Equality of rights to liberty and prosperity

First published by the Philippine Daily Inquirer / 05:12 AM April 01, 2018

As a way of commemorating Christian resurrection and liberation from earthly afflictions today, Easter Sunday, let me turn to the award-winning treatise of Raphael Lorenzo Pangalangan pleading for equal legal treatment of the rights to prosperity with those of liberty.

Scholarly treatise. Written in elegant, authoritative and scholarly legalese, the 47-page treatise, fortified by 248 footnotes, won the first place (P300,000 cash plus a plaque of recognition) in the first “Dissertation Writing Contest” sponsored by the Foundation for Liberty and Prosperity (FLP), with funding from Ayala Corp. and the cooperation of the Philippine Association of Law Schools. It may be accessed at www.libpros.com but I will try to simplify it.

To begin with, FLP champions the philosophy of liberty and prosperity under the rule of law. It believes that these twin beacons must always go together; one is useless without the other. They must be equally cherished and protected as essentials of life and wellbeing. Indeed, the choice is no longer “Give me liberty or give me death”; it is enjoying both liberty and life in equal measure.

Pangalangan observed, however, that traditional legal concepts prioritize liberty over prosperity. While fundamental liberties are recognized as self-executing rights enforceable by judicial action without need of further legislation, prosperity is appreciated merely as an aspiration rather than as a right; it requires congressional acts before it could find sanctuary in the courts.

He wrote, “The intent of the drafters of the 1987 Constitution is clear: social and economic rights — as embodied in the Declaration of Principles and State Policies, as well as in the Social Justice provisions of the basic law — are not one of the traditional rights like those enshrined in the Bill of Rights, and are mere commands to the state” needing action by Congress.

Dichotomy of rights. Consequently, our Supreme Court (echoing that of the United States) adheres to the “state action doctrine” which generally reserves the application of the Bill of Rights to the public, but not to the private, sphere. Only the state — to the exclusion of private entities and individuals — is obligated to observe and can be held liable for violating basic rights.

This dichotomy is justified by the traditional theory that civil and political liberties (like freedom from fear, freedom of speech, of assembly, of religion, and freedom to participate in elections and in the formation of public opinion), are characterized as natural rights while social and economic rights — the anchors of prosperity — (like freedom from want, from afflictions, and the free pursuit of economic activities, competition and vocations), have been shunned as mere inventions requiring affirmative state action.

The former are deemed “first generation rights” while the latter, “second generation rights,” are mere inventions of political will rather than essentials sourced from our very humanity.

Equality of rights. However, citing a formidable bibliography of cases both here and abroad, authoritative publications, journal articles and lectures, and over 20 international covenants, including seven core human rights treaties that the Philippines ratified and constitutionally adopted as part of the law of the land, Pangalangan passionately posits that prosperity rights, like civil and political rights, should now be deemed self-executing rights enforceable by the courts without need of enabling legislation.

Moreover, repeatedly quoting from Tañada vs Angara (May 2, 1997) and my separate opinion in Serrano vs NLRC (Jan. 27, 2000), he vigorously argues that with the “advent of liberalization, deregulation and privatization … even private individuals [are] sources of abuses and threats to human rights and liberties.” Thus, they should be accountable in the observance of rights to liberty and prosperity.

He concludes: “Liberty and prosperity forward common sense in the pursuit of uncommon justice. [They recognize] how civil and political rights are tightly intertwined with social and economic relations — how freedom from fear necessitates freedom from want.”