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Passion For Reason : The tempting of the fed-up Filipino

First posted 02:14am (Mla time) July 08, 2005
By Raul Pangalangan
Inquirer News Service

Editor's Note: Published on page A12 of the
July 08, 2005 issue of the Philippine Daily Inquirer

"RESPECT the Constitution!" seems to be the most politically acceptable slogan of the hour. Yet history shows that our legal system has time and again shown its ambivalence to extra-constitutional change and, each time, we as a people have reacted differently.

Ferdinand Marcos governed under the 1973 Constitution, which was approved by a mere show of hands when we were under martial law -- woefully short of what the law required, namely, a proper plebiscite with appropriate safeguards. Yet the Supreme Court said, so what if it was illegal so long as the people have accepted the new Constitution? The sovereign people have spoken, who are we to stand in the way?

The Court asked: "If [the people] had risen up in arms and by force deposed the then existing government ..., there could not be the least doubt that their act would ... not be subject to judicial review .... We do not see [this] situation [to] be any different ..., if no force had been resorted to and the people, in

defiance of the existing Constitution but peacefully ... ordained a new Constitution."

Until Marcos was ousted at Edsa People Power I in 1986, the nation's liberals and democrats reviled this infamous decision as judicial capitulation, or in the polite language of the time, as too much "judicial statesmanship."

After Edsa I, however, the Court similarly invoked the "political question doctrine" to uphold Cory Aquino's government, but this time, the same liberals and democrats applauded with gusto. Cory promulgated her "Freedom Constitution," not by virtue of a plebiscite, but through the "direct exercise of the power of the Filipino people." The Supreme Court justices, all Cory appointees, found that she became president "in violation of the provisions of the 1973 Constitution as ... Mr. Marcos [had already been declared] the winner in the [snap] elections" and that her government was "revolutionary in the sense that it came into existence in defiance of existing legal processes"-but its legitimacy was "not a justiciable matter [but] belongs to the realm of politics where only the people ... are the judge."

Constitutionalism faced its next challenge at Edsa People Power II, where people power ousted a genuinely elected president, Joseph Estrada. Then-Vice President Gloria Macapagal-Arroyo could take over only in case of his death, permanent disability, removal via impeachment, or resignation. But Estrada was alive, able, not impeached, and had not resigned. The Court could have taken the path of least resistance and invoked the political question doctrine, exactly the way it did in the earlier cases. Or, the Court could have institutionalized people power unabashedly, and said that Estrada was "incapacited," not by sickness but by induced political paralysis through "withdrawal of support" by various centers of power in government, including the military and civil society.

But no, the Court held that, unlike Cory who was candid about the extra-constitutional character of her government, Ms Arroyo had assumed office snugly under the present Constitution. Thus, the rather creative version that Estrada had "constructively resigned" based not on his resignation letter but on the Angara diaries. Most telling however were the warnings by the other justices about the "hooting throng," the "innate perils of people power," and their "disquietude [that] the use of 'people power' ['an amorphous ... concept'] to create a vacancy in the presidency [can very well] encourag[e] People Power Three, People Power Four, and People Power ad infinitum."

I cited all these in a May 2001 lecture for the Supreme Court's Centennial, but I could not have imagined we would face the power of this prophecy so soon with Ms Arroyo's June 2005 "apology."

All the Sunday front pages in the major dailies showed wonderful photos of a reflective Gloria Macapagal-Arroyo, suffused in soft lighting in just the right hues and in the quiet of her study, doing what we all had longed for her to do: sit down and use her God-given talents to solve our country's problems. Her campaigners had denigrated her opponent as a high school dropout, and exalted her Ph.D. in Economics. If you voted for her because of her superior brains, congratulations; on Sunday, she finally sat down to use them.

Until then, she was content with photo ops, attending prayer rallies here, distributing goodies there. Government policies sounded fine on paper, but were hostage to politics in practice, negotiable at every turn, to pay for every political debt, or assuage each passing "tampo" [tantrums] by some loyal "trapo" [traditional politician]. And, as the Garci tapes reveal, no government office was too sacred for her will to power.

The Commission on Elections is an independent constitutional body, yet "Garci" could speak to "Ma'am" about rigging the vote ("'yung pinadagdagan ninyo" [those you had padded]). The Constitution speaks of a "professional" Armed Forces of the Philippines "insulated from politics," yet the tapes reveal names of officers made to act like faithful Mafia capos. Ah, yes, and that "dukut" [abduction] operation to prevent a witnesses from testifying -- that's straight from "The Godfather." Talk about devils quoting Scripture.

What exactly does the Rule of Law mean? It doesn't mean the mechanical application of rules. Rather it means governance through accountable institutions that can be held to respect our fundamental rights, including the sanctity of our vote. Uphold the Constitution, by all means, but don't use it as a refuge for waffling and fence-sitting. Uphold constitutionalism, by all means, just make sure you seize not upon "the letter that killeth but [upon] the spirit that giveth life."