What goaded me to write this was a brief but characteristically cerebral text of Justice Adolf Azcuna to retired Chief Justice Art Panganiban on the Bill of Rights in an amended or a revised Constitution. But first things first.
A Constitution without a Bill of Rights is possible. The example that immediately comes to mind is the American Constitution. Almost all that is enshrined in the Philippine Bill of Rights will be found in “Amendments” to the US Constitution: thus the First Amendment, taking the Fifth, etc. These amendments were necessary appendages to the Constitution that did not have them to get the states to accept the Federal Constitution.
Another example is the Australian Constitution. The subcontinent “down under” is far from being on the list of notorious human rights violators-—but its Constitution has no Bill of Rights. When the Supreme Court and the Philippine Judicial Academy sent a team to study Australian commercial and intellectual property law, it was my good fortune to be chosen to be part of the group headed by the revered civil law guru of the country, Justice Jose Vitug. I was surprised when the justices of the Federal Courts of Australia—our mentors —told us that the Australian Constitution contained no bill of rights. And when I asked the obvious question: How then are the rights of citizens guaranteed? One justice pointed to himself and his colleagues and said: “We are the Bill of Rights.”
Obviously, the United Kingdom, that has no written constitution, has no Bill of Rights either but hardly have Brits complained that their is a country that transgresses their fundamental rights.
In one case involving the interim period between Cory Aquino’s assumption to power (that was immediately followed by the demise of the 1973 Constitution) and the promulgation of the interim Freedom Constitution, the residence of Major General Josephus Ramas was searched and incriminating evidence seized, sans warrant. When the State later sought to introduce the seized evidence against the accused, the latter interposed the guarantee of their right to privacy as enshrined in the exclusionary rules. The government argued that the rule was effete as no constitution was in place. The Supreme Court ruled that even if no Constitution was in place, and therefore no Bill of Rights guaranteed the rights invoked, the Philippines remained a party to the international conventions and covenants protecting fundamental rights and so remained bound to their observance. It is, after all, a fundamental precept of international law that never does domestic law constitute a valid defense for non-compliance with international law obligations, whether these be of conventional or customary provenance.
Chief Justice Reynato Puno, by a separate opinion, took the argument farther: Even without a constitution, he argued, there are some rights that need no law to be recognized—the rights that reason discerns to be inherent in human personhood.
So, while a litany of rights may very well be omitted from the Constitution—to no advantage, really and with clearly no benefit to such an omission—it is not possible for the Philippines to thereby consign human rights to oblivion or to leave it to the whim of government to determine which rights it recognizes and which claims to rights it rejects. Human rights have a universal nature. In fact, ever since the UN Charter, human rights have ceased to be a domestic issue. They are a concern of international law and are guaranteed by the community of nations.
One of the elements of statehood is effective government—and one wonders how effective a government can be, over an extended period, that systematically, arrantly and contumaciously rides roughshod over universally recognized rights, such as the right to due process. Rawls was not too far off the point when, reflecting on what people hypothetically blinded to their own prejudices and individual inclinations, would choose to be the principles by which society is organized, he arrived at the conclusion that people would like the widest possible range of liberties for each that is compatible with a similar range of liberties for others. And that is not possible without a recognition of rights. A government that nonchalantly sets aside this fundamental rule of distributive justice courts the rejection and the ire of the people.
Another element of statehood articulated by the Montevideo Convention on the Rights and Obligations of States is the capacity of a State for foreign relations. And a State that flaunts its disregard for basic rights is one that endangers its capacity for foreign relations. The community of nations has, after all, been rather consistent in its refusal to deal with rogues—and rightly so!
rannie_aquino@csu.edu.ph
rannie_aquino@sanbeda.edu.ph
rannie_aquino@outlook.com