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Nov 06

The Explainer: Plebiscitary Democracy

That was from Part I of “Hitler: The Rise of Evil,” where we see Hitler making a mockery of the courts.

We’ve been hearing a lot about proposals for plebiscites, yet we forget how plebiscite can be tools for tyranny. What’s our own nation’s experience with plebiscites? And what inspired those plebiscites in the first place?

Plebiscitary democracy is what we’ll examine tonight.

 

I.

 

President Magsaysay famously said, “Can we defend it at Plaza Miranda?” And there’s a plaque to prove it. He did not say, “Can we let them say it in Plaza Miranda if we don’t let them say anything else anywhere else and imprison and punish them if they say anything at all?”

Magsaysay’s famous quote helps us understand a basic characteristic of Philippine democracy. It is, is by its nature, based on plebiscites: on an issue-by-issue referendum between the leader and the led. Cory Aquino, as the American writer Lew Gleeck pointed out, was a master of it, the most famous example being the plebiscite to approve our present constitution.

Our formal history of plebiscites began on May 14, 1935, when we went to the polls for the first time, to approve or reject a proposed constitution. 1,213,934 or 96.6% of those who voted, said “Yes.” Only 42,690 or 3.4% said “No.” But barely fifty percent of those qualified to vote, voted. This showed the weakness of plebiscites in contrast to elections: they tend to have a lower over-all participation by the voters. Not that it matters, in the end.

On April 30, 1937 Filipina women were asked in a plebiscite, if they wanted the right to vote. They said yes. On September 15, they gained that right – seven years ahead of the women of France.

On October 24, 1939, changes to the economic provisions of the Tydings-McDuffie Act were submitted in a plebiscite, because they required amendments to the ordinance appended to the constitution. The changes permitted Philippine coconut and  tobacco duty-free status and provided for negotiations on trade between America and the Philippines to take place.

In 1940, the most far-reaching amendments to date were approved by the National Assembly in April of that year and accepted in a plebiscite in June: it cut the term of the president from 6 years to four, but allowed reelection for another 4; it restored the Senate; and it established the Commission on Elections.

On March 11, 1947, there was a referendum on the Parity Amendment, granting Americans equal economic rights until 1973. It won –but barely, and controversially.

In 1969: a plebiscite question was asked, regarding a proposal for Congress to convene as a Constituent Assembly. The electorate responded with an overwhelming “No” –the first and only time a plebiscite question has been defeated. The result was Congress had to bow to pressure to call a constitutional convention in 1971.

But the convention couldn’t get its act together, and President Marcos saw he was running out of political time. His second, and constitutionally last, term was due to expire on December 30, 1973. Something had to be done. What he did first was impose martial law on September 23, 1972. The second thing he did was change the constitution.

At first, there was going to be a formal plebiscite to approve the new constitution. Then Marcos learned it would probably lose in a free vote. So he cancelled the plebiscite and asked people to simply raise their hands.

Scholar David Wurfel writes of the 1973 Constitution that the “document was drafted in the Presidential palace, adopted by the Constitutional Convention under duress, and ‘ratified’ by voice vote in village assemblies were armed soldiers and policemen were in prominent attendance.”

Marcos  knew the appeal of an argument we still hear today: “let the people decide!” He also gambled that what mattered was a devotion to form over substance.

The Supreme Court in Javellana vs. Executive Secretary and so forth, regarded the ratification as invalid; but failed to achieve a majority to declare the new constitution not in force.

 

Explainee, what are you taught about this case?

 

So Marcos won by default –form over substance.

Nine plebiscites, referenda, or elections were held under the New Society, all of them with a result favorable to the government.

Recall that Marcos’s term had expired on December 30, 1973. By 1977, he was essentially serving it out his third term in office. So in December, 1977 a referendum was held, which approved Marcos continuing in office and also becoming Prime Minister. By this time, Marcos didn’t need the bribed and cowed delegates to the 1971 Con-Con so he double-crossed them on an earlier promise. Vote for my constitution, he said in 1972, and you can sit in the new parliament this constitution will create. Six years later, he announced that parliament would never sit. Instead, a Interim Batasan Pambansa would be elected in 1978. He rigged the vote except in Cebu, he lost so big, no one would accept his candidates.

By 1981, Marcos had embarked on essentially his fourth term in office. No coincidence, then, that he sought some kind of new mandate. On January 17, 1981, President Marcos before a throng of 1,500 officials in Heroes Hall proclaimed the end of Martial Law.  In February 1981, the Batasan Pambansa, sitting as a constitutent assembly, approved more amendments. The presidential system was restored; and on April 7, 1981 the government held yet another a plebiscite. It won, just as it would win when Marcos engineered more constitutional amendments, including yet another typically tricky one: since he was getting older, and sicker, even his party wanted a constitutional successor. So Marcos said yes. The vice-presidency was restored in 1984, but on condition it would be vacant until 1987, when Marcos’s new 6-year term would end.

Richard J. Kessler wrote that the 1984 Batasan Elections were “the first honest test of Marcos’ popularity since the 1969 presidential election.” His grip started to loosen. In 1986, the Mother of All political referenda was held. Marcos won –in his rubber-stamp Batasan Pambansa. So the Batasan was deservedly abolished.

Post Marcos, of course, we’ve only had one national plebiscite. That was on February 2, 1987 when the electorate overwhelmingly approved our present constitution.

But like I said, Marcos taught us form can matter more than substance. Could this be because most people suspect amendments are substantially about ambition? We’ll take a look when we return.

 

II. Who

That was from Part II from “Hitler: the Rise of Evil,” where the new Chancellor Adolf Hitler gets parliament to strip itself of power and junk democracy. In the face of what’s commonly referred to as political will, legislatures, whether congresses or parliaments, often lack it.

On the eve of martial law, September 6, 1972, former president Diosdado Macapagal rose to make a speech.

 

Explainee, would you like to read a portion of what he said?

 

“After careful assessment, hard thinking, soul-searching, as it were, and after listening to the debates I have arrived at the firm conclusion that unless the Constitution that the Convention shall approve contains a provisions which disqualifies incumbent Presidents, present and future, and their spouses from making a bid to be Chief Executive under the new Constitution, the new charter will likely not be ratified by the people. Being of this conviction, there is no course left for me but to reiterate my stand that we must disqualify from becoming Chief-Executive under the new Constitution all those who have already been Presidents and their spouses, including myself, in order to insure the ratification of the new charter by the people.”

 

Macapagal was speaking in favor of what’s come to be known as the “Ban Marcos Resolution” in the ConCon. But what is one of Macapagal’s noblest speeches may have had a little vanity behind it. The PCIJ in an article suggested that ConCon President Macapagal wasn’t beyond being tickled by the idea of being Prime Minister Macapagal. And so he became one of those made a pact with Marcos: by voting for the 1973 Constitution, he expected to serve in the interim national assembly. How was he to know that Marcos would never convene it, and in 1977, abolish it altogether?

Still, Macapagal said what he did in 1972, because he knew that whatever the reasons, the public would always suspect politicians of partisan motives in approving constitutional amendments. In 1939, Jose Yulo, Jose Abad Santos, Jose P. Laurel, Jose E. Romero, Manuel Roxas and Manuel Briones, and also Claro M. Recto, Quintin Paredes and Pedro Sabido were asked to form a group to consider the extention of the president’s term of office.

Four decided against the amendments: Recto, Romero, Laurel, Briones and  Sabido; and four decided the amendments were alright: Abad Santos, Paredes, Yulo and Roxas.

In the end, all decided to go along with the amendments when the unicameral National Assembly approved them in 1940. As Jose Romero explained it, their going along (at least those who had initially opposed the amendments) was not, to them at least, a betrayal of their earlier stand.

 

Explainee, would you like to read what he wrote?

 

“These are the times when a conscientious man must do a lot of soul-searching. While I thought the proposed amedments were a mistake, I did not think it was so evil that one had to sacrifice his political life. This was the attitude taken by the others… Dr. Laurel… had said…that if he had his way he would not touch a single comma of the Constitution, later was to say that the proposed amendments did not materially alter the basic philosophy of the Constitution nd he would go along with them. The attitude was also adopted by the others [including] Claro Recto, Manuel Briones.”

 

Romero said this because he was a member of the ruling party, and the party, which controlled 100% of the unicameral National Assembly’s seats, was told it had to restore the Senate.

Jose Romero wrote that the directorate of the Nacionalista Party had been asked if Congressmen “could vote freely on the amendments since this was a matter of conscience… The Party leaders replied that the party had taken a stand on the issue and that while they were free to vote [according to] their conscience, the party would take a dim view on their reliability as party men.” Romero said that in response to this, Tomas Oppus (“ one of the wittiest Assemblymen” and father-in law of Batasan Speaker Nicanor Yñiguez) concisely described the situation. Explainee, could you read it?

 

“The situation, said Oppus, was like that of a little boy who asked his uncle if he could go to the show. The uncle said that he could do so but that when he came back he would get a whipping. ‘That’ said the little boy, ‘means I cannot go to the show.””

 

The Senate had been abolished in 1935, not by the legislature, but by a properly-elected Constitutional Convention. The unicameral National Assembly voted, as a constituent assembly, to restore the Senate by 1941.

But then, we had a Speaker named Jose Yulo; today we have a Speaker named Jose de Venecia. Then we had assemblymen like Jose Romero, Quintin Paredes, names younger viewers may not recall because they died without having become notorious as crooks. Today we have congressmen like –well, let’s not mention names not worth mentioning, shall we?

The point is that at a time when assemblymen still hadn’t discovered the joys of congressional allowances (they would only be invented in 1945), and still had an idea that party loyalty should count for something, they decided they could propose amendments harmful to their ambitions and which reduced their power. They weren’t happy about it, but they did it. And since not everyone got everything they wanted, the electorate was willing to give the amendments a chance. They served the country well until the constitution itself was scrapped by Marcos.

As we saw earlier, the political genius of Marcos lay in his refusing to abide by any rules; the weakness of this opponents was that they were conditioned, culturally, to believing certain rules shouldn’t be broken, and were horrified when they were; and Marcos successfully engineered the elimination of the strong, unwritten confines of tradition. Tradition which may not guarantee honest government, but keeps it running relatively smoothly, avoiding turning it into a never-ending, limitless, struggle for power.

Wurfel argued in 1977 and I agree, Philippine democracy did not break down on the eve of martial law; it was provoked and challenged by Marcos. The virtue of the old, premarital law era was that it defined how winners and losers behaved, guaranteeing some stability and peace between contests and confining the vendetta to the provincial level. Marcis turned vendetta into state policy.

As they say, you can fool some people all of the time but you can’t fool all the people all the time. Marcos’s obsession with form over substance couldn’t disguise how self-serving all his amendments were. And so if presidents were given the benefit of the doubt before him, they’ve never given our presidents the benefit of the doubt since. Which is why Ramos failed in efforts to secure amendments in 1996, as did Estrada in 1997 and which is why Mrs. Arroyo’s having a tough time, now.

So there we have it: our history of plebiscites tells us a plebiscite question can lose, just as a plebiscite, even if it succeeds, depends on how it was held and why amendments were proposed in the first place.

But there are legal questions that need to be resolved, even before we have a plebiscite. What some of them are, when we return.

 

My View

 

How does a government, in particular any administration or ruling coalition, put forward and lobby for constitutional amendments it wants? By the means past administrations and their allies have done so: by proposing it to the legislature, which can then submit amendments for ratification by the people in a plebiscite. Or it can do so by calling for a constitutional convention. To pour either the government’s patronage and other resources, or to throw its weight behind the advocacy of changes, through the people’s initiative mechanism, is to  debase people’s initiative as conceived and included in our Constitution.

In a democracy, the public is the ultimate judge, particularly when they express their opinions in an election for candidates or a plebiscite. However, the ultimate absurdity of any election or referendum, if held in a controlled and blatantly illegal manner, was exposed with the sham “approval” of the 1973 Constitution and the bogus martial law “plebiscites.” The spirit an intent of a process, and its rules as widely-understood and accepted, must be respected: democracy isn’t winner-take-all, particularly if winning requires setting aside the rules to which everyone ought to be committed.

 

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