Constitutional history

The Philippines had long been used as a trading port in Asia, and this led to their colonization by the
Spanish and later by the Americans. The Spanish converted most of the population to Catholicism and
the religion remains the dominant one in the country. During the later part of more than 300 years of
Spanish rule, nationalist sentiment began to grow among groups of Indios (which was how the Spanish
referred to the Filipinos), fuelled in large measure by the writings of national hero Jose Rizal (later
executed by the Spanish authorities) and other ilustrados (the Filipino intellegensia). A revolution was
launched against Spain and the revolutionaries declared Philippine independence in Kawit, Cavite on
June 12, 1898. What became known as the Malolos Congress was convened on September 15, 1898 and
the first Philippine Constitution, called the Malolos Constitution, was approved on January 20, 1899,
ushering what is called the First Philippine Republic. In the Spanish-American War of 1898, the
revolutionaries sided with the Americans, hoping that, with the defeat of Spain, independence would be
granted by the US to the Philippines. This, however, did not happen. After Spain ceded (or sold) the
islands to the United States in the Treaty of Paris, the US immediately proceeded to brutally suppress
the Philippine independence movement.

In 1916, the US passed the Jones Act which specified that independence would only be granted upon
the formation of a stable democratic government modelled on the American model, not the French
model as the previous constitution had been. The US approved a ten-year transition plan in 1934 and
drafted a new constitution in 1935. World War II and the Japanese invasion on December 8, 1941,
however, interrupted that plan. After heroic Filipino resistance against overwhelming odds finally ended
with the fall of Bataan and Corregidor in 1942, a Japanese “republic” was established, in reality, a period
of military rule by the Japanese Imperial Army. A new constitution was ratified in 1943 by Filipino
collaborators who were called the Kapisanan sa Paglilingkod ng Bagong Pilipinas (Kalibapi). An active
guerilla movement continued to resist the Japanese occupation. The Japanese forces were finally
defeated by the Allies in 1944 and this sorry chapter came to a close.

Philippine independence was eventually achieved on July 4, 1946. The 1935 Constitution, which
featured a political system virtually identical to the American one, became operative. The system called
for a President to be elected at large for a 4-year term (subject to one re-election), a bicameral
Congress, and an independent Judiciary.

Independence to martial law

From the moment of independence, Filipino politics have been plagued by the twin demons of
corruption and scandal. Notwithstanding, Presidents Ramon Magsaysay (1953-57), Carlos Garcia (1957-
61), and Diosdado Macapagal (1961-65) managed to stabilize the country, implement domestic reforms,
diversify the economy, and build Philippine ties not only to the United States, but also to its Asian
neighbours.

Ferdinand Marcos was elected president in 1965 and was re-elected in 1969, the first president to be so
re-elected. Desirous of remaining in power beyond his legal tenure, he declared martial law in 1972, just
before the end of his second and last term, citing a growing communist insurgency as its justification. He
then manipulated an ongoing Constitutional Convention and caused the drafting of a new constitution –
the 1973 Constitution – which allowed him to rule by decree until 1978 when the presidential system of
the 1935 Constitution was replaced with a parliamentary one. Under this new system, Marcos held on to
power and continued to govern by decree, suppressing democratic institutions and restricting civil
freedoms. In 1981, martial law was officially lifted, but Marcos continued to rule by the expedient of
being “re-elected” in a farce of an election to a new 6-year term. He continued to suppress dissent and
thousands of vocal objectors to his rule either mysteriously disappeared or were incarcerated. Despite
economic decline, corruption allowed Marcos and his wife Imelda to live extravagantly, causing
resentment domestically and criticism internationally.

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Home / OPINION / COLUMNS / Eagle eyes by Tony La Vina

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.

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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.