Nostalgic Reflections on the Constitution of 1935
by Manuel L. Quezon III
The anniversary of the signing of the l935 Constitution is still far away: Feb. 8, the birthday of Claro M. Recto, the president of the convention that wrote it. But at a time when our present constitution — which just celebrated its 19th birthday on Oct. l5 -seems to be in a state of siege. What with all sorts of unsavory individuals howling for amendments, it is worthwhile noting that there still exists a small group of citizens who wouldn’t mind -perhaps they would even welcome — a return to the Commonwealth-era charter. The late Max Soliven was one of those who said it was the best constitution the country ever had.
At the time it was in force, the l935 Constitution was held to contain two flaws. The first was the broad definition of the conditions that justified the imposition of martial law, without, however, specifying any limitations as to the duration or extent of it once it had been imposed by the president. That old curmudgeon, Vicente Albano Pacis, bellows to this day that the provision on martial law was copied word for word from the Jones Law (which served as a “colonial basic law” before the Commonwealth), but minus the Jones Law proviso requiring the governor-general to submit, for approval or disapproval, his action to the president of the United States. According to Pacis, this was done deliberately. World War II put an end to that little project.
It is undeniable that Recto did make a speech in the l950s warning of how susceptible to abuse the provision on martial law was; that no one bothered to amend the provision, after the learned Recto had cautioned the people, reveals how it never occurred to people that such an abuse was likely to happen. That no president, from the time an incumbent was reelected (but only to a partial term) in November l94l, until l965, when Marcos won an unprecedented full second term, may account for this. No sense worrying about incipient dictators when incumbents were never able to enjoy legitimate second terms in the first place!
The second flaw of the l935 Charter was seen to lie in its being a “colonial document,” a flaw that eventually did it in. Its colonial nature was the rationale for the Constitutional Convention in l97l. And yet, after the adoption of the l973 Constitution, affection for the junked basic law continued.
This affection persisted because of what can only be described as the highly irregular circumstances under which the l973 Constitution was “approved.” From the very start, observers and (imprisoned or not) critics of Marcos pointed out that a new charter, for it to be ratified legally, had to be accepted in a national referendum. Marcos’ shooing everybody into village assemblies, where they were asked to raise their hands to signify their acceptance of the railroaded new charter, hardly constituted a proper referendum in the accepted manner.
The new charter’s validity was questioned before the Supreme Court (Javellana v. the Executive Secretary) in l973. A messy decision — in which five points were raised — resulted when six justices chose to uphold the validity of the new constitution, with four independent justices (Concepcion, Saldivar, Fernando and Teehankee) dissenting. This did nothing to settle the issue in people’s minds, and served only to tarnish the Supreme Court’s image.
In l98l, former President Diosdado Macapagal, who had at first feared for his life and safety under the Bagong Lipunan, took the bold (and symbolic) step of reconvening the Con-Con, “securing”(in the words of Alice Colet Villadolid in a recent Inquirer commentary) the attendance of “l30 brave delegates of the total number of 3ll. They issued a proclamation that the charter had been invalidly ratified and that all actions based on it were null and void. Macapagal told the foreign press that without the barangay-ratified charter, President Marcos must abide by the Constitution of l935, which prohibited further extensions of his term.” Marcos of course, just snickered at them.
But Marcos’ days of snickering were numbered. Two years later Ninoy Aquino came home and was murdered. The dictatorship’s implosion became irreversible. In his arrival statement, which was widely publicized in the days that followed his murder (it was printed in full in Mr & Ms.) Ninoy called for the restoration of all “rights and freedoms” in the l935 Constitution — but not a return to the charter itself. Hoping until the very end to be able to talk Marcos into being reasonable, it would have been impolite to call for the outright junking of a constitution, when getting Marcos to step down was a tall enough order. Even Ninoy had to concede that Marcos (as Francisco Nemenzo wrote, after EDSA) “had irretrievably consigned the l935 Constitution to the dustbin of history.”
But the 1935 Charter never had the flaw at the heart of the present, heightened, political crisis: None of its provisions was ambiguously written.