Not unconstitutional

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Wednesday, April 9, 2014


FOR the second straight time, the Supreme Court has decided a controversial law in a way that one would think was intended to appease both sides.

Two months ago, the High Court upheld the constitutionality of Republic Act 10175, otherwise known as the Cybercrime Prevention Act of 2012, but struck down the provisions on online libel and on the automatic take-down power of the State through the Secretary of Justice.

Then the other day, from their summer session in Baguio, the justices announced that they have arrived at a decision in the case of Republic Act No. 10354, or the Responsible Parenthood and Reproductive Health Act of 2012. As in the case of RA 10175, the High Tribunal said that RA 10354 was “not unconstitutional,” except for eight of its provisions.

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If the Court’s intention was to make both the anti and the pro RH groups happy, then it succeeded because both camps claimed victory in the decision.

Of course, that was never the Court’s intention. Not in RA in 10175 or in RA 10354.

As every law school freshman knows, the Court is authorized to be picky when addressing a constitutional issue regarding a statute. They can declare certain sections, even whole chapters of a law unconstitutional and still hold that that law remains valid, minus the offending provisions, the only limitation being that the upheld parts can stand on their own.

Congress recognizes this practice by inserting a Separability Clause in all, or at least most of the laws that they pass. For example, Section 29 of the Cybercrime Prevention Act of 2012 and Section 28 of the Responsible Parenthood and Reproductive Health Act of 2012 are almost identically worded: “If any part of provision of this Act is held invalid or unconstitutional, the other provisions not affected thereby shall remain in force and effect.”

Not that the Supreme Court needs any congressional instruction on separating the chaff from the grain, so to speak, when exercising its inherent power of review. The philosophy, I think, is anchored on the more fundamental principle of separation of powers that says that each branch of the government is supreme within its own sphere.

It is not only wise but necessary in order to keep this balance of power for each branch to obey and preserve, as far as practicable, the act or decision of the other.

Thus, if the legislative and the executive branches decide, as they have in fact decided, on a reproductive health law, for example, the Supreme Court is called upon to give that law the benefit of a presumption of constitutionality and to save that law if it can be saved. Whoever claims otherwise has the burden of proving it and if he fails, the use of the double negative is appropriate in describing the court’s declaration on the law’s status: it is not unconstitutional.

***

After devoting part of two columns on the issue, I promised not to write on the issue of the missing trees at the center island of the under-repair Serging Osmeña Ave. anymore. But some people, for some strange reason, do not seem to want the matter laid to rest.

Add “incomprehensible” to “strange” because I cannot understand, for the life of me, why City Hall is guarding the video footage on the cutting of the trees as zealously as the Americans guard the gold stored in Fort Knox.

Councilor Dave Tumulak, who impressed me as a decent and reasonable person when I met a week ago and who has custody of the CCTV recording of the incident, said only a Court order can compel him to share the video with anyone. Holy cow, haven’t they heard of transparency in government?

What is really there in the video? Who is City Hall trying to protect?

(frank.otherside@yahoo.com)

Published in the Sun.Star Cebu newspaper on April 10, 2014.

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