Inside the belly of the beast
FRANCISCO S. TATAD
WE did not need the Spanish philosopher George Santayana to remind us that those who forget their past are doomed to repeat it. Indeed, we could have avoided the ongoing confusion over President Duterte’s draft constitution for an inverted “Federal Republic of the Philippines” had we been a little more attentive to the lessons of the 1970s under President Ferdinand Marcos. With sufficient foresight, we could have learned something worthwhile from his highly controversial constitutional “experiment.”
On September 21, 1972, Marcos proclaimed martial law to defeat Joma Sison’s and Commander Bernabe Buscayno’s communist insurgency. On January 17, 1973, he promulgated a new Constitution crafted by a consitutional convention presided over by his two immediate predecessors, former President Carlos P. Garcia, who died during the convention, and former President Diosdado Macapagal whom he had defeated in his reelection bid in 1965. The new Constitution sought to create an unorthodox parliamentary government in which power would reside in the President/Prime Minister rather than in Parliament as is the standard practice.
The Marcos amendments
On September 22, 1976, Marcos proposed nine constitutional amendments. These would make him both President and Prime Minister, replace the interim National Assembly, the principal organ of Parliament, with the interim Batasang Pambansa, and allow him to continue exercising legislative powers until martial law shall have been lifted. It was lifted on January 17, 1981.
Amendment 6, regarded by many as the killer amendment, provides that, “Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land.”
This means that even if the Batasan were already in the process of crafting a particular legislation, if the President (PM) thought it was taking more time than necessary, he could take over from the Batasan and issue his presidential decree. But even though the Constitution granted him concurrent “legislative powers,” it did not grant him “constituent powers” to propose amendments to or revisions of the Constitution.
Under Article XVI, (1) any amendment to or revision of the Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its members, or by a constitutional convention. Or, (2) the National Assembly, by a vote of two-thirds of all its members, may call a constitutional convention or, by a majority vote of all its members, submit the question of calling such a convention to the electorate in an election.
Any amendment to or revision of the Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendments or revisions.
SC challenges
Three petitions were filed before the Supreme Court questioning the constitutionality of the proposed amendments and Marcos’ right to propose them. They were filed by fathers and sons Pablo C. Sanidad and Pablito Sanidad from Ilocos, and Raul M. Gonzales and Raul T. Gonzales Jr. from Iloilo, together with Alfredo Salapantan, and former 1971 Constitutional Convention delegate Vicente M. Guzman.
In resolving the petitions, the court considered three questions: 1) Is the question of the constitutionality of the proposed amendments political or justiciable? 2) Is the submission of the proposed amendments within the time frame allowed for them sufficient and proper? 3) Does the President possess the power to propose amendments as well as set up the required machinery and prescribe the process for their ratification?
On the first question, three justices—Felix Makasiar, Felix Q. Antonio, and Ramon Aquino—found it “political.” Seven others—Chief Justice Fred Ruiz Castro, Associate Justices Enrique Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Muñoz Palma, Hermogenes Concepcion Jr. and Ruperto Marti—found it “justiciable.”
On the second question, CJ Castro, Barredo, Makasiar, Antonio, Aquino, Concepcion and Martin found the submission sufficient and proper. Teehankee and Muñoz Palma found it insufficient and improper while Fernando doubted the power of the President to propose amendments.
On the third question, Teehankee and Muñoz Palma held that the President lacked the authority to exercise the constituent power to propose constitutional amendments. CJ Castro, Barredo, Makasiar, Aquino, Concepcion Jr. and Martin, however, held that in light of the extraordinary situation then obtaining-the nation was still under martial law, and the National Assembly, which has the power to propose amendments, and of which the President was a part, had not yet convened—the President could propose the amendments.
With Teehankee and Muñoz Palma alone dissenting, and Fernando ultimately concurring in the result, the court voted, 8-2, to dismiss the three petitions. Martin wrote the court ruling.
Constituent powers
Like the 1973 Constitution, the 1987 Constitution does not grant the President any constituent power to propose constitutional amendments. He has no business getting involved in any proposal to change the form or structure of the government, or in any proposed constitutional amendment whatsoever. There are no extenuating circumstances, like Marcos’ martial law, or the absence of a National Assembly, which had yet to convene at the time, to justify DU30’s unconstitutional involvement. The nation is not under martial law, even though DU30 seems to behave as though it were, and Congress has not formally yielded its legislative power to the President, even though he may have reduced the so-called “super majority” into a rubber stamp.
But DU30 is the one who is openly at the center of the frenzied effort to railroad a constitution that would fragment the unitary Republic into 18 separate and autonomous regions. This is a naked violation of a clear constitutional provision, as stated. What DU30 is trying to do is the exact opposite of “federalism,” which puts together separate territorial units into one whole, properly understood; in defiance of everything the world knows about it. He wants to balkanize the country into several fragments, and call it “federalism.” This is an outrageous denial of reality and reason, as universally understood.
An illegal commission
DU30 has illegally created a 22-man constitutional consultative committee to prepare a draft constitution for a “Federal Republic of the Philippines.” Chaired by former Supreme Court Chief Justice Reynato Puno, and with former Senate President Aquilino Pimentel Jr. and some so-called legal luminaries as members, this illegitimate committee has put its draft in DU30’s hand, for submission to the two Houses of Congress during his next state of the nation address on July 23.
Sen. Francis Pangilinan, chairman of the Senate committee on constitutional amendments and revision of codes, has announced he would begin examining the draft tomorrow by inviting Puno and a few other resource persons to a Senate hearing. Would he be prepared to examine the constitutionality of DU30’s involvement? This includes the legitimacy of Puno’s Con-com, and of the proposed draft itself. In case, the hearing gets past the constitutionality issue, would Pangilinan ask Puno and company to show how they expect the 18 regions to support themselves, given the fact that 67 percent or so of the nation’s income comes from only three regions—Metro Manila, Calabarzon, and northern Luzon?
Supreme Court still trusted?
So far, no one has gone to the Supreme Court to question the constitutionality of DU30’s involvement, in the same manner the Sanidad father and son of Ilocos, the Gonzales father and son of Iloilo, citizens Salapantan and Guzman questioned Marcos’ involvement. Is it because people consider DU30 more dangerous than Marcos? Or because they no longer regard the Supreme Court as a legitimate and dependable organ of the state, following its removal of Chief Justice Maria Lourdes Sereno, whose appointment they “nullified” on the basis of a power they had arrogated unto themselves, without any basis in the Constitution?
The Supreme Court has no power to review the appointment of any of its members. They are all impeachable officers and may be removed only by death, permanent disability, resignation, or impeachment for and conviction of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust. And yet after DU30 officially denounced Sereno as his “enemy” and called upon the justices to remove her on their own, they used a “quo warranto” petition filed by the Solicitor General as their basis for her removal.
This has prevented many law-abiding citizens from continuing to recognize the court as a functioning organ of the Constitution. They expected those who are preeminent in the knowledge and practice of the law to raise questions about grave constitutional threats to their future. Puno’s group and their proposed draft constitute one such threat. Instead of telling DU30 he has gone far beyond the zone of right reason and constitutionality, Puno’s cheering squad decided to suppress whatever they knew of the Constitution and basic moral principles to dance to the fiddler’s tune.
Not like Cory at all
Some have claimed that DU30 is only replicating what Cory Aquino did in 1986. This is slanderous nonsense. In 1986, after ousting Marcos, the military installed Cory as revolutionary president. She then named a 50-man constitutional commission to draft a new Constitution. I did not think it was the correct thing to do. I felt very strongly that the nation deserved to elect its own delegates to write a new Constitution, so I declined some church leaders’ offer, when it came, to nominate me as one of the Concom delegates. But some of my former colleagues, like the late former senator and foreign secretary Blas F. Ople, agreed to serve, and I never took it against them.
I cannot say the same thing of my friends in the present Concom. They had every opportunity to tell DU30 he was all wrong. They still do. But they have decided instead to simply enjoy his company and not risk any of his foul and flaming invectives. Thanks to them and their patron, the next generation of Filipinos now looks headed for the darkest night, inside the belly of this authoritarian beast.
fstatad@gmail.com
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