based lawyers will help to bring to wider public attention these possible candidates when the time for appointments comes round. (Lawyers often have the irritating habit of talking only to other lawyers.) As for the current SC: its judgement can’t be trusted–particularly with regard to charter change.
We get Roque instead. It would be fantastic if LP or other parties recruited a notable attorney to run. Rather than actors. Just one from outside the dynastic realms. At least demonstrate that joking with the public is ending.
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Typo: “The conservative justices…” should read “The liberal justices… ” in the paragraph under the subheading “Why did the rulings happen?”
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Actually not, although it could have been better written. What I meant was “the conservative judges who voted the liberal position . . .” It took great courage to go against the rabid political right, both in Congress and on the court.
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Got it, thanks.
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Joe Am I did not have time to read every word of this piece after I glanced at conservative judges and liberal judges, also glimpses of liberal decisions and conservative decisions. Also elsewhere there are accusations that we borrowed even copied in toto most of the provisions of the US constitution and other laws. Which I don’t believe to be true.
Conservatism and Liberalism ? what is that? Hello, HELLO? What I have observed upon and after the demise of the two party system and the prostitution of the Supreme Court immediately before, during and after Martial Law was the overwhelming charisma and dominance of only two ideologies: Communism and Opportunism.
As ideology or political philosophy these conservatism and liberalism, WHAT IS THAT ? Ask the justices and the judges, the past and incumbents President and his vice, the Senators, and Congressmen whether their principles and notions of public service have something to do with their being liberal or conservative. Very likely they will parrot the same answer. They are all for the poor and good governance under a mutant democratic form of government (like China and Russia?). These powers- that- be may not be communists but they preach communism as goals and practice opportunism in governance . Their holy grail is to maintain balance between the two: communism (primacy of the poor) and opportunism ( staying forever in power).
How do they appoint Justices of the Supreme Court of USA? And the Philippines too? How many oceans apart are they the same or different ? Search for similar accomplishments to counterpart names to Corona, Davide, Fernando, Panganiban, to name a few. What have they inflicted to jurisprudence for the betterment of poor people’s lives in this country. And vice-versa.
Thanks for simplifying what we ideological bi-polar Americans find difficult to grasp, that the poles here are different, and I like your words for them, Communism and Opportunism. That is actually what the American power system is evolving to as well, as Republicans largely represent Opportunism and Democrats represent Communism. Justices in America are appointed pretty much the same way as here. Find a dignified lawyer who has a track record of rulings that suggest a conservative (opportunistic) or liberal (communist) bent. Give them the gift of appointment and expect the gift to be repaid during their term. Rather like an installment loan.
On reflection, though, it seems like the divide on the Supreme Court here is not between Communism and Opportunism, but between different families of opportunists. Unless the Aquino “straight path” is considered to be leaning in the direction of Communism. The Leftists certainly don’t seem to see it that way.
“Liberal” and “Conservative” are terms used in the US in ways that make little objective sense, but which retain utility because they are wirely understood and describe actual phenomena that also make little sense, but which are nonetheless real.
An American “liberal” will typically support economic policies that increase government regulation of business and corporations, government involvement in the economy, higher taxes on the rich and a wider social safety net. None of this is even vaguely “communistic”, unless of course you are from the farther fringe of conservativism. Conservatives take pretty much the opposite point of view. Conservatives call liberals communists and liberals call conservatives fascists, but these are largely labels with little relation to reality. Closer to the center, both sides share similar goals but offer different prescriptions on how to get there.
In foreign policy liberals tend to favor negotiated and multilateral solutions, while conservatives are more willing to use force; liberals prefer to speak of global issues while conservatives favor American interests.
In social issuea roles are reversed, with liberals favoring greater liberty and less government restraint, while conservative, at least the so-called “social conservatives” prefer proactive effort to revert to a largely hypothetical set of “traditional values”.
None of these labels have nay real relevance to or any real analog in the Philippines, as far as I can see.
The charge generally leveled against President Obama, not necessarily from the fringes, but from mainstream Republicans, is that he is a “socialist” for his willingness to spend THEIR taxes for programs that provide health care to others or, God forbid, immigrants, or fund planned parenthood clinics. So the concept of federal government doing a better job of distributing wealth to the non-rich is akin to socialist or communist thinking. Here, the Liberal Party’s CCT program is a wealth distribution plan. Socialist. I have also not been able to figure out what the correct political bucket for the Philippine federalists, which are akin to Republican states’ rights advocates. There may be a parallel there, too.
But for sure, the Philippines is patronage politics, personality based above any intellectual reasoning. So it is fruitless to apply labels, other than as an aid to discussion. I agree with you on that.
Steve I’m neither one nor all of the above; I’m just a visiting little boy having a good time in them one of the US mid-west country fair shooting with a Red Ryder air rifle them lined ducks moving from left to right or right to left. Them ducks to me are mere abstractions, the intangibles, indirect costs and indirect benefits of a cost/benefit analysis of ideologies.
Over the years I’d say been there watched, observed and read that; not done that. Chronologically, in Ph used to be only dominant Nationalista and Liberal until the storm surge of thief-lead whatevers, in UK it’s Conservative and Labor (Tories and Whigs?), in a South Pacific country it’s family , clan or tribal parties, in Australia it’s Liberal and Labor, in India it’s Janata and Congress Party, in USA it’s the Democrats versus the Republicans ; Canada the smallest (with only 35 million plus?) among the bigs seemed to have lead the pack into the future of the politically clueless with Harper’s Progressive Conservatives , Mulcair’s New Democrats, and Justin Trudeau’s (upcoming New?) Liberals. I hew closer to the Canucks who write the Editors to claim Canadians have no ideologies , just good people. So I simple mindedly thought it will be better for the world and the Ph and Canada even the USA for the Philippines to become a Canadian Province (that will happen if there’s a plebiscite).
There you go! Just a little boy visiting a small US prairie town fair having fun with a BB rifle to a Kevlar suited PTSD emaciated man in a motorized wheel chair holding an empty rocket launcher in Nathan Philips Square. Joe Am and Steve, it’s not how time flies but how the mind flies to say that political aggrupations are evolving . The diverse world is slowly, gradually turning into a global village like immigration is imperceptibly becoming the neo-colonialism where the struggle between locals and newcomers is in the acculturation process . How long will it take for a global culture to free (that’s a verb) men of racial borders? Doesn’t really matter when a century is just a flicker of light in the vastness of infinity.
You tossed me back to my youth with that Red Ryder bb gun. You also write some pretty tough prose poetry, and cause me to reflect on how much life, and ups and downs, can be packed into that flicker of light.
While I am neither in favor nor opposed to same-sex marriage (I’m leaning towards in favor, but I don’t think the Philippines is ready for it), it pains me to see the reasons that same-sex marriage opponents give. They think that same-sex marriage is an “abomination”. That’s no way to treat gays and lesbians. For a country which tends to be more open about homosexuality than the rest of its neighbors bar Thailand, it’s painful to see such extremes manifestations of conservatism.
Even Pope Francis . . . today . . . understands that a marriage that is violent ought not persist. But the Philippines does not allow divorce, and annulment proceedings favor the wealthy. That is two old values now that the Philippines preserves: (1) binding people to brutal or dysfunctional partnerships, and (2) allowing escape only for the wealthy, disenfranchising the poor from compassion and justice.
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I agree. In fact, Pope Francis just mouthed what has been cited all along the reason why couples should not remain in violent and irreconcilable relationship. We have legal separation, though.
I also think any reform or changes in social or civil rights or values does not entirely rests on the Supreme Court. Other institutions, more influential than the SC, such as the Church, needs to step up and do their role.
On same sex marriage, it’s not only the Philippines is not yet ready but it will be never be ready for it until the Church says ‘go’.
I’m for gay marriage except that there should have been distinction for I believe that marriage between opposite and same sex are two different matters. For administrative purposes, the two should have been made separate and equal. 😯
“Separate and equal” is not equal. Racial segregation in the US has already shown that. Even the required separateness between men’s and women’s facilities and athletics often leads to at least some inequalities.
But I’m not talking about separation by reason of preference. I’m talking about separation by reason of nature for the purpose of identification and documentation. It’s in the realm of administration rather than permission.
It’s a separation in papers only. It’s like separation of gender in public restrooms. You identify your self to whom the toilet is for. I don’t think that’s not equal. (That’s also ironic. We settled the issue of gay marriage but we have yet to see public toilets especially reserved for LGBTs. 🙊)
If you are gay and you want to marry you can do so anywhere you want to and to any institution you want your marriage solemnized. However, the documentation and recording of it should be separate from same sex marriage for purposes of official recordings and historical reference. There should be a separate documentation of marriages as categorized to have a clear records of statistics in terms of numbers accumulated, divorce granted, estate and tax transaction, death of partners, etc.
Same sex marriage is a new phenomenon, so to speak, hence we have to have a clear written history of it through exclusive record and documentation. That aside from ease of identification if a marriage is between same sex or not.
“They did not read the words in the Constitution as set in cement, but, rather, took the view that the document MUST be read according to our more informed awareness today.” – Joe
I hope we can all retain this awareness when making our own decisions that is based on long standing mores.
With this mind, I believe both divorce and same-sex marriage in the Philippines should not be considered until property laws, practices, taxation and enforcement are clearly defined, universally practiced and devoid of corruption. Property in the Philippines is not merely a personal family asset that can be priced and distributed by a will. It is a cornerstone of family clans and each time a leading family member dies, the impact changes the dynamics of a clan. Divorce will have the same impact. The current murky laws and corruption regarding properties in the Philippines has resulted in properties never being transferred and titled from the original owners. Families accept this and simply occupy the properties since it effectively belongs to all of them. All the government cares is that property taxes are paid. Divorce and eventual divorce of same-sex marriages will disrupt all this. The current social alternative to divorce is to simply separate and since re-marriage is not possible, the focus is on the children as it should be and all subsequent partnerships and their offsprings will rely on the existing relationship only.
Very interesting argument, John, that the mechanisms of wealth assignment are so messed up that divorce would not do what it is supposed to do, allocate wealth fairly. I’ve got to ponder that . . .
Kids are a shared commodity in the Philippines, too . . . like land, I suppose. It is not uncommon for a child to be raised by an uncle or spend young days with Lola as the now single and never wed mother goes out to earn some money. That money is then shared with the family, just the way OFW’s do it.
So the Philippines is rather like a large commune with shared interests in land, kids and money. In that scheme, divorce is a wrench in machinery that is working . . . well, not smoothly . . . but the way it works. Thanks for the visual on that.
I would add that it took about a year for the title on our property to be transferred from the prior owner, who peeled off a share of his titled land to sell to us. It required some 24 signatures of this department or that. The surveyor was uncooperative, the agent doing the runaround work was negligent, and my wife ended up at the edge of sanity dealing with things. She eventually started peeling off P500 notes, and it went a lot quicker. Her sanity returned.
ugh!
Speaking of property, I think presidential decrees on urban land reform and later the Lina law gave fighting for your rights a new meaning. To avoid estate taxes,many properties are still in the name of dead parents And I heard this during the Corona impeachment hearings. On oposition of the church on any laws, we should not blame church but the ones who are heavily influenced by their opinions,the decision makers and the implementers.As long as the set up is the status quo,we will never be ready for anything,not divorce,not same sex marriage.
This means whoever is the SUCCESSOR of Benigno Aquino gets to chose 11 Supreme Court Justices. I am OK with this because Benigno’s SUCCESSOR will chose the way Benigno did.
But if the NEXT PRESIDENT is not THE SUCCESSOR of Benigno, woe the Filipinos. If Filipinos did not want a SUCCESSOR they should chose the NEXT PRESIDENT with the future of constitution in mind.
Let’s take a look. THE SUCCESSOR will choose justices that will favor the appointer. The NEXT PRESIDENT will choose justices to favor the letter of the law not thru emotions and perceptions.
The Binays are hiding behind and taking advantage of rickety full-of-holes Philippine Constitution. DEFINITELY AM NOT FAVOR OF THE BINAYS.
Looking forward, The Next President should hold constitutional convention to re-invent and re-engineer the Philippine Constiutiton so the likes of The Binays cannot squirm thru.
Gay rights and universal healthcare are not a threat to corporations, so that was a no-brainer.
It was a quid pro quo to pacify progressives and liberals after the US Senate voted to grant President Obama, a corporate stooge, fast-track authority to negotiate the Trans Pacific Partnership agreement, an anti-labor NAFTA on steroids corporate pet project.
I’m afraid I can’t see who is sitting at the card table doing the dealing. The Supreme Court justices? Legislators? Lobbyists? All the president’s men?
I can’t see the Court rulings as connected to congressional tug-of-war or internal wrangling within the Democratic party regarding the trade agreement. I don’t think the justices operate that crassly. I think they actually thought about the matter, themselves, individually. Influenced by whatever political or personal biases they carry. Kennedy’s ruling on the gay marriage case was intensely personal.
It would be much clearer if one can see that corporate tentacles have engulfed pretty much the whole US government institutions – from the Supreme Court to Congress to the White House. Koch-led lobbying gave them the Citizens United corporations are people and money is speech ruling.
It’s a whole new world out there Joe. Corporations are taking over the world. Elected politicians are just but their stooges. Profit is Lord above all else.
And Pope Francis’ Laudato Si be damned.
Elect Bernie Sanders. He agrees with you. Me too, to a large extent. The Supreme Court ruling a few years ago permitting unlimited corporate donations to political groups was also nation-defining.
Bernie Sanders vs. any of the clowns in the Republican ticket is an easier contest. His bigger challenge is to get past in the primary against Clinton who’s got the corporate money and the Wall Street banks.
He’s gaining. It’s rather fascinating to watch. He does not attack opponents. He promotes his ideas. I think there is a certain, ummm, backlash developing against Hillary Clinton exactly for the reasons you cite. Not to mention e-mails gone missing. Indeed, the Republican clown base is wide and deep.
CJ Sereno says the president should respect the checks and balances, the president says that the SC has too much powers.Congress says it alone must have the power of the purse.
Still TROs is to blame for the stand still of anything. Everything has the potential to be unconstitutional.The 1987 constitution was a reaction to the previous one,making amendments to it difficult.
Direct democracy must be allowed,if we see some vital piece of legislation not moving,there must be a mechanism to allow the citizenry to make and amend laws.
11 SC associate justices, man that is huge! What a big responsibility for the incoming president. If he appoints the wrong men of CJ’s Sereno’s age, what a nightmare it will be for our country! We have to endure 18 years of a near majority of justices who will sell justice and TROs left and right.
I had come across a tattered, second hand book – the Pelican Brief. The first chapter dealt with how the SC justices of the US had mangled the constitution with so many rulings which became part of the law of the land by way of jurisprudence.
I shudder to think what will happen to the Philippines if the wrong appointees were made from 2016 to 2022.
Regarding same sex marriage.
I have nothing against members of the LGBT community, in fact, I have gay friends (architects in our company) and they are good people, bubbly without being loud and attention grabbers. I have come to respect them and we are so into swapping stories of life’s travails, joys and accomplishments. I have come to understand their sexual preferences. This architect friends of mine are usually invited in seminars about safe sex practices.
I’m basically against same sex marriage, my church has a number of gay people who are trying to explain to his friends that it is not in God’s design for his creation to engage in same sex relationships, much less marriage. They try to gently explain that we understand them but such relationships are not compatible with God’s plan.
Come to think of it, it is still a long way for the Philippines to go the way of the US SC with regards to the same sex marriage judging by the RH law which was successfully passed by Congress but is still waiting for implementation for reasons that the Church and the Court can only explain.
“…IS IT A LIVING, GROWING DOCUMENT.”
Yes, of course. The great Philippine conundrum is Filipinos think changing the constitution is a mortal sin punishable by the lowest rung in Dante’s hell. In fact, countries change and make amendments to their constitutions all the time. My elucidated frustrations are in this post I wrote. https://notesfrommyphilippineisland.wordpress.com/2015/06/09/how-to-tame-your-dragons/
The 1987 Constitution has included procedures for amendments in its provisions. We never contemplated it to be written in cement like God’s ten commandments handed down thru Moses, indeed, it is a living, growing document.
I am very much in favor of it being amended, I’m not sure why it has to involve so many sections in order for it to be done, but if there’s no limitation, I would like it to be included in every national election, that is, the referendum one amendment at a time.
Why is it that in the US, there is such a thing as the 5th Amendment (hehe, thinking about the witness mumbling that when he does not want to say anything more)
My point is, so that it will not be that time consuming, why can’t we do it that way (one amendment at a time), coinciding with every national election as the need arises. Then, we have 3 years to study, discuss or think about if such amendment is really needed for the country to move forward with the times. The Congress can do the proposal, with public hearing, without haste.
The first amendment needed is one that strikes the provision that there must be five years between amendments. That is nonsense it seems to me. So arbitrary and artificial.
That’s one of the things I sadly do not know of, geez….5 years?…whyness,…oops…that’s a current usage…haha…annexing ness to every utterance…I mean what for, that’s like carrying protectiveness of the constitution a little too far…..it’s not that perfect, anywayz…duh
My good friend once wrote on my blog about how marriage equality is supposed to be protected by the Constitution but contravened by Cory’s Family Code. He thought the provisions in the Family Code can be proven unconstitutional but for SC to rule, an actual controversy– i.e. a gay couple applies for marriage license but gets denied by civil registrar– is required. But behold, during the controversy over Cybercrime and RH bills, the doctrine of “facial challenge” was introduced. The SC can exercise its duty– not just right, take note– of judicial review even when there’s no actual controversy involved. Hence, the same friend who wrote that blog is now challenging the Family Code before the SC. We hope marriage equality will eventually be recognized in these islands soon.
Ah, very good. The court opened the door and your friend walked through it. May he/she prosper.
It’s a he: http://www.rappler.com/nation/94266-same-sex-marriage-petition-supreme-court
Very good. I wish “Petitioner Jesus Nicardo Falcis III” every success. He seems to have the brains and temperament to grasp that the brickbats likely to come his way are from one segment of society. Others are rooting for him, and for a kinder Philippines.