Con-Com 2018 Member
Q: Does the inclusion of the right to food and housing guarantee that every Filipino shall have food and housing?
A: No it does not. No constitution can do that. But the significance of having that in the Bill of Rights is that when food is available either for sale at reasonable cost or distribution, then the people have a demandable and a justiciable right to it. NFA can be compelled by appropriate court writ to sell its stock, whatever its contingency plans. In respect to housing, Congress cannot put this concern in the back-burner as citizens who urgently need it may demand it, either administratively or judicially.
Q: Where lies the difference between first generation (civil and political) rights and socio-economic [second generation] rights?
A: While first generation rights are an all-or-nothing manner (they are either observed or not) and are always immediately demandable and enforceable, socioeconomic rights are, as the draft puts it, “progressively realizable.” But being in the Bill of Rights, this bundle of socioeconomic rights is not merely an ideal or a desired state. It vests in the people an enforceable claim and, on the government, a constitutional obligation to respond to the demand.
Q: What are environmental rights?
A: The inclusion of third (environmental and ecological) generation rights in the Con-Com’s draft is our response to the now almost universally recognized peril to humankind that environmental depredation has brought about. While in the landmark case of Oposa v. Factoran, the Supreme Court had to wrestle with a state policy and read it as self-executory, the draft constitution leaves no doubt that the right to a healthful environment and to a balanced ecology are enforceable and demandable.
Q: We have had the Clean Air Act for some time now—but it has remained largely on paper. Are these provisions not headed towards the same fate?
A: No, definitely not. Notice that there is mention in the draft itself of the writ of kalikasan and of other protective writs. Once more, therefore, what started as a court-forged writ for the protection of environmental claims has received constitutional imprimatur and cannot be undone either the rule-making power of the Supreme Court or the law-making power of Congress. But it should be noted that there is nothing in the Constitution that bars the Supreme Court from rewriting the rule or Congress from passing a law that strengthens the existing writ and other orders like it.
Q: But the trouble with science is that it sometimes has no definite answers, and experts contradict each other. How does the Constitution deal with the possibility of a clash of scientific opinions in respect to the environment?
A: There is in the draft a “cautionary” or “prudential” clause that all doubts are to be resolved in favor of the environment. So, while different scientists and ecologists may debate about whether open incineration contributes to global warming or not, because of the cautionary provision of the draft, regional or federal laws may prohibit open incineration because the presumption should always legally be in favor of the environment.
Q: Aside from injunction, prohibition or the exercise of police power, what recourse do aggrieved persons or communities have?
A: The draft allows them compensatory damages which they may demand against natural or juridical persons, and since the constitution itself grants victims of environmental ruination such reliefs, government may not invoke immunity on the basis of the doctrine of the non-suability of the State, precisely because of an express grant of right by the Constitution in such cases.
Q: One principal objection to the “writ of continuing mandamus” that was promulgated as a rule under the 1987 Constitution was that it not-too-subtly constituted a usurpation by the Supreme Court of the function of the execution of laws. How is this issue to be dealt with in the light of the Draft?
A: To see to the execution and enforcement of its orders is a judicial power—otherwise decisions and judgments of courts would serve only rhetorical and declamatory purposes. The draft affirms the power of the Courts to issue such orders and writs as may be necessary to save the environment and to maintain the balance of a severely threatened ecology. Inherent to all this is the power of the courts to see to it that their orders are not trifled with.
