Martial law and constitutionalism

Months ago, the president of Ateneo de Davao University, Fr. Joel Tabora, SJ, wrote a scathing piece, “Gang Rape of the Constitution,” railing against the aborted plan of Speaker Sonny Belmonte to amend “economic” provisions in the Constitution via a constituent assembly.

The dean emeritus of Ateneo de Manila Law School, Fr. Joaquin Bernas, SJ, urged the public to express deep “outrage” over this perceived constitutional subterfuge perpetrated by the Speaker and his cohorts in Congress.

Expectedly, politicians from all points of the spectrum, vigorously claiming to be speaking in behalf of a wary public, labeled this attempt at amending the Constitution as self-serving on the part of the Aquino administration and a betrayal of the public trust.

Such an impassioned response from academics and politicians alike invites reflection on how Filipinos actually relate to the 1987 Constitution.

The most basic test I can think of to assess the Filipino’s constitutional consciousness is to look at how Feb. 2 is commemorated. President Cory Aquino issued Proclamation No. 211 series of 1988 designating this date as Constitution Day, “in order to instill in the hearts and minds of the Filipino people the democratic principles and the noble and lofty ideals enshrined in the Constitution,” and “to give [them] the opportunity to consecrate and dedicate themselves to the Constitution and ponder on the significance thereof.”

I conducted an informal survey in my immediate community to determine the level of awareness about our nation’s Constitution Day. Sadly, the results reveal that we may have forgotten what Feb. 2 is all about. Practically all of the people I asked were not even aware of the significance of this date. An uncle of mine said it quite well: “The meaning of Constitution Day to many of our people is as murky as the polluted Pasig River.”

This regrettable realization about Filipino constitutionalism is particularly relevant in commemorating the declaration of martial law. The infamous case of Javellana vs. Executive Secretary underscores our profound disconnect to the Constitution.

Note that the Supreme Court in this case ruled that Ferdinand Marcos railroaded the adoption of the proposed Constitution in 1973. The citizens’ assemblies he organized, where the ratification of the proposed charter was determined by a show of hands, were declared improper and could not be the basis to legitimize a constitution.

In fact, the high court opined that this exercise was an absolute farce, not only because of its inherent inanity but, more so, because Marcos’ guns and goons were outside the halls where these assemblies were held—a scenario that obviously precluded any legitimate outcome arising from the process.

And yet, as Prof. Dante Gatmaytan-Magno wrote in his article, “Changing Constitutions: Judicial Review and Redemption in the Philippines”:

“In Javellana, a majority of the Supreme Court declared that the 1973 Constitution was not properly ratified. However, because the constitutional requirement of two-thirds of the Court voting to declare a law unconstitutional was not met, the Court also concluded that the new charter was already in effect. That decision allowed Marcos to govern under a dictatorship until he was forced out of office in 1986. Since that time, the Supreme Court has had to live with the realization that it became an accomplice to the emasculation of Philippine democracy. Many wonder if the Court will allow itself to be used in a similar fashion at some point in the future—or the present.”

Pertinently, Gatmaytan-Magno’s apprehension over the possibility that the Supreme Court will lose its constitutional fortitude again was affirmed by its recent decision in the case of Enrile vs. Sandiganbayan (GR No. 213847, Aug. 18, 2015) to allow an accused plunderer, Sen. Juan Ponce Enrile, to post bail.

The public was clearly dismayed by the high court’s preferential treatment of the veteran lawmaker. This dismay was exacerbated by commentaries from legal scholars showing that the decision actually ignored the parameters on the right to bail established in Section 13, Article III of the Constitution.

It is certainly justified to surmise that this penchant of the high court to display brazen irreverence toward the supreme law of the nation actually encourages the general population’s blasé attitude toward constitutionalism.

Indeed, there is no denying that Filipinos—from the avowed guardians of the Constitution to the self-ascribed “honorable” members of Congress to the everyday Juan dela Cruz—have a weak and vacillating commitment to be governed by constitutional rules and principles.

Despite our long and storied constitutional history, our capacity to live as a community according to constitutional tenets such as the rule of law, respect for human rights, the democratic process, and judicial independence still needs much improvement.

Scholars suggest that to engender constitutionalism, the polity must deliberately engage in robust and purposeful discourse on the constitutional issues of the day. Doing this will generate in the minds of the people the awareness and attachment to the Constitution necessary to facilitate utmost obedience to its provisions.

Therefore, it is in our best interest to put more effort in commemorating Constitution Day. Any aspiration of political reform will require a steely determination “to instill in the hearts and minds of the Filipino people the democratic principles and the noble and lofty ideals enshrined in the Constitution.”

In fact, bearing in mind our collective desire to progress from our political and economic situation, I believe more discussions, via both social and mainstream media, about constitutional tenets such as good governance, social justice, or the separation of church and state should be encouraged.

But I must clarify that I am not envisioning a one-sided, patronizing lecture from so-called constitutional experts. On the contrary, a genuine and respectful exchange of opinions on constitutional matters is the only scenario that can lead us to a strong sense of ownership over enforcing constitutional rules and principles.

Indeed, such a sociopolitical exercise is the only way to assure the polity that the next time a rally makes traffic on Edsa more infuriating than normal, it will not be as mindless and lamentable as the most recent one.

Michael Henry Ll. Yusingco, a practicing lawyer, is the author of the book “Rethinking the Bangsamoro Perspective.” He conducts research on current issues in state-building, decentralization and constitutionalism.