MANILA - Despite the many ills that Philippine society has surpassed in the last few centuries, the battle continues for real democracy. For retired Chief Justice Reynato S. Puno, he calls the battle a “revolution,” and he has a “weapon” waiting to be unsheathed.
Known for pushing for an activist court back when he was still the chief magistrate, Puno continues this activism as a writer, analyst, preacher and mentor to the young.
As University of the Philippines College of Law Dean Danilo Concepcion puts it: “As a magistrate, Chief Justice Puno unapologetically used the written word as a weapon to give libertarian ideals.”
Under Puno's leadership, the Supreme Court became pro-active in using its Constitutionally-mandated powers to promote and guard a person’s life, liberty, security. The writs of amparo, habeas data and kalikasan were adopted and sought by citizens and groups.
This is precisely why the UP College of Law has published the book “Equal Dignity and Respect: The Substance of Equal Protection and Social Justice” written by Puno, the premiere law school’s first Eminent Resident Scholar.
In the book, Puno shares his thoughts on the centuries-old problem of inequality in the country. “The waiting time to uphold substantive equality is grinding to a nil. The clarion call to distill from our Constitution the grounding and approach for substantive equality legislation and adjudication can no longer fall on deaf ears,” posits Puno, who was once the editor-in-chief of the Philippine Collegian.
The haves and the have-nots
Equality is a concept as complex as how one manages to get food on the table. The book notes that inequality does not merely show the possession of one by a person and then two by another. Puno admits that the concept is difficult to grasp, especially in the Philippines, which has seen the bonds of discrimination from the Spanish era to the present.
Puno says that the 1987 Constitution, a response to a toppled dictatorship, provides so many answers on how the Philippines can solve inequality. Still, he says that despite the “transformative Constitution with social justice at its heart, Filipinos continue to witness yawning gaps between the haves and the have-nots…the handful who hold the wealth of our country and the majority who languish in poverty at the margins of Philippine society.”
Despite the Equal Protection Clause enshrined in the charter, the richest one percent of society in 2009 earned as much of the total incomes of 30% of the poor. This hardly changed from 1985 – before the ratification of the newest Constitution – when the richest one percent earned as much as the combined income of the poorest 32%.
Puno says the 1987 Constitution was transformative in the sense that it emphasizes “the centrality of attaining social justice.” Phrases such as “equal protection” and “social justice” have long been enshrined in the previous constitutions, but the latest one “transformed the equal protection clause into an equality guarantee that facilitates the enactment of social legislation.”
Puno emphasizes the word “facilitates,” which means that Congress is mandated to give “the highest priority” to laws that will uphold equality among the populace.
The Equal Protection Clause came in the form of the Bill of Rights in Article III, Section 1 of the 1987 Constitution: “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”
Puno notes that the crafters of the Constitution were so precise in their words so as not to leave any stone unturned. For example, he cites the exchange between then constitutional commissioners Hilario Davide Jr. and Adolfo Azcuna with regard to the “equality of women and men.”
During the deliberations of the Constitutional Commission, Azcuna managed to retain the words “fundamental equality before the law of women and men” even if Davide pointed out the redundancy vis-à-vis a provision on the Bill of Rights that “nor shall any person be denied the equal protection of the laws.” Azcuna insisted on the words “equality of women and men” to emphasize that women will not be second fiddle in nation-building.
Puno says the clear statements of the commissioners in highlighting social justice gave rise to several landmark bills and Supreme Court jurisprudence.
Puno adds, however, that the SC eventually decided cases via a “pigeonhole approach” that became an equal protection challenge. He says the rigidity of such an approach “results in a wide permutation of equal protection challenges, poses several problems and difficulties in adjudication.”
Justice to one may affect the rights of another, which is why a pigeonhole approach or the designation of jurisprudence to all cases about inequality won't work.
He states, as example: “If a classification accords preferential treatment to persons with disability, but it prejudices women, which level of scrutiny must the court employ?” Or, an inequality claim by a woman could result into a “reverse discrimination” against men.
He says this is because the Equal Protection Clause in the Bill of Rights - despite highlighting social justice for all, is still “disjoined from the social justice imperative of the fundamental law.”
The last chapters of Puno’s book focuses on the “weapon” to attaining real democracy: The Expanded Equal Protection Clause.
He says the challenges in ensuring equal protection lies “in large part” on borrowing United States jurisprudence. The Philippines relies heavily on the Fourteenth Amendment of the US Constitution, an anti-discrimination principle. He says the latter, a solution to end the centuries-long slavery in the US, forbids government from discriminating against any person or group of persons.
Puno notes, however, that the American approach “does not coincide with the Philippine constitutional ideology and imperative to uphold social justice…” To resolve the impasse, Puno turns to Canadian jurisprudence that is not normally referred to by justices.
In the last few chapters of the book, Puno talks about the importance of “human dignity." He suggests a methodology that is anchored on the Canadian example, but which can be effective especially in a society like the Philippines.
The concept is simple, which, Puno says, will not lead to the scrapping of the original Equal Protection Clause. It is the reintroduction of the concept of human dignity.
Quoting then commissioner Joaquin Bernas, Puno says that equality is “not meant to be a mathematical equality. What is meant when there is an appeal to equality is that everyone should have at least the minimum requirement to live with dignity.”
Puno explains that his Expanded Equal Protection Clause protects human dignity by “preventing the imposition, perpetuation, and aggravation ‘of disadvantage, stereotyping or political, economic, cultural or social prejudice.”
Equality is a complex word that can still lead to the discrimination of some.
Puno urges the government and the courts to further develop the concept of human dignity. “While dignity cannot be taken away as it is inherent, it can be denied through actions that convey the message that the victim is of lesser worth.”
In laying down the methodology that can be followed by the courts, Puno hopes that Filipinos waiting on the sidelines can already “[move] closer to the starting line so that all can begin life’s race equally.”
*Retired Chief Justice Reynato S. Puno’s book “Equal Dignity and Respect: The Substance of Equal Protection and Social Justice” will be formally launched at 9:30 a.m. on Friday, January 11, 2013, at the Malcolm Theatre, UP College of Law. The first editions of the book will also be sold at the college.