MELBOURNE, Australia (MindaNews / 1 July)—In the peculiar case of Falcis vs. Civil Registrar General, the Supreme Court explained that, “The basic democratic foundation of our constitutional order necessarily means that all organs of government, and even the People, read the fundamental law and are guided by it.”
The point that needs to be emphasized here is that we, the People, must read the 1987 Constitution and be guided by it. Luckily, the controversy hounding House Bill No. 9349 or “The Divorce Bill” offers an opportunity to demonstrate how this admonition of the Supreme Court can be applied in public life.
Our examination begins with the Super Coalition Against Divorce, a group formed to oppose the passage of the Divorce Bill. They released a statement outlining their arguments against the bill.
Needless to say, the points they raised deserve to be thoroughly discussed by the public. But our focus here is on their contention that the 1987 Constitution prohibits the enactment of a divorce law.
The provision pertinent to our analysis is Article XV, Section 2 which states, “Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.”
Understanding this provision starts with the very old case of J.M. Tuason & Co., Inc. v. Land Tenure Administration, where the Supreme Court provided instruction on how we should read our constitution, to wit:
“We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails.”
Therefore, we cannot go beyond the words in Section 2, at least initially, to determine how it is implemented. The application of the provision must be gleaned from how it is written. If this cannot be done, then we must refer to the rules of constitutional interpretation for proper guidance.
It is hard to see in Section 2 an express prohibition on the enactment of a divorce law. A plain reading of the provision just shows that it is state policy to treat marriage as an “inviolable social institution” and that it must be “protected by the State.”
At this stage, it is worthwhile to refer to some examples of how prohibitions are articulated in the 1987 Constitution:
1. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. (Article III, Section 4)
2. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. (Article III, Section 5)
3. No law impairing the obligation of contracts shall be passed. (Article III, Section 10)
4. No ex post facto law or bill of attainder shall be enacted. (Article III, Section 22)
5. No law granting a title of royalty or nobility shall be enacted. (Article VI, Section 31)
Clearly, when the constitution means to prohibit the enactment of a law, the language used to express the prohibition is as plain and direct as it can get. Section 2 clearly does not belong in this category. Therefore, it cannot be automatically read as a direct prohibition on enacting a divorce law.
In fact, applying creative mental gymnastics, Section 2 can even be used to justify the enactment of a divorce law as a way to protect the sanctity of marriage.
The Philippine Statistics Authority’s 2020 household census revealed that 15% of Filipinos favored common-law partnerships. Moreover, Rappler published a piece in November last year reporting that “a significant portion of the younger generation would rather not marry than to have a bad marriage.”
Ostensibly, our society has come to a point that marriage is losing its appeal as a long term and stable proposition for couples. It is hard to imagine how the state can intervene to stop this trend. Neither the government nor churches possess the power to force couples to marry. It can certainly be argued that in this instance, the state is failing to uphold Section 2.
On the other hand, making divorce a legal option could nudge common-law couples to give marriage another look. By providing a way to end a failed marriage, de facto partners who have become disillusioned with the institution of marriage could be persuaded to reconsider.
In a scenario where couples are more open to the idea of marriage, Section 2 has arguably a much better chance of becoming relevant to society in general. The government, and churches too, can expect more success with efforts to promote the value of marriage.
It must be noted though, our examination may end with the conclusion that the 1987 Constitution does not prohibit the enactment of a divorce law, but this does not mean the Divorce Bill should be enacted. A thorough discourse on the indictments against it posed by the Super Coalition Against Divorce is still warranted.
(MindaViews is the opinion section of MindaNews. Michael Henry Yusingco, LL.M is a law lecturer, policy analyst and constitutionalist.)