Wednesday, February 15, 2017

MEL STA. MARIA | The 1987 Freedom Constitution should not be changed

"x x x.

(Author: Atty. Mel Sta. Maria is the Dean of the Far Eastern University Institute of Law and Professor at the Ateneo de Manila School of Law).

Today, our youths must understand that despots, charismatic as they appear, will always endeavor to create some semblance of democracy in their rule. It is important for despots to show that they are protecting people's rights, although in reality their motive is purely self-empowerment. And this power trip starts with the Constitution – the fundamental and supreme law of the land that sets the limits and powers of government and the inalienable rights of the citizens.

On February 2, 1987, the Filipino people ratified the 1987 Freedom Constitution. Its significance can be appreciated by studying the Constitution which preceded it – the 1973 Martial law Constitution of former dictator Ferdinand E. Marcos.

Ferdinand E. Marcos, a cum laude law graduate from the University of the Philippines and number one topnotcher of the bar examinations, was brilliant and ruthless as a dictator. When his official term as President was ending, he declared martial law, unceremoniously closed Congress, jailed many of its prominent members especially those in the opposition, locked up journalists and media-people critical to him, suppressed the freedom of the press, speech and association, and arrogated all powers of government unto himself. 

To further perpetuate his power, Marcos knew where to start – the Constitution. And so, to replace the 1935 Constitution and using his martial law might and influence, the dictator had a new Constitution spuriously ratified by the raising of hands of the so-called "citizens' assemblies". That Martial Law 1973 Constitution had all the hallmarks of despotism. 

It contained "Amendment Numbers 5 and 6" which made the Batasang Pambansa a rubber stamp – a useless legislative branch of government ignored and/or disregarded at a whim by President Marcos. Amendment No. 5 authorized the President to "continue to exercise legislative powers until Martial Law shall have been lifted." And had Martial Law been truly lifted, the President still would have had legislative powers via Amendment Number 6 which provided that "whenever in the judgment of the President, there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instructions, which shall form part of the law of the land."

If the dictator Marcos did not like a law or a bill being discussed at the Batasang Pambansa, he simply issued a Presidential Decree on the same subject using his own judgment and even relying merely on his gut-feel. There were no standards for the President's exercise of legislative power except his own self-serving determination of what they were. So, if in his personal judgment "for any reason" the legislature was "unable to act adequately" in one, two, three or more months or even in just one, two or three days, he can just legislate on his own and by-pass the legislature. This also rendered nugatory the legislative oversight and fiscal powers. 

During his dictatorship, President Marcos literally issued more Presidential decrees, Executive Orders and Letters of Instructions than laws passed by the Batasang Pambansa. The President churned up laws and repealed them as frequent as he desired. And many of them were made without publication and proper dissemination of information. People were incarcerated via Presidential Decrees that would suddenly exist depending on the Presidents caprice.

To firm up his hold over the impotent Batasang Pambansa, the Presidential veto of any legislation was absolute and final under the Marcos Constitution. This is unlike the 1987 Freedom Constitution where a presidential-veto can be overridden by Congress as a check on possible abuses of such presidential prerogative. 

Also, unlike the 1987 Freedom Constitution where judges and justices are appointed only after determination and written recommendation to the President by an independent body, the Judicial and Bar Council (JBC), the 1973 Marcos Constitution gave the President the sole and exclusive prerogative to select, determine and finally appoint judges and justices. Consequently, many of those who aspired to be appointed to or promoted in the judiciary kowtowed to the dictator. Judges and Justices were beholden to the President who did not hesitate to wield his undue influence over them. Judicial independence was an illusion. 

All these went against the grain of democracy. The reason behind the effectivity of three separate great branches of government (namely: the executive, the legislative and the judiciary) is precisely to disperse governmental powers. The configuration is designed so that each branch can check any abuse committed, being committed or may potentially be committed by the other branches. Concentrating power or almost all the powers of government only in one branch (directly or vicariously) leads to a monarchial kind of authority that is absolute and unconditional.

And to further assure President Marcos' "fear factor" over the citizenry, the 1973 Marcos Constitution did not limit the power to issue a warrant of arrest to the courts unlike in the 1987 Freedom Constitution. The power was also granted to any "responsible officer authorized by law." The President, exercising his legislative powers, can authorize the Secretary of Defense or even a mere bureau chief to issue a warrant. In fact, this power was much abused such that the proliferation of Arrest Search and Seizure Orders (ASSO) happened. People were just arrested even without probable cause determined by the courts. 

Also, the 1973 Constitution allowed the suspension of the writ of habeas corpus – where people can be detained without charge or trial – and the imposition of Martial Law for a limitless period as determined by the President without any check from the legislature. Worse, the basis of the imposition can be highly subjective as when the President believed that invasion or rebellion was "imminent". How imminent was imminent? The 1973 Constitution did not define it. It all depended on the President. 

Under the 1987 Freedom Constitution, suspension of the writ of habeas corpus and declaration of Martial Law can only be made when there is actual invasion or rebellion when public safety requires – an objective basis. The President's belief of the imminence of such situations happening – which is very subjective and prone to abuse – is not a ground. And even in case Martial Law is imposed, Congress can rescind it. Should Congress and the President agree to its imposition, the Supreme Court can void their decisions upon a meritorious petition from a taxpayer. And under the 1987 Constitution, the suspension of the writ of habeas corpus can be questioned in court which can grant bail for the provisional release of the detained.

Then, under Section 17 Article 15 of the 1973 Marcos Constitution, the dictator Marcos made himself immune from suit for all acts he did for as long as they were "official". And Marcos cannot be sued even after his term. Considering that he can enact laws by himself, Marcos can make a crime "official". For example, any technical malversation of government funds can be legitimized as "official" by a Presidential Decree – which "forms part of the law of the land" – issued by no other than the person guilty of malversation, the President himself. Also, billions of money diverted from the national treasury to private foundations can be validated as "official" and therefore cannot be subject of a suit, whether administrative, civil or criminal. This gave the dictator Marcos the power to make himself legally God-like incapable of doing anything wrong, much more criminal – a clear badge of despotism. Simply put, there was total impunity. 

For the dictator, there was only rule of law for the citizens but not for him, He was above the law as he was the law who can make, change and repeal the law anytime he wished. The consequence was the unprecedented grave and horrible abuse of power and authority, resulting to accumulation of ill-gotten wealth amounting to billions of dollars and "summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986" as recognized by Republic Act Number 10368, otherwise known as the "Human Rights Victims Reparation and Recognition Act of 2013".

According to Fr. Joaquin Bernas S.J., President Corazon Aquino, after the February 1986 revolution, could have decided just to use the 1973 Marcos Constitution during her term as President. But she did not. She knew its autocratic nature. So she decided that a new constitution should be presented to the people and ratified. 

President Cory Aquino selected brilliant minds such as, among others, constitutionalist Fr. Joaquin Bernas SJ, former Supreme Court Justices Roberto Concepcion and Hilarion Davide, former Justices Cecilia Munoz Palma and Florenz Regalado, former Senator Ambrosio Padilla, former Secretary of Labor Blas Ople, and labor leader Jaime Tadeo, to draft a new constitution . The outcome was the 1987 Freedom Constitution – a legal and political document affirming the people's revulsion to any form of autocratic rule. It likewise ensured the freedom of the press, speech and association, among others, and put importance to accountability and human rights. 

Now, President Duterte intends to amend the 1987 Freedom Constitution and for this he has opted for a constitutional assembly, made up of politicians in Congress, to do it. If this pushes through, let us hope that they know what they will be doing. Likewise, Duterte's strong-arm character, his fondness of Martial Law, his friendship with Ferdinand "Bongbong" Marcos, Jr. and most of all, his admiration of the dictator Ferdinand E. Marcos whom he publicly said was "the brightest among the past Presidents", are also serious concerns. 

Let us all be vigilant. The present 1987 Constitution does not need amendments when it comes to our civil liberties, limitation of governmental powers, public accountability, and the advocacy of human rights. It is not the present Freedom Constitution which is the problem. It is the people, particularly government officials, who pervert, ignore, or disregard the Constitution who are the problem. 

We must remember that the 1987 Freedom Constitution was not just a document simply to forget a by-gone-Marcos-era. It is about lessons from the dark side of that history, learning from them and not standing idly-by to let others, especially those in government today, repeat them.

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