The travesty of the 1973 Constitution

posted September 20, 2016 at 12:01 am
by  Tony La Viña
While reformists called for the convening of the 1971 Constitutional Convention, the Marcos forces eventually hijacked it; as a consequence, the 1973 Constitution was turned into a tool by the Marcos regime to perpetuate itself in power.

Having declared martial law earlier, Marcos issued Presidential Decree No. 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. This was challenged before the Supreme Court in what became known as the ratification and plebiscite cases. These involved petitions assailing the proposed ratification upon the grounds, among others, that the presidential decree “has no force and effect as law because the calling... of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress...” and “there is no proper submission to the people there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof.”

While the case was being heard, Marcos, on 17 January 1973, issued Proclamation No. 1102 certifying and proclaiming that the 1973 Constitution had been ratified by the Filipino people and thereby was in effect. This proclamation was questioned in Javellana v. Executive Secretary, which saw the Supreme Court severely divided on the issues. Despite the voting, the Court decision 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 as no Supreme Court ruling that the 1973 Constitution has been validly ratified because six out of ten 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.”

Moreover, that Supreme Court “resolution” could not be considered an outright decision on the merits. Nevertheless, because there were not enough Justices to grant the petitions to nullify Proclamation 1102, a majority of Justices agreed on the formula that there was no longer any further judicial obstacle to the new Constitution being considered in force and effect.

The Javellana decision removed the final legal obstacle to institutionalizing an authoritarian regime in the Philippines. Later on, because of this legitimation by the Supreme Court, Marcos and his supporters would claim that his regime was one of constitutional authoritarianism.

Chief Justice Roberto Concepcion, then sitting as head of the Supreme Court, dissented from the Javellana case, and famously added “I dissent.” right after the dispositive portion. Disappointed by the Court’s decision, Concepcion would opt for early retirement. Later, he would have the last word as in the Chief Justice would later chair the Judiciary committee of the Constitutional Commission that would draft the 1987 Constitution. In the latter constitution, Concepcion made sure that never again would the Supreme Court shirk from its solemn duty to decide the most important disputes in our society.

During its lifetime, several amendments to the 1973 Constitution were introduced. These were initially either initiated primarily to perpetuate Marcos’ one-man- rule, as exemplified by the aforementioned Amendment No. 6, or introduce to construct some semblance of democracy to his unpopular regime by experimenting with various political systems like the French presidential system. The referenda and plebiscites that were conducted to ratify the amendments were all rigged, orchestrated, and made possible by his total control of governmental agencies like the bureaucracy, the military, and the Supreme Court.

The 1976 amendments were ratified in the referendum-plebiscite held in October 1976, and were proclaimed in full force and effect also that month. The most controversial among the 1976 amendments was Amendment no. 6. While 1973 Constitution vested legislative power in the National Assembly or the Batasang Pambansa, this amendment granted the concurrent legislative authority with the parliament.

By virtue of Amendment No. 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.

It must be said though that there were a few exceptions in the 1978 and 1984 parliaments. Those who stood their ground against the dictatorship included assemblymen like Reuben Canoy, Nene Pimentel, Homobono Adaza, Hilario Davide, Marcelo Fernan, Orly Mercado, Lito Atienza, Eva Kalaw, Salvador Laurel, and others in the opposition.

The 1987 Constitution replaced the 1973 Constitution. But unfortunately, certain concepts and provisions from latter were imported into the former. Foremost is the choice of the presidential system over a parliamentary system and a unitary system against a federal system. These two fundamental governance options continued the imbalance among the three branches of government and between the national and local government units.

Filipinos like to think that the three branches of government are separate and equal, but neither is true both formally and in the operational code of actual exercise of powers. Under our presidential and unitary system of government, patterned less from the American system (where the US Congress has very strong powers that make it rise up to parity in influence as the President and a Supreme Court that is revered for its independence) but more from the office of the colonial governor general that had absolute powers to keep colonial Philippines in check and under control, the President is much stronger than the Congress and the Supreme Court.

We have seen this strong presidency in the controversy around Aquino vs. Araullo when former President Noynoy Aquino did not hesitate to publicly pressure the Supreme Court to modify its decision declaring certain acts under the Disbursement Acceleration Program unconstitutional. The Araullo decision should be read together with Belgica v. Executive Secretary, another decision on constitutional issues regarding the budget which declared the Priority Development Assistance Fund and other pork barrel funds (defined as those where legislators continue to have a say on post-enactment budget decisions) unconstitutional.

The overall impact of these two decisions is to strengthen the role of the president in budget decisions even as Congress formally has the power of the purse. At present, the president has almost total control of the budget, which explains why legislators easily abandon their political parties to join the administration coalition.

Most dangerous of all, as I mentioned in the first column of this series on the lingering legal shadow of martial law, are the provisions in the 1987 Constitution giving the president the power to declare martial law. Because of that, we could repeat September 1972 and the travesty of a constitutional dictatorship all over again.

With President Duterte, we come full circle. In his hands now are the full powers of the presidency. And they are awesome.

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Topics: Tony La Viña , 1973 Constitution , 1971 Constitutional Convention , Ferdinand Marcos , martial law

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