Pendulum swing

(Concluded from Sept. 24)

CANBERRA—During the first leg of his trip to Europe, President Benigno Aquino III unburdened to a group of German businessmen in Berlin his concerns about the “overreach” of the Supreme Court’s review power.

He said he was seeking a “healthy compromise” with the high court on when it should use its power to review the actions of the other two branches of government (the executive and legislative). “What we are envisioning in this dialogue is to find that healthy compromise that gives them power to provide check and balance, but doesn’t tend itself to want to use a power that is very strong, very powerful,” he said. Such a power is supposed to be used “with restraint … but was being used too much.”

He apparently referred to the high court’s unanimous decision that struck down as unconstitutional portions of the administration’s Disbursement Acceleration Program, the source of pork barrel funds for public works projects nationwide, and warned of a possible “collision” with the executive branch.

Aquino’s speech depicted the executive branch as weak relative to the judiciary. In overstating his case that exaggerated the high court’s power of review in the DAP case—which has come under heavy domestic criticism as a mechanism through which he has attempted to consolidate his already formidable executive powers and to establish an alleged “fiscal dictatorship” without declaring martial law—Aquino said judicial review was hardly used during the martial rule of Ferdinand Marcos (1972-1986).

“It seems that we have swung from one end to the other extreme, wherein before they didn’t want to interfere whatsoever, [but] now, it seems they feel compelled to interfere in everything,” Aquino said. He then said he was open to proposals to amend the Constitution, if only to limit the power of judicial review.

In mentioning martial law, the President stood historical records on their head. His speech in Berlin came in the midst of the commemoration of the 42nd anniversary of Marcos’ declaration of martial law in September 1972. The Aquino administration released on that occasion excerpts of Marcos’ diaries, which detail his plans to put the Philippines under martial law and to establish a dictatorship. The diaries reveal Marcos’ acts that dismantled the entire institutional structures that underpinned Philippine constitutional democracy, including an independent Supreme Court and legislature and a free press.

Within the few hours between Marcos’ signing of Proclamation No. 1081 (he moved the date to Sept. 21, which is divisible by his favorite number 7) and his announcement on national television of the martial law decree on Sept. 23, Congress was padlocked, newspapers and radio-TV stations shut down, and individuals on target lists arrested, including journalists, opposition politicians, and activists from the Left, in one of the swiftest seizures of state power by a sitting government in the Third World in the postcolonial era.

Aquino’s attack on the Supreme Court of supposed overreach in the exercise of its power of review was out of context and did not capture the reality that its intervention in the DAP case “paralyzed” the presidential economic initiatives. On the contrary, there is more to be alarmed in the President’s admission that he is open to proposals to extend his term beyond 2016, through an amendment of the Constitution’s provision on term limits. The admission highlighted the issue of term extension on the agenda as he entered the last two years of his presidency.

The Marcos diaries recall how the dictator tried to subvert the high court to avert it from being used by martial law victims to review the constitutionality of Proclamation 1081. Jose Diokno, Max Soliven, Chino Roces, and others taken in the first round of arrests filed a petition with the high court for a writ of habeas corpus. On Sept. 24, 1972, a Sunday, Marcos wrote in his diaries: “I asked Justices Claudio Teehankee, Antonio Barredo, Felix Makasiar and Felix Antonio to see us. They insisted that the government should submit to the Supreme Court for the court to review the constitutionality of the Proclamation. So I told them in the presence of Secretaries Juan Ponce Enrile and Vicente Abad Santos and Solicitor General Estelito Mendoza that if necessary, I would formally declare the establishment of a revolutionary government so that I can formally [reverse] the actions of the Supreme Court. They insisted that we retain a color of constitutionality for everything. But I feel that they are still image building and do not understand that a new day has dawned.”

According to Philippine Diary Project documents, which include the Marcos diaries, on Sept. 25, 1972, Marcos continued to stare down the Supreme Court—and to express satisfaction with how everything has turned out. On that day he wrote: “Public reaction throughout is welcome to martial law because of the smooth establishment of peace and order and the hope of a reformed society. In fact, most everyone now says this should have been done earlier. It is indeed gratifying that everyone now finds and discovers I am some kind of a hero. There is nothing as successful as success!”

On the same day, Marcos met Justices Fred Ruiz Castro and Salvador Esguerra for consultation. He wrote: “I told them frankly that I needed their help and counsel because we must keep all actuations within constitutional limits. Justice Castro asked, ‘Is this a coup d’etat?” And I told him that it is not but it is an extraordinary power of the president for a situation anticipated by the Constitution. Justice Esguerra said immediately that he feels that it is legitimate exercise of martial law.”