Justiciability of Socio-Economic Rights: Comparative Powers, Roles and Practices in the Philippines and South Africa

Abstract:     
This paper proposes a theory of justiciability for socio-economic rights specified in Art. II, secs. 8-24 and Art. XIII - XV of the 1987 Philippine Constitution. While these provisions had been previously declared as the “heart of the new [1987] Charter” (ARIS (Phil) Inc. v. National Labor Relations Commission et al., G.R. No. 90501, August 5, 1991), subsequent jurisprudence of the Philippine Supreme Court has tended to treat these constitutional norms as little more than aspirational, non-self-executing, and ultimately mere hortatory guidelines for the Legislative and Executive Branches. (Basco et al. v. Philippine Amusements and Gaming Corporation, G.R. No. 91649, May 14, 1991.)

A closer look at the formative history of the 1987 Philippine Constitution exposes structural considerations that militate against automatic non-justiciability of socio-economic rights. Article VIII, Section 1 of the postcolonial and post-dictatorship 1987 Constitution uniquely expanded the Philippine Supreme Court’s power of judicial review beyond the traditional justiciability threshold (“the duty of courts of justice to settle actual controversies which are legally demandable and enforceable”), towards wider review of government discretion (“to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”) A corollary expansion of the Court’s rule-making powers accompanied the enlargement of the sphere of judicial review. Article VIII, Sec. 5(5) of the 1987 Constitution grants the Court the power to “promulgate rules concerning...the enforcement of constitutional rights.”

From the standpoint of judicial power, the Philippine Supreme Court has clearly been vested with constitutional authority to determine its own parameters of justiciability with respect to constitutionally-textualized socio-economic rights. The Court’s own practice of relaxing justiciability constraints in cases of “threshold constitutional importance” affirms the malleability of justiciability doctrine beyond the frontiers of the six-pronged test in Baker v. Carr. This deliberate expansion of both the judicial review and rule-making powers of the Philippine Supreme Court typifies the active re-direction of the Court’s role, away from the passivity of the standard political question doctrine that had predominated earlier constitutional eras under the 1973 and 1935 Constitutions.

Moreover, the drafting history of the 1987 Constitution belies any intent to diminish the constitutional importance of socio-economic rights, as opposed to civil and political rights. The 1986 Constitutional Commission repeatedly referred to international legal standards on socio-economic rights (particularly the International Covenant on Economic, Social, and Cultural Rights) to introduce specific constitutional prescriptions, and not mere normative aspirations. This places greater responsibility on Philippine judges to carefully ascertain if justiciability is constitutionally-intended, or, conversely, if justiciability had been purposely ruled out by the framers of the 1987 Constitution.

Justiciability can be reconceptualised with sensitivity towards the Court’s use and understanding of its powers, roles, and practices under the 1987 Constitution. To this end, the jurisprudence of the South African Constitutional Court on socio-economic rights provides rich comparative insights into judicial methodology and interpretation. Cognizant of its historic and constitutional role, the South African Constitutional Court has long transcended the usual objections of ‘enforceability’ and ‘lack of government resources’ to adjudicate cases involving governmental distributive programs that impact on socio-economic rights. Exemplar cases such as Government of Republic of South Africa v. Grootboom, Minister of Health v. Treatment Action Campaign, and Thiagraj Soobramoney v. Minister of Health, among others, show that socio-economic rights and governmental duties can indeed be calibrated in modern constitutional adjudication.

Drawing from comparative South African scholarship, this paper proposes a triangulated theory (“Purpose-Role-Norm”) to assist the Philippine Supreme Court in determining the justiciability of socio-economic rights in the 1987 Constitution. First, the Court could look to the purpose of the justiciability constraint, and whether maintaining the traditionally high justiciability threshold set by Baker v. Carr is consistent with this purpose. This framework deliberately espouses Professor Jonathan A. Siegel’s methodology in his work, “A Theory of Justiciability,” 86 Tex. L. Rev. 73 [November 2007.]

Second, the Court should also look to their constitutional role, and whether, under their expanded judicial review and rule-making powers, the Court can appropriately adjudicate the case or controversy involving socio-economic rights. This analytical prong should be examined along with the third aspect to this theory, which is to look at the norm as constitutionally-formulated. From a considered scrutiny of both constitutional text and its corresponding drafting history, the Court can also better determine whether the Constitutional provision contemplates an actionable right, as opposed to a non-self-executing norm requiring Congressional implementation.

The foregoing triangulated theory has not been absent or unattempted in jurisprudential methodology. However, much of the difficulty with determining the propriety of the Court’s adjudication of socio-economic provisions of the 1987 Constitution lies with eliciting methodological consistency, and how the Court could provide for the predictability and stability of constitutional outcomes. The documented experience of the South African Constitutional Court has much to impart on its consciousness of the Court’s role and powers under the South African Charter. The South African Constitutional Court also valuably demonstrates a decided predisposition to adjudicate socio-economic rights notwithstanding usual governmental resource constraints. At the very least, this proposed triangulated theory aspires to prevent offhand dismissals of Philippine constitutional cases on socio-economic rights, by inducing the Philippine Supreme Court to periodically and systematically revisit its constitutional powers, roles, and practices.

Keywords: justiciability, socio-economic rights, Philippine Supreme Court, South Africa Constitutional Court

Accepted Paper Series