Revisiting the Bill of Rights

It was the particular article of the Constitution alarmists feared would be trimmed, curtailed, and shorn—the Bill of Rights, and that was one reason they have used since against any attempt to rewrite the Constitution.  But there is one hermeneutic principle that tends to be occluded when too much emphasis is placed on separation of powers, and that is that it should not be assumed that the three branches of government share disparate values and irreconcilable differences.  So too, it is wrong to assume that the members of the Consultative Committee sit as “instructed delegates” who write as they are told.  I have sat through most of the sessions of the Committee and have actively participated in its debates—and not once have we received any instruction on what to write.  To be sure, we were given instructions about when the draft was needed, but nothing more beyond that.

I am happy to report that at the sub-committee level, our draft has more and stronger provisions.  I will point out only some of them.  Initially, as proponent, I wanted all the human rights covenants and treaties to which the Philippines was a party to become part of the Bill of Rights by incorporation.  There was some hesitation about that on the part of other members, as they thought it would unduly bind the hands of future presidents in respect to the conduct of foreign affairs, and also because the concept of human rights is a dynamically evolving concept.  We settled for incorporating generally accepted principles of human rights law.  Immediately, of course, it will be pointed out that there is already an incorporation clause in Article II (that has been retained).  But we have also put in a provision in draft Article VI (on the Legislature) that makes it necessary for the President to obtain a majority vote of the Senate before he denounces a treaty or withdraws the Federal Republic from membership.  That way, unilateral acts of withdrawal from human rights treaty obligations by the President will no longer be possible.  The consent of the Senate will be necessary.

Traditionally, the Bill of Rights was thought to enumerate rights that the citizen could demand against the State: a charter of protective injunctions against the heavy hand of the State.  So, People v. Marti was one classic case that enunciated the traditional view that the exclusionary rules would not apply against the acts of private individuals.  The draft has modified that, drawing inspiration from the Constitution of India.  While it remains the prime duty of the State to safeguard human rights, it is as much a matter of State responsibility when it leaves individuals free to violate the rights of others.  So the guarantees of the draft Bill of Rights can also be invoked against the intrusive actions of non-state agents.

There is now a distinct section on the right to privacy.  Where, in the past, it was only a “penumbral right,” it has been taken out of the shadows and enshrined as a distinct right.  It is a constitutionalization of the policy behind the Data Privacy Protection Act but it goes beyond that—and includes protection against sleuthing and all forms of intrusion into privacy.  The Committee was unanimously agreed, however, that it could not be invoked in the same way that the US Supreme Court used it in Roe v. Wade to include the right of a woman to decide on procuring an abortion.  Under the rewritten Constitution, we have been adamant about protecting life from the moment of conception.  The more specific right against searches and seizures has been broadened to include intrusive surveillance that may not include physical ingress into residence, office or enclosed spaces.  Electronic forms of surveillance can presently allow for searches more violative of privacy than physical searches could in the past—and when this is the case, only a court-issued search warrant can legitimize surveillance of this nature.

Quite interestingly, aside from civil and political rights, there are two other subsets in the Bill of Rights: economic and cultural rights (including the rights of indigenous peoples) and environmental and ecological rights.  While critics will be quick to complain that this is going to far, one can never go too far in the matter of protecting rights that have all too frequently been consigned to secondary importance.  The point to the inclusion of social and economic rights as well as environmental and ecological rights was to make sure, as Chief Justice Hilario Davide Jr. articulated in groundbreaking fashion in Oposa v. Factoran, that these rights were justiciable and demandable—although the State’s response to demands for their enforcement might be calibrated differently from the enforcement of civil and political rights.

People should have nothing to fear, and everything to be excited about, in respect to a Bill of Rights that took off from the 1987 Constitution, remained true to its spirit, expanded rights that needed recognition and allowed from ampler claims and more meaningful vindication of transgressions.

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