By Rod Kapunan | Posted on Nov. 03, 2012 at 12:01am | 185 views

An obscure taxpayer might just end up as our modern-day hero for it seems he alone dared to put to a litmus test Section 26, Article II of the Constitution which provides, to quote: “The State shall guarantee equal protection to opportunities to public service, and prohibit political dynasties as may be defined by law.”

Focal to the petition is the universal constitutional principle about the equal protection clause. The petition seeking a definitive prohibition on political dynasties, viz. put to a test whether we truly have an enforceable Constitution or one that is merely meant as a decoration for the world to believe we have. This question has cropped up for it seems those wise guys whom former President Corazon Aquino appointed to draft her new charter maliciously phrased a provision that would end up as a mere decoration, it being unenforceable allegedly for want of an enabling law. For sure, those wise guys who styled themselves as constitutionalists knew that by inserting that seemingly innocuous phrase, they could render the provision something of a dead duck.

Since many of the constitutional commissioners were themselves politicians wanting to recoup their lost glory in the post-Marcos era, they premeditatedly inserted a provision that made us the only country in the world that cannot enforce our own Constitution. Stated otherwise, Section 26, Article II created a new precedent, which is to make the Constitution subservient to the law, and not the law being subservient to the Constitution. So, if those politicians decide not to enact a law defining a political dynasty, which in fact they did, then we have in effect drafted an inoperative Constitution.

Of course, petitioner Louis Biraogo remains undaunted. The possible dismissal of his petition may appear logical; that it cannot be implemented without an implementing law. But did it come to the senses of those drafters that constitutions, upon ratification by the people, are automatically made mandatory? As my good friend, a lawyer, explained, there is no such thing as an unconstitutional provision of the Constitution. He said that only laws can be declared unconstitutional if contrary to the provision or to the spirit of the charter. But never can the Constitution or any of its provisions be declared unconstitutional.

More than that, to dismiss the petition is to uphold the continuing injustice to the Filipino people because political dynasties have made a sham of our electoral system of government. It is also high time to remind the surviving framers of that prosaic provision and the apologists who style themselves as constitutionalists that Section 26, Article II categorically prohibits political dynasties, it being violative of the equal protection clause as it denies our people the equal opportunities to serve the public. That portion of the sentence which states “as may be defined by law” is redundant, not to say useless. Section 26, Article II can operate on its own without out waiting for politicians in Congress to legislate a law implementing it.

As said, the Constitution needs no implementing law. Yes, some laws require implementing rules and regulations. Moreover, they apply only to agencies entrusted to enforce that law, and it should be consistent with what the law provides, while the law itself must be in accordance with or at least provided for in the Constitution. As my friend lawyer added, there is no statutory construction where the Constitution must be in accordance with the law or that it cannot be made to operate until and after a law has been legislated. But then who is that loony politician who would file a bill that would run counter to his interest?

Even if Section 26, Article II did not state the key phrase called “equal protection clause,” nonetheless, its enforcement is peremptory much that it has been used as the most effective legal instrument by all civilized states to secure the equal protection of all the members of society, not only on the opportunity to serve the public, but foremost in the enforcement of basic justice. Without it, the whole thing we have been trumpeting as milestone in our civilization would be nothing more than fiction. It is not easy for the people to decide, as former President Joseph Estrada might think, because politicians like him already enjoy that undue advantage.

To be precise, the “equal protection clause” partakes of a positive command, which is to make sure that it applies to all, while the word “prohibit” is negative command, which means we are forbidden to indulge in that practice. Invariably, the application of the equal protection clause justifies the purpose of the prohibition, it being pernicious to our democratic system of government.

Thus, taken together, Section 26, Article II, is enforceable and the phrase “as may be defined by law” is a surplusage that serves no logical purpose. It is for this why our justices should not allow themselves to become the laughingstock of the world. For them to uphold that silly provision would make us appear as the only country on this planet that have a constitution we cannot enforce. Our justices should take a pro-active stand by giving life to that provision by banning candidates who are related by first degree to the outgoing incumbent public official from running. Our Civil Code has many provisions we can use by analogy to prohibit politicians from institutionalizing their political dominions.

For that matter, we need no specific provision defining what a political dynasty is as if to highlight our own stupidity, notwithstanding that its continuance makes a sham out of and insults our republican form of government. Such a landmark decision Court cannot be said as another of those unwarranted judicial legislation, but is meant to enforce what the Constitution so provides, more so in the wake that our politicians have been dilly-dallying in legislating that law.

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