Above the law

So the people will know and for the sake of clarity, let me just add further to my article last Friday concerning the furor over the cut of P1.325 billion in the Department of Health (DOH) budget for the implementation of the RH law specifically for the purchase of contraceptives.

As early as May 13, 2015, the Alliance for Family Foundation (Philippines) Inc., ALFI and its president, Atty. Maria Concepcion Noche, Rosie B. Luistro Jose S Sandejas et.al have already filed a petition for Certiorari, Prohibition/Mandamus against Janette L. Garin, then DOH Officer in Charge et.al, “assailing the manner of implementation of Republic Act No. 10354(RH Law) by the responsible officers of the Department of Health( DOH) and FDA (Food and Drug Administration) and all persons acting for and on their behalf as being contrary to the RH Law and the Judgment of the Supreme Court. They also claimed that the law is being carried out without observance of due process and with grave abuse of discretion amounting to lack or excess of jurisdiction.” So they also prayed for the urgent issuance of a Temporary Restraining Order (TRO) and/or writ of preliminary injunction.

Then, on June 17, 2015, the Supreme Court already issued a TRO which enjoined DOH and FDA officials and all persons acting for and in their behalf from:[1] granting any and all pending applications for registration and/or re-certification for reproductive products and supplies including contraceptive drugs and devices; and [2]  procuring, selling, distributing, dispensing or administering, advertising and promoting and/or allowing the procurement, sale distribution, dispensation or administration of reproductive products and supplies particularly the hormonal contraceptive “Implanon” and  “Implanon NXT.” 

Petitioners painstakingly listed and pointed out in detail at least 30 contraceptive drugs and products already registered and certified by the FDA which have been scientifically proven to exhibit particular properties that make them “abortifacient” pursuant to the definition under Section 4 (a) of the RH Law as interpreted by the SC in the case of Imbong vs, Ochoa dated April 8, 2014. In said decision the SC nullified several provisions of the RH law and its Implementing Rules and Regulations dated March 15, 2013 (IRR) particularly that which added the word “primarily” to qualify the definition of “abortifacients.” The SC said that said definition “will pave the way for the approval of the contraceptives which may harm or destroy the life of the unborn from conception in violation of Article II Section 12 of the Constitution.

Up to now however, said RH IRR has not been amended to conform to the SC decision rendered on April 8, 2014. Apparently, the FDA still relied on said IRR in registering or certifying the 30 contraceptive drugs and products listed by petitioners. Hence the SC issued the TRO and required the respondents to comment. The respondents asked for several extensions and were given until September 8, 2015 with no further extensions. But no reply or comment was filed within the deadline fixed by the SC.

Under this background, it is quite clear and obvious that the RH law cannot be implemented yet particularly those involving contraceptives. So there is really no need for an appropriation for its implementation. Any appropriation to this effect is tantamount to giving a budget to a government department that apparently promote sickness and death rather the health and life. It also shows how lightly we regard our Constitution.

And speaking of how lightly we regard our Constitution, what comes to mind is another recent case where the SC upheld the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) entered into by the Executive Department of our Government last June 6, 2014.

Section 25, Article XVIII of the Constitution clearly and categorically provides that after the expiration in 1991 of the Military Bases Agreement (MBA) between the Republic of the Philippines and the United States of America, “foreign military bases, troops or facilities shall not be allowed in the Philippines except under treaty duly concurred in by the Senate, and when the Congress so requires, ratified by a majority of the votes cast in a national referendum held for that purpose and recognized as a treaty by the other contracting State.”

The SC however believes that the EDCA is still constitutional because the President may enter into an executive agreement on foreign military bases, troops, or facilities, since it is not the instrument that allows the presence of foreign military bases, troops, or facilities but merely aims to implement an existing law or treaty.

The existing treaty here is 1951 MDT and the 1998 VFA that have already allowed the entry of US troops and civilian personnel. The SC said that the President may generally enter into executive agreements subject to the limitations defined by the Constitution, in furtherance of a treaty already concurred in by the Senate; that the President can choose to agree to the EDCA either by way of an executive agreement or by treaty. While it compares the EDCA with the 1951 MDT and the 1998 VFA, it claims at the same time it merely implements these treaties.

In his dissenting opinion however, Justice Arturo Brion said that he cannot fully agree with this approach and with its conclusions because: “it overlooks that as Chief Executive the President’s role is not simply to execute the laws. This important function is preceded by the President’s foremost duty to preserve and defend the Constitution, the highest law of the land.

The supremacy of the Constitution means that in the performance of his duties, the President should always be guided and kept in check by the safeguards that were crafted by the framers of the Constitution and ratified by the people. The Constitution prescribes the limitations to the otherwise awesome powers of the Executive who wields the power of the sword and shares in the power of the purse.

Justice Brion also does not agree that “constitutional limitations, such as the need for Senate concurrence in treaties, can be disregarded if they unduly tie the hands of the President. These limitations are democratic safeguards that place the responsibility over national policy beyond the hands of a single official. Their existence is the hallmark of a strong and healthy democracy. In treaty-making, this is how the people participate through their duly-elected Senate or directly when the Congress so requires. When the Constitution so dictates, the President must act through the medium of a treaty and is left with no discretion on the matter. This is the situation under Article XVIII, Section 25 of the Constitution, whose application is currently in dispute, Justice Brion opined.

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