Enforcing rights to

prosperity
By: Artemio V. Panganiban - @inquirerdotnet
Philippine Daily Inquirer / 05:08 AM September 16, 2018

Since my student days to my professional life and throughout my years in the Supreme
Court up to the present, I have always championed “liberty and prosperity under the
rule of law.” Freedom and food, justice and jobs, liberty and prosperity must always be
together: One is useless without the other.

Our fundamental rights to liberty often called political and civil rights, are self-
executory. Unfortunately, however, those of prosperity (commonly referred to as
economic and social rights) are not.

These latter rights are worded in positive language; to be enforceable, they normally
need legislative action. For example, Art. II, Sec. 9 of the Constitution states, “The
State shall promote a just and dynamic social order that will ensure the prosperity… of
the nation and free the people from poverty…”

Using this bare provision alone, a suit to compel the secretary of agriculture (or any
other official) to provide food or shelter or jobs “to free the people from poverty” will
not prosper. An enabling legislation is needed to authorize the court to allow such
action.

In contrast, the rights to liberty are written in negative language such that even without
enabling legislation, courts can enjoin the state and state actors from violating them.

For example, the Bill of Rights provides, “No person shall be deprived of life, liberty or
property without due process of law…” Courts can use this provision directly, without
need of any law, to bar government officials from seizing, possessing or destroying,
without due process, a person’s car or house.
And yet, our economic rights are scattered in elegant language all over the 1987
Constitution — in Art. II (Declaration of Principles and State Policies), Art. III (Bill of
Rights), Art. XIII (Social Justice and Human Rights), Art. XIV (Education, Science and
Technology, Arts, Culture and Sports) and Art. XV (The Family).

Moreover, they are also found in the United Nations Charter, the Universal Declaration
of Human Rights, the International Covenant on Economic, Social and Cultural Rights
and many other treaties entered into by our government.

This dichotomy in treatment could partly be explained by the history of the United
States and the Philippines. In both countries, “Give me liberty or give me death” was
the singular battle cry when their constitutions were crafted.

Fast forward to the present. While we still cherish political and civil rights, our people
are more focused on their economic needs and wants. The recent opinion polls show
that our most pressing concerns relate to the alleviation of poverty, creation of jobs and
reduction of prices.

Amid this dichotomy, Gemy Lito L. Festin, law dean of the Polytechnic University of
the Philippines and one of the holders of the “Chief Justice Panganiban Professorial
Chairs on Liberty and Prosperity,” in a seminal lecture, proposed a doable solution to
elevate economic rights to the level of political and civil rights.

He suggested that the Supreme Court, using its constitutional power “to promulgate
rules concerning the protection and enforcement of constitutional rights,” can import
into our country the “principle of tutelage action” from Columbia to enforce economic
rights in the same manner that the Court transplanted here the Mexican “writ of
amparo” to solve “enforced disappearances and extrajudicial killings.”

He explained that the Court can justify the use of its rule-making power because under
“the interdependence principle, economic rights [are] encompassed within the larger
sphere of the people’s right to life.”

Citing Government of Hong Kong vs Olalia (April 19, 2007), he stressed, “The
Universal Declaration of Human Rights [constitutes] generally accepted principles of
international law [that] form part of the law of the land.” (His full lecture may be
accessed at www.libpros.com, then click “Professorial Chairs.”)

Upon my suggestion, he agreed to bring his thesis to the Philippine Association of Law
Schools so it can be vetted and later on elevated to the Supreme Court for the possible
promulgation of the “writ of prosperity.”

To be continued next Sunday.

Comments to chiefjusticepanganiban@hotmail.com

Read more: https://opinion.inquirer.net/116104/enforcing-rights-

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