Double negative explained: Not unconstitutional vs constitutional

by Ira Pedrasa,

Posted at Apr 09 2014 04:27 PM | Updated as of Apr 10 2014 01:09 AM

MANILA - There’s a reason why the Supreme Court uses the double negative “not unconstitutional” in describing the validity of a certain law, instead of just using the word "constitutional."

Lawyer Romulo Macalintal explained the use of a double negative means there is presumption of constitutionality of the law that is being contested.  

On the Reproductive Health (RH) law, for example, the high court “assumed” its constitutionality.

SC spokesman Theodore Te earlier explained that using “not unconstitutional” is the “correct way of referring to a law that has not been declared unconstitutional. Laws are presumed to be constitutional and the burden is on the challenger to show that it is unconstitutional.”

When the challenger fails, the subject is then declared “not unconstitutional.” 

What does the “not unconstitutional” declaration mean therefore for the RH Law?

For Macalintal, an anti-RH Law advocate, the real victors are those who lobbied against the law. 

While the high court was merely assuming the “constitutionality” of the entire law, it was emphatic in declaring that seven provisions are “unconstitutional.”

He said it was not the validity of the entire law that was put to question before the high court.

“The substantive issues as defined by the SC in its guidelines before the oral arguments and as enumerated by the Solicitor General were limited to whether or not certain provisions of the law violated the right to life and health; freedom of religion and speech; right to protection against hazardous products; rights of parents in caring for their children; and right of families to participate in family planning,” he said.

Freedom of religion

Macalintal noted that the high court agreed on all these points.

“On the right to life and health protection against hazardous products, the telling blow against the RH Law is when the SC ruled that the word ‘abortifacient’ does not only include contraceptives that ‘primarily induce abortion’ which means that all contraceptives that have abortion as ‘secondary effect’ will be illegal,” he said.

This means that if the Department of Health purchases contraceptives for end-users, it has to prove that these do not induce abortion.

In effect, the anti-RH groups can always question the purchase especially if they have evidence that these are abortifacients, he

On freedom of religion and speech, the “unconstitutional” declaration of the high court on several provisions of sections 7 and 23 was very clear, he said.

It is the belief of the SC that the government can’t just force people, even health workers, to do something against their will, he said.

“The law can’t penalize any health care provider who fails or refuses to disseminate information nor any public officer, which includes local elective officials who refuse or fail to support the RH program or shall do any act that hinders its full implementation regardless of their religious beliefs,” he said.

He noted even medical schools owned by religious groups can’t be compelled to provide family planning methods.

On the rights of parents to care for their children, Macalintal explained the RH Law can’t penalize a health care provider if he or she requires parental consent from the minor.

A minor can’t just also access RH methods sans written consent from their parents, he added.

In other words, “what the decision conveys is the recognition of the constitutional right of Congress to enact a law, but that does not automatically guarantee that all its provisions are constitutional until it is so declared by the SC when their constitutionality is questioned.”