POLITICAL scientists worth their mettle, and freshmen undergraduate students taking up political science under their tutelage, will tell you that constitutions are not designed as open licenses for governments to freely exercise their unlimited powers over citizens. In fact, they define boundaries that limit those powers. Our 1987 Constitution begins with the phrase, “We, the sovereign Filipino people” to clearly declare that the power emanates from citizens and not from government.
What we have is a limited and bounded government. It is the people who are bestowed rights, even as the state is given the duty to protect those rights. This is the essence of our social contract. Modern states are creations of the liberal theory of democracy, and are therefore grounded on the protection not only of individual but also of collective rights. Citizens, in return, have the duty to obey laws and to pay their taxes. But in fact, it is well within the right of citizens to mobilize against unjust laws and tyrannical rulers. Only Thomas Hobbes demanded a total surrender of rights by citizens to a benevolent sovereign, simply because he had this rather naïve assumption that the power of the sovereign rests on the vigor of its citizens, and it would be to their disadvantage if the latter are rendered impotent under a tyranny.
It was John Locke who asserted that citizens surrender their rights to a collective, which will constitute the government that would protect those rights. For Locke, the citizens retain the right to depose or replace that collective should it fail to protect their rights. If one extends Locke’s theory, it then privileges the right to dissent, even the right to rebel against a despotic and tyrannical government.
Jean Jacques Rousseau advanced a theory where political communities end up having a social contract to prevent the elites from appropriating the state to serve their interests. Rousseau based his theory on what he considered to be the natural tendency of the state to become servants of elite interests. Hence, it is in this context that the social contract is no longer just an embodiment of the rights of citizens but also of the limits to the powers of the state to ensure that it will serve those rights.
It is this classical theory of the state that many of our elected politicians seem to forget. It shows in the many bills they propose to be enacted into law.
Take the case of the bill being proposed by Manila Sixth District Rep. Bienvenido “Benny” Abante Jr., where he would make the teaching of the bible as a mandatory requirement in public schools. One of the fundamental rights given to individual citizens is their freedom to have, or by implication, not to have, a religion. On the other hand, one of the fundamental restrictions on the state is to deny it the power to favor or discriminate against any religion. Both of these will be seriously violated by Abante’s bill. Making bible study in schools a mandatory requirement would force students to take these classes, and be graded for it, which undermine not only their right to freely exercise their faith other than Christianity, but would even amount to some kind of a religious test that should be passed to earn the credentials to graduate. The latter is a patent breach of the limitations imposed by the Constitution not only on the separation of church and state, but on the bar against the establishment, or preferred treatment, of a particular religion.
We see supporters of Abante’s bill argue that the constitutional provision to respect the right to freely exercise one’s faith is also assaulted by the anti-Sogie discrimination bill, as it would force Catholic schools to accept lifestyles that they deem sinful. However, it should be pointed out that the intention of the Sogie bill — Sexual Orientation and Gender Identity and Expression Equality bill —is to ensure that the state will enable the rights of citizens against being discriminated against, regardless of their religion. The constitutionality of the Sogie bill can only be assailed if it forces religious schools, convents and seminaries — when they indoctrinate their believers as they prepare towards their clerical vocations — to integrate in their curriculum and rites anything contrary to their doctrines. But the state, exercising its regulatory powers over higher and primary educational institutions, is duty bound to ensure that religion will not be used as an excuse by Catholic and denominational schools to discriminate against the LGBTQIA+ — lesbian, gay, bisexual, transgender, queer, intersex, asexual and all other sexualities, sexes and genders — when these institutions are engaged in non-doctrinal educational services.
The bottom line is that the state cannot pass legislation to curtail the rights of people. And if indeed there are provisions in the anti-Sogie bill that would amount to this, then such should be likewise excised from the bill. And the most compelling basis is when the act that is proposed to be regulated undermines the common good and the collective enjoyment of a right. This is precisely why the proposal of Sen. Sherwin Gatchalian to ban the sale of cars to people without an assured parking space would be in order, for it is designed to uphold the right of citizens to public roads free of congestion from parked private cars. And this is also why the proposal of Rizal Second District Rep. Fidel Nograles to intrude into the financial arrangements of couples may have a weaker constitutional grounding, since it is not entirely clear whether the financial autonomy of individuals is a constitutionally guaranteed right.
The proposal of Iligan City Rep. Frederick Siao to require public servants to commute on Mondays may also be in order. This would amount to the state limiting further its entitlements, by imposing on public officials additional requirements, which would not otherwise be imposed on ordinary citizens. After all, only public officials are required to file their SALNs — Statements of Assets, Liabilities and Net worth, divest from their private financial interests and undergo lifestyle checks.
https://www.manilatimes.net/2019/10/17/opinion/columnists/unconstitutional-proposals/633160/
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