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Jul 29

The Explainer: 1987 Contitution

That was Ferdinand Marcos justifying his New Society as  perfectly legal government on the tried-and-tested and familiar argument of where is your evidence, bring it to the proper forum, all the opposition is just political noise!

But we know what’s legal isn’t necessarily what’s right. As we approach the anniversary of Edsa, let’s take a look at the legal heritage of People Power, the 1987 Constitution. Was it so anti-Marcos that it basically doesn’t work?

I’m Manolo Quezon. The Explainer.

 

Next week will be the birth anniversary of Claro M. Recto, intellectual and statesman. His birthday from 1935 to 1973 was also Constitution Day because it’s the date in which the delegates signed the 1935 Constitution.

 

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..

The second flaw of the l935 Charter was seen to lie in sits being a “colonial document,” a flaw that eventually did it in: “its colonial” nature was the rationale for the Constitutional Convention in l97l.

That late Vicente Albano Pacis, said the provision on martial law was copied word for word from the Jones Law (which served azs 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.

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.

One reason Recto’s warnings were disregarded was the high prestige enjoyed by institutions like the Supreme Court, which had produced heroes like Chief Justice Jose Abad Santos.

From the time it became an all-Filipino institution in 1935, the Supreme Court had jealously protected its independence.

By 1972, Ferdinand Marcos faced a couple of problem. He’d been elected twice and would have to leave office in December, 1973. He didn’t want to go. However, he was increasingly unpopular so his staying on was going to be a problem.

A Constitutional Convention had convened in 1971 but its work was slow and it got bogged down in scandals involving Marcos’ bribing the delegates so they’d find a way to keep him in office. Marcos himself, writing in his diary, said the ConCon was so disgraced, anything it produced would be rejected by the people in a plebiscite.

In the end, his solution was martial law and going beyond anything imagined by the framers of the 1935 Constitution. Marcos basically mounted a coup, but was stuck with having to make his actions legal. He fought a campaign on three fronts: in the ConCon, in the Courts, and against Congress.

In reverse order, his first deadline was that Congress was due to convene in January, 1973. In his memoirs, Arturo Tolentino wrote that contrary to legend, Congress was not padlocked right away. It was when some congressmen and senators finally got the courage to decide to reconvene Congress in order to counter martial law, that Marcos suddenly pushed for the “people’s assemblies” that “approved” the 1973 Constitution in a rush, and then he padlocked Congress on the excuse that it had been superseded by events.

Marcos had already prepared a new Constitution by offering  delegates to the Constitutional Convention a reward in exchange for their swift approval of a new constitution. If delegates approved the Palace draft for a new constitution, they would all be allowed, thanks to a transitory provision appended to the charter to become members of a new National Assembly. But there was a catch. Only those who voted in favor of the constitution would be allowed to sit in the new legislature. The irony was, of course, that no member of the ConCon ever  got to sit in the interim National Assembly, because Marcos changed the rules before they could do so.

Marcos’s referendum was not a secret ballot plebiscite as required by the 1935 Constitution for any new constitution to validly replace it. When the ratification of the 1973 constitution was challenged, the Supreme Court ruled that yes, the 1973 constitution had been promulgated illegally but also said that since the new Constitution was now in force, the whole argument became moot and academic. Why did the the Supreme Court go along with Marcos? Because Marcos threatened the court: if they didn’t play ball he’d proclaim a revolutionary government and all the justices would be out of a job.

Marcos the put in place the laws to uphold his dictatorship. He passed decrees specifying that cases involving subversion, rebellion, etc, could only be tried by military courts, which completely bypassed the civilian courts.

Then, with a new Constitution in place, Marcos kept amending it as needed. His amendments, which including retaining martial law powers even after he formally lifted martial law in 1981, were ratified in rigged referendums.

As early as 1984, in its Declaration of Unity, a joint manifesto issued by opposition leaders and the Convenor’s Group in l984, Point 5 of the manifesto called for “free, orderly and honest elections, “listed that,” as a minimum, “ every effort would be made to formulate and ratify a new Charter “within eighteen months after the new leadership shall have assumed office.” More or less the need to substantially amend, if not replace, the Marcos Constitution became an opposition issue.

Then Edsa took place. Already pondering on constitutional niceties (as David Wurfel put it. “A nation of lawyers paid early attention to constitutional legitimacy”) the oath of office that Cory Aquino took made no mention of her mandate being a constitutional one. Instead of referring to the Marcos Constitution, she made it explicit that “on the basis of the people’s mandate clearly manifested last February 7, (we) are taking power in the name and by the will of the Filipino people . . .”

The question confronting the new government was: could a government put in power by toppling a dictatorship, continue to use the legal instruments of that dictatorship?

Cecilia Munoz Palma advised Cory Aquino, and I quote, ”The KBL members of parliament should be given the benefit of the doubt. The President should invest a little more faith. . .  we are bringing into the reformed society the subversives, the CPP, the radicals. . . so why can’t we bring in the pro-Marcos groups. . .even if they are ‘bad.’ Nobody is beyond reform.” Pointing out that, for all its flaws, the l973 Constitution at least existed and could be used, Palma’s group advocated its adoption-at least on a transitional basis. After all, the snap election had been held under that Constitution, and under it the president of the Philippines could only be proclaimed by the Batasang Pambansa.

Why not correct the injustice that took place when the KBL-dominated assembly proclaimed Marcos? All the Batasan had to do was reconvene, revoke its previous proclamation of Marcos, and pass a law granting Cory extra-ordinary powers to reform the government and (just in case), dissolve the Batasan.

After all, after Marcos fled, 46 KBL, MPs defected to the Cory camp, “swelling its ranks”from “59 to l05.” Then the Constitution could be purged of its totalitarian aspects. No dice, said Cory. Deriving her legitimacy from Marcos’s parliament, and placing the new government under the Constitution Marcos had promulgated to legitimize his dictatorship and its abuses, was simply too offensive.

So one option for the new government, which was dear to the hearts of many of those who had been active in public life before martial law, was the restoration of the l935 Constitution. There was much going for the view that held that the l973 Charter, which had been railroad through a cowed and bribed convention, was never property ratified. The implication of this was that the l935 Constitution had never ceased to operate. But practical problems confronted the new government.

If  you proclaimed the 1935 Constitution still in operation, it would be a vindication for premartial law leaders like Gerry Roxas and Sergio Osmena Jr. It would mean that all offices had been vacant since December 30, 1973. But Cory Aquino might have to run in another presidential election.

This brought up frightening possibilities: at a time when stability was just beginning to be restored, another massive political exercise would take place, involving the risk of having the yet-undismantled KBL machinery heave into action to make up for the debacle of February. No doubt Marcos would pull out all the stops, and might actually pull off a victory, aides by the forces that now clearly realized that they were done for, in the new regime.

Cory refused to contemplate holding another presidential election, and the l935 option was closed forever. The Old Congress would never reopen.

Once the l935, option was out of the running two groups of advisers provided-and advocated-different constitutional plans for President Aquino to choose from. A group, composed of Justice Cecilia Munoz Palma, Marcelo Fernan and  Homobono Adaza advocated the continuation of the l973 Charter. On the other side were Fr. Joaquin Bernas, Neptali Gonzales (then minister of justice) and what Nemenzo calls “the Left-of corner” advisers.

It took a few week for her to make up her mind, and finally she chose a prudent course. On March 25, l986, “instead of proclaiming a revolutionary government, she declared the government to be constitutional while simultaneously promulgating her own’constitution’ known as the “Freedom Constitution.” It retained the Bill of Rights and selected portions of the l973 Charter, vested the President with legislative powers,”until a legislature is  elected and convened under a new Constitution.’  And authorized th e President to appoint a Constitutional Commission (Con-Com).”

Soon after being appointed on June 2, l986, the Con-Com went to work, under the presidency of Justice Cecilia Munoz Palma, who worked together with commissioners such as Bernas.. The new Constitution was signed on October l5, and ratified on February 2, l987: making it 23 years old tomorrow.

In David Wurfel’s estimation. “The basic law is probably close to what it would have been had the Constitutional Convention of l97l been able to complete its work without the imposition of authoritarian rule.” When we return, we’ll talk to a Constitutional Commissioner about ongoing criticisms of our present Constitutio.

 

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