“That Juan Ponce Enrile is now suggesting going back to the martial law provisions of the 1935 Constitution/1973 Constitution is to forget and deny the atrocities and abuses of the Marcos regime”
In my column last Saturday, I detailed how the Philippines became what emerged as the US-Marcos dictatorship. Unfortunately, the United States supported Marcos for most of his years in power and only abandoned him in 1986 during the EDSA revolution.
In the succeeding years from his declaration of martial law in 1972, Marcos consolidated his power through presidential decrees, Letters of Instruction and other presidential issuances.
The most controversial of these decrees and proclamations were Presidential Decree 86 calling for the cancellation of the plebiscite and instituted barangays’ citizens’ assemblies to ratify the new Constitution by a referendum from 10–15 January 1973, and Proclamation 1102 certifying and proclaiming that the 1973 Constitution had been ratified by the Filipino people and thereby was in effect.
By this time, martial law was in full force and the 1971 Constitutional Convention had finished drafting the new Constitution, to be known as the 1973 Constitution, albeit under suspicious circumstances.
In the celebrated case of Javellana v. Executive Secretary, the Court stated in its dispositive portion that, “This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect.”
In that case then, there was no Supreme Court ruling that the 1973 Constitution had been validly ratified because six out of 10 Justices held that there was no valid ratification in accordance with Article XV, Section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., “in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters.”
Since then, the 1973 Constitution was amended a few times, October 16, 1977, January 30, 1980, and April 7, 1981, which changed the form of government from presidential to parliamentary, ostensibly reducing the power of the president as head of state and transferring power to the prime minister.
But with Congress, padlocked and the president acting as the legislature and ruling by decrees, the changes in the Constitution were mostly cosmetic. The most controversial of these decrees was the so-called Amendment 6.
The 1976 amendments were ratified in the referendum-plebiscite in October 1976 and were proclaimed in full force and effect also that month. The most controversial yet was Amendment 6 granting the president concurrent legislative authority with the parliament.
By virtue of Amendment 6, Marcos virtually became a one-man ruler. It granted him legislative power even after the formal lifting of Martial law on January 17, 1981.
What made it worse was that the Batasang Pambansa was effectively a rubber-stamp legislature, always approving whatever the President proposed.
The president exercised absolute power until he was ousted in 1986 and forced to live in exile until his death on September 28, 1989, living in his wake an economy in shambles, horrendous cases of human rights violations, damaged institutions, and a demoralized nation wallowing in poverty.
And so the nightmarish 14-year period of authoritarian rule ended, which would include eight years of Martial Law (ending on January 17, 1981, through Proclamation 2045, followed by six more years where Marcos retained essentially all of his powers as dictator.
Learning from the horrors of the Marcos despotic regime, the 1987 Constitution came up with more stringent safeguards and limitations for imposing martial law.
Section 18 of Article VII of the 1987 Constitution now provides for broad and specific limitations to the power of the President to proclaim a state of lawlessness, to suspend the privilege of the writ of habeas corpus, and to declare martial law.
Under the present set-up, the president can only declare martial law in an event of invasion or rebellion, and the period of effectivity is set at a maximum of 60 days.
A mere state of lawlessness is not a Constitutional ground to suspend the privilege of the writ of habeas corpus or to declare martial law.
In such a case, the remedy of the President, as Commander-in-Chief, is to invoke the “call out” clause, supra, that is, to mobilize the armed forces to restore peace and order.
Moreover, the president is required “within 48 hours” from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus to submit a report in person or in writing to Congress, who may revoke or extend such proclamation.
Finally, the political question doctrine cannot stop the Supreme Court from determining the “factual basis” for the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof.
These safeguards are in place for a compelling reason — to prevent a repeat of the experience of the Marcos dictatorial rule.
That Juan Ponce Enrile is now suggesting going back to the martial law provisions of the 1935 Constitution/1973 Constitution is to forget and deny the atrocities and abuses of the Marcos regime.
Who would not be? Enrile was the chief implementer of martial law during the time of the dictator and is now the chief legal counsel for the dictator’s son and namesake, President Ferdinand “Bong-bong” Marcos.
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