Weakened presidency

To be sure our people would never again experience the horrors and torments of authoritarian rule, the 1987 Constitution fortified the legislature, empowered the judiciary, institutionalized people power, and weakened the presidency.

Constitutional authoritarianism. Ferdinand Marcos did not set aside the 1935 Constitution when he declared martial law and made himself dictator. Quite the contrary, he used its provisions to proclaim what he termed as “constitutional authoritarianism,” which is as much an oxymoron as a “constitutional coup d’etat.”

Marcos argued that under that Constitution, “in case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, [the president] may … place the Philippines, or any part thereof, under martial law.”

That provision was short, bare and vague enough to allow Marcos to abolish Congress, subdue the Supreme Court, close the newspapers and radio-TV networks critical of him, and take absolute control of the military and the police.

To prevent another Marcos, the 1987 Constitution imposed several limitations on the martial law powers of the president, such as: (1) it allowed only two grounds—invasion or rebellion (and deleted insurrection and “imminent danger thereof”);

(2) the duration shall not exceed 60 days, after which it is automatically lifted; (3) within 48 hours after the proclamation of martial law, the president shall report his action to Congress, which must convene within 24 hours; (4) once convened, Congress may, by majority vote of all its members, voting jointly, revoke the proclamation, or by the same vote and manner, extend the proclamation for a period determined by Congress; (5) the action of the president and Congress shall be reviewed by the Supreme Court upon petition by any citizen; and (6) the Court must decide the challenge within 30 days from its filing.

Inspired by Ninoy. With such severe limitations, “constitutional authoritarianism” is no longer possible; the only way to impose dictatorship is to abolish or suspend the Constitution via a naked coup d’etat.

My limited space prevents me from discussing many other severe restrictions on the president’s powers. Suffice it to say now that:

• The limits on the power of augmentation (which P-Noy calls Disbursement Acceleration Program or DAP), especially the prohibition on cross-border transfers, was inspired by P-Noy’s father, the martyred former senator Benigno Aquino Jr., who wanted to bar Marcos (prior martial law) from transferring executive appropriations to Congress to augment the allowances and other benefits of legislators during election seasons.

• These severe restrictions on presidential prerogatives were used by P-Noy’s mother, President Corazon Aquino, in her campaign for the ratification of the 1987 Constitution, which our euphoric people overwhelmingly ratified.

Ways to regain strength. The weakening of the presidency by the 1987 Constitution led all post-Edsa 1 chief executives—Fidel V. Ramos, Joseph Ejercito Estrada, Gloria Macapagal-Arroyo and Benigno S. Aquino III—to find new ways to persuade Congress and the Supreme Court to support their programs.

On the legislative front, the weakened presidents formed grand coalitions, sometimes by using the various versions of the outlawed Priority Development Assistance Fund (PDAF) and now the DAP, which, though not declared unconstitutional, was nonetheless constitutionally canalized by the Supreme Court.

Legislative coalitions became fashionable because the old two-party system was outpaced by the multiparty scheme and the confusing

party-list (a feature of parliamentary governments which our framers included in our presidential system as an “experiment”) instituted in the new Constitution.

The coalitions, particularly in the House of Representatives, are really alliances of convenience for new presidents to push their legislative agenda, and for the legislators to secure benefits for their constituents. For indeed, our people judge their legislators not so much for their law-making prowess as for their ability to dole milk and honey.

Unlike the old two-party system, these coalitions are fragile; they break up every election season, only to be reborn and to cuddle up to a new president who spreads more political grease than the last. Sadly, patronage and personalities have replaced principles and platforms as the weapons of political supremacy.

Conscious of the enormous powers conferred by the 1987 Constitution on the judiciary, every new president lusts to control the Supreme Court, through (1) the power of appointment, which the Charter also restricted by allowing the president to select only from a list of at least three nominees prepared by the Judicial and Bar Council (which is chaired by the chief justice); (2) the power to initiate the judicial budget (which Congress cannot increase); and (3) the stick of impeachment wielded by a cooperative Congress.

Finally, every president must cope with public opinion energized by TV-radio networks, newspapers, and social media. Truly, the 1987 Constitution often frustrates well-meaning chief executives from moving the country speedily forward.

But I believe this is the democratic path our people have chosen. Constitutionality, accountability, transparency and collegiality, our officials must learn to live and work with to attain freedom and food, justice and jobs, peace and progress, democracy and development, liberty and prosperity.

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