Except for a few (no more than two or three who need not be identified), the original 50 members of the Constitution Commission of 1986 adhered to the existence of a natural law imprinted in the mind of every human being. The overwhelming majority were not suffering from what has been called the “dictatorship of moral relativism.” It was also far from our minds then to adhere to what is now termed the “wok” culture that has infested many Western societies. Starting with the legitimate condemnation of racial discrimination in Black America, this “wok” culture has now been transformed into a mindset that justifies the moral acceptance of all sorts of evils such as same-sex acts, petty thefts, drug addictions, contempt for parental authority, etc. in the name of non-discrimination. Although it was never brought to a vote, it was assumed that most of us did not believe that truth is determined by the human mind or that it is decided by majority. It was clear to us that there are truths about the nature of human beings and human society that are based on unchanging and absolute truths, regardless of time and space.
As Governor Socrates explains in his article on “Natural-Law Thinking in the Constitution” any philosophy of the legal system must, as a matter of course, define ‘law” according to its ‘ultimate causes.’ To the school of Legal Positivism, law is simply ‘the command of the sovereign’; to the Historical School of Jurisprudence, law is to be ‘found (not made)’ in historical tradition; to the Sociological school, it is simply the ‘balancing of social interests’ or ‘social engineering’’ and to the ‘Realist’ view of Justice Oliver Wendell Holmes, Jr., it is “what judges in fact do.’ In contrast with these views, the natural law thinking which is presupposed by the Philippine Constitution can be defined, as St. Thomas Aquinas did, as “an ordinance of reason for the common good promulgated by one who is charged with the community.”
The Declaration of Principles and the Statement of Policies found in the Philippine Constitution of 1987 cannot be understood without having recourse to the concept of natural law. In formulating the various articles under these headings, it was clear to the majority of us who framed the Philippine Constitution that there exist a set of norms (the natural moral law) higher than the norms of the legal system (human positive law) and to which these latter must conform. Thus, the entire legal system prevailing in any society is just a participation (by society through its political authority) in the natural moral law. The norms of this natural moral law derive from the truths of human nature and are discernible, albeit with some difficulty, by human reason. This fact had been demonstrated centuries ago by the Greek philosophers like Socrates, Plato and Aristotle who by reason alone, independent of any religious belief, arrived at the truths based on natural law. That is why, when we were drafting the articles on the Declaration of Principles or State Policies, it did not occur to anyone of us to present empirical evidence that every human being has the right to life, liberty and happiness; that the family is the basic unit and foundation of society; that the State “shall equally protect the life of the mother and the life of the unborn from conception.”
In fact, I was personally involved in making sure that the very concept of the common good was not defined in the Philippine Constitution the way it was in previous versions of our basic law, following the jurisprudence of the American Constitution up to the 1987 Philippine Constitution which referred to “general welfare”, instead of the common good. The general welfare jurisprudence prevailing till then conceived of the common good as the “greatest good for the greatest number” in society. Through a series of interpolations by a defender of this prevailing jurisprudence, I was able to convince the majority of the Commissioners that this pragmatic definition taken from U.S. jurisprudence could lead in certain occasions to crimes against humanity. The one who interpolated me was a distinguished Muslim lawyer who will remain unnamed. He was very zealous in defending “general welfare” jurisprudence because, according to him, if we changed the definition, numerous lawyers would be disoriented precisely because there was already an existing jurisprudence. I refused to accept this shallow excuse and insisted on a different definition of the common good that does not involve the “greatest good for the greatest number” which allows moral or ethical truth to be determined by majority rule.
Although I admitted that most debatable issues in human discourse may be legitimately determined by majority rule (e.g. form of government, election of political leaders, tax legislation, etc.), there are moral issues that cannot be left to majority voting. At that time (1986), the Italians had a referendum in which the majority voted that it was permissible for a mother to kill the baby in her womb. I asked, the interpolator if that majority vote justified the killing even of one baby. He replied that it was an irrelevant issue. I, then, gave other hypothetical examples illustrating the danger of majority vote on ethical or moral issues. I told the honorable lawyer to imagine that during the time of Hitler’s Germany there was an equivalent of our polling institutions such as the Social Weather Station. Suppose Hitler had a poll conducted asking the Germans if it was legitimate to exterminate the Jews from their midst. Since the majority of the Germans were non-Jews, I asked the question that if the majority actually voted to support Hitler in his persecution of the Jews, would that majority opinion have justified the killing of even one Jew? Since even this hypothetical case did not seem to move him to change his mind about the untenability of the majority vote in some specific moral cases, I decided to go for the jugular. With all the finesse I could gather, I reminded him that he and his fellow Muslims were a small minority in the Philippine population. I reminded him that we, the Christian majority do not always practise what we preach. I then postulated the possibility that we go to a referendum and arrive at the horrible majority opinion that it was about time we remove our Muslim brothers from the face of the earth. That finally convinced him to support my motion to define the common good as a “social order in which every individual is able to attain his or her fullest integral human development: economically, politically, culturally, socially, morally and spiritually.” An alternative definition, taken from the Social Doctrine of the Catholic Church, is “the sum total of social conditions which allow people, either as groups or individuals, to reach their fulfillment more fully and more easily.”
To complete this discourse on the “Sanctity of Life” as protected by the Philippine Constitution, let me quote extensively from a Letter to the Editor of the Inquirer by another legal luminary and President of the Alliance for the Family Foundation Philippines, Inc. Maria Concepcion Noche: “Abortion is illegal under any and all circumstances under the Philippine Constitution and statutes. Abortion is not allowed even when the life of the mother is in danger, and for that matter, even when the life of the unborn is threatened. Under the law, the life of the unborn and the life of the mother shall be equally protected because they are equally valuable…In a conflict situation between the life of the mother, the doctor is professionally and morally obliged to try to save both lives because both are his patients. However, he can act in favor of one (not necessarily the mother) when it is medically impossible to save both, provided that no direct harm is intended to the other. The intentional harm on the life of either is never justified to bring about the “good” effect. If these principles are observed, the loss of the life of either the mother or the unborn that may result is not intentional and, therefore, unavoidable, and the doctor would not be guilty of abortion or murder. This is what you call the double-effect principle which our Supreme Court has recognized.”
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