A “constitutional” coup

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Assuming dictatorial powers in 1972 by placing the country under martial law, Ferdinand Marcos launched what amounted to a coup d’etat against the liberal democratic government of which he himself was President.

One of that government’s claims to democracy were the more or less free—though often attended by violence and fraud– elections it regularly held. Marcos himself had been the beneficiary of the electoral system, having risen from congressman to senator to President of the Republic, to which post he was (most probably) elected twice. But Marcos demolished the liberal democratic regime in 1972 by using its own basic law against it. While the 1935 Constitution had a Bill of Rights (Section 1 of Article III) it also had subsection 2, Section 10 of Article VII, which describes the qualifications and powers of the President.

This provision made the President commander-in-chief of all armed forces of the Philippines, and gave him or her the power to call out the armed forces “to prevent or suppress lawless violence, invasion, insurrection, or rebellion.” In addition, “in case of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law”.

The framers of the 1935 Constitution could not have possibly anticipated the irony Marcos inflicted on the country in 1972: the Constitution’s being used against itself through this provision. Marcos’ Proclamation 1081 was followed by General Orders and Letters of Instruction suspending the Bill of Rights, abolishing Congress, and unleashing a wave of military arrests, detention, torture and murder—in short, abolishing the Constitution.

The result was a dictatorship Marcos described as “Constitutional authoritarianism,” but which in reality was a junta headed by himself, with selected officials of the civilian government, and his most trusted generals as members. The “civilian-military junta” some groups favor nowadays has already been tried, though under a different name.

Since Marcos, and during periods of turmoil, Filipinos often ask whether another martial law declaration and a dictatorial regime are possible. The usual and glib answer is no—at least not on the same scale and the same duration as Marcos’ had been. Although the 1987 Constitution still empowers the President to declare martial law

(Section 18, Article VII), it contains so many safeguards against abuse, among them limiting to 60 days any declaration of martial law and suspension of the privilege of the writ of habeas corpus.

These and other limits are formidable obstacles to the creation of another dictatorship—but only if the Constitution’s own provisions were to give birth to it. If the provisions of the present Constitution prevent the making of such a regime, the obvious way out for those desperate to usurp as much power as possible and to remain in power for life is through the making of another constitution.

Enter the Cha-Cha campaign, which is supposedly focused on amendments but which can very likely morph into the overhaul, even the discarding, of the 1987 Constitution, and the adoption of one more to the liking of the dynasties that since Commonwealth days have monopolized political power in this country.

Besides giving third-termers in Congress the opportunity to remain in the

legislature via the parliamentary system they’re eager to establish, the

Constitution that’s likely to emerge from the deliberations of the constituent assembly

congressmen want Congress to become is also likely to:

1. Savage the Bill of Rights (Article III) by putting in place various limits, among them the insertion of the phrase “responsible exercise of” after the sixth and seventh words of Section 4 (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);
2. Put additional qualifications on the provisions on the party list system to prevent those the regime considers as “leftists” from participation;
3. Allow the present putative president of the Philippines to finish her term with enhanced powers;
4. Abolish the restrictions on foreign ownership of media, land and public utilities;
5. Abolish the Senate to eliminate an institution that, as part of the system of checks and balances, is intended to curb presidential excess; and
6. Abolish the restrictions on the power of the president/head of state/ prime minister to declare martial law.

Except for number (4), to which it has been committed since 2001, Malacanang and its allies in the House have been focused on these efforts since questions over the legitimacy of Mrs. Arroyo demonstrated how much of a hindrance to her remaining in power press freedom, free expression, freedom of assembly, the opening of the House to party-list groups, the restrictions on the power to declare martial law, and the Senate’s insistence on its independence, have been.

With its disregard for the Constitution and the Bill of Rights, the Arroyo regime has exercised extra-constitutional powers since 2005, when it implemented policies restrictive of free expression and freedom of assembly. But this has been achieved without the Constitutional mandate Marcos had in 1986, which is why the Supreme Court has declared such policies as EO 464, CPR and Proclamation 1017 as at least partly illegal.

Obviously the “remedy,” given the present Constitution’s provisions against the establishment of another authoritarian regime, is to write another Constitution. It would be a “constitutional” coup in a sense different from Marcos’, but nevertheless a coup against the liberal democratic regime People Power 1 restored in 1986. That is why “Cha Cha” at this time, and as it is being directed, must be opposed.

(Business Mirror)

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