On Martial Law and Charter Change 1

On Martial Law and Charter Change

Atty. Michael Henry Ll. Yusingco, LL.M

Posted at Sep 21 2018 03:42 PM | Updated as of Sep 22 2018 06:22 PM

The late President Corazon Aquino issued Proclamation No. 211 series of 1988 designating February 2 as Constitution Day. 

The purpose of establishing this special day is as follows—

“WHEREAS, 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, it is but fitting that a day be set aside as CONSTITUTION DAY to give the Filipino people 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 February 2 should be 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 unravels plenty on our profound disconnect to the constitution. 

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

In fact, the 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 which obviously precluded any legitimate outcome arising at all from the said process. 

And yet, according to Professor Dante Gatmaytan-Magno 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.”

Sadly, recent decisions of the Supreme Court have done little to allay the public’s perception of the high court’s capability for brazen irreverence towards the supreme and paramount law of the nation. Pertinently, this deep mistrust pervading in the community has always been an insurmountable hindrance to charter change. 

I distinctly remember three years ago, the President of Ateneo de Davao University, Fr. Joel Tabora, SJ, wrote a scathing piece, Gang Rape of the Constitution, railing against the plan of then Speaker Sonny Belmonte to amend “economic” provisions in the Constitution via a constituent assembly.

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

Expectedly, politicians from every nook and cranny of the political spectrum, strongly claiming to be speaking on behalf of a wary public, labelled this attempt at amending the constitution as self-serving on the part of the Aquino administration and a betrayal of the public’s trust.

We are again seeing such impassioned response from academics and politicos alike to President Rodrigo Duterte’s plan to revise the 1987 Constitution to implement the shift to a federal system of government. 

The reality is 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 a lot of improvement.

Constitutional 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 generates in the minds of the people the awareness and attachment to the constitution necessary to facilitate utmost obedience to its provisions.

I must clarify though that I am not envisioning here 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 our desired outcome of having a strong sense of ownership over enforcing constitutional rules and principles.

According to Prof. Adrienne Stone, Director of the Centre for Comparative Constitutional Studies at the Melbourne Law School, “Constitutions ─ whether they self-consciously set out to transform a society or not, shape the government and the nation. So we need to understand how they work in practice to really understand them.” 

Hence, to make the constitutional review process initiated by the administration truly robust, we should deeply reflect on our national charter and actively participate in any hearings and consultation sessions initiated towards this end. 
But the administration must be reminded as well that plans of “fast-tracking” charter change will only remind us of Martial Law and how it gave life to the 1973 Constitution which then provided the color of legitimacy to President Ferdinand Marcos’ 14-year dictatorial regime. Indeed, such a move will only elicit strong resistance and can lead to chaos and discord, a dire situation we have known and left behind 31 years ago.


The author teaches law and is a non-resident research fellow at the Ateneo School of Government. His expertise is on State-building, decentralization, and constitutionalism. 

Disclaimer: The views in this blog are those of the blogger and do not necessarily reflect the views of ABS-CBN Corp.