The Constitution is dead, are there any mourners?

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FRANCISCO S. TATAD

FRANCISCO S. TATAD

WE have not seen anything like this before. A combination of forces and a series of events have created so much instability within the nation, and put our people at the mercy of unreason in the hands of our power-driven politicians. In a healthy and normal democratic environment, issues are debated on the basis of moral, legal and rational principles, which define the common good, between the administration and the opposition, among reasonable men and women. In our present setting, the political opposition has been reduced into a daydream, a mere figment of the imagination.National decisions are imposed by an artificial “supermajority,” conceived in and sired by sheer opportunism and patent disregard for what is right and what is wrong. They expect everyone to submit to their weirdest official ideas without opposition or dissent.

The politicians vs the people

The Constitution has been destabilized. And it continues to be destabilized, not so much by the declared enemies of the state as by the current holders, custodians and stewards of state power who are otherwise sworn to preserve and defend it. In a normally functioning democratic order, the daily battle is waged between political parties and political players, never between the sitting politicians and the people. The latter is now the prevailing situation in our democratic disorder. The sitting politicians have become the real enemies of the people. This is not mere rhetoric; the evidence is overwhelming, except that it is far too dangerous for the faint-hearted to articulate their observations.

In this column, I have tried to speak the truth, no matter how unpleasant and uncomfortable to those in power, especially those who respond to what is unpleasant and uncomfortable with vile imprecations, physical threats and intimidations. The dangers and costs of saying what needs to be said have grown, but if we don’t say what needs to be said, and do what needs to be done, not many others—or perhaps nobody else—will. Through my 10 long years in the Cabinet, and 15 years in the Batasan and the Senate, I have never ceased being a public thinker, and the truth, God’s truth and man’s, has always been my North star.


In this most challenging time, one has no choice but to speak the truth that needs to be said despite the damning and damnable silence of the men and women who have been elected to proclaim the truth, and serve the law which we have long since antiquity as an ordinance of reason promulgated by those in authority for the common good. Indeed, despite the complicity of some friends. The risks are incalculable, and one could be left standing all alone. But unless we fight for it, the truth dies, and if it dies, civilization dies, and our reason for being dies.

A deep dark hole

As of today, we have fallen into a deep dark hole from which we may not be able to pull ourselves out, unless with God’s grace, we wake up from our deep slumber and decide to work together. We must look to the heavens for guidance, but we cannot expect any friendly outsider—not the US, not the UN, not the Europeans, not Human Rights Watch, not the International Court of Justice—to help us solve our problems. We have to face them as one people and one nation.

Ours is not a battle of arms but a battle of wits and wills, and the smallest and the most powerless among us must be prepared to use their very lives as their strongest weapon. Deprived of everything, our lives could indeed be our own weapon. The saints and the martyrs used their lives to become Christianity’s strongest strengths.

They provide us with the worthiest models. In the face of godless tyranny, we must be prepared to suffer and die for what we believe in. This means we must speak and live out our beliefs, our faith, in the face of all human degradations. Otherwise we shall continue living like sheep, believing in nothing.
From this, there can be no turning back.

The martial law question

On Wednesday, the two houses of Congress voted by a landslide to extend for one year the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in Mindanao. This was a constitutional question, which needed to be resolved on the basis of the Constitution. But 240 senators and congressmen voted overwhelmingly for it, and only 27 against, not because it had any irrefutable constitutional or factual basis, but because President Rodrigo Duterte wanted it, and had asked them for it.

Did it comply with the Constitution? In my inexpert opinion, it did not. But does it truly matter whether it did or did not? There’s the rub. They are in power and we are not.

Under the Constitution, the President as Commander in Chief, whenever necessary, may call out such armed forces to prevent and suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within 48 hours, the President shall report to Congress in person or in writing, and the Congress, voting jointly, by a majority vote of all its members, may revoke the President’s act. At his initiative, Congress may extend the proclamation after 60 days.

On September 5, 2016, DU30 issued a proclamation of national emergency in Mindanao on account of lawless violence. This remains in force to date. On May 23, 2017, while visiting the Russian Federation, DU30 issued Proclamation 216 suspending the privilege of the writ and proclaiming martial law in Mindanao for 60 days, after the IS-aligned Maute extremist group attacked the city of Marawi in Mindanao. The proclamation was questioned before the Supreme Court and was swiftly upheld by it. On July 23, 2017, at the end of 60 days, Congress renewed the proclamation until December 31, 2017.

Ending the siege

The siege of Marawi ended in November after the government, with valuable help from friendly governments, liquidated the Mautes, liberated and began the rehabilitation and rebuilding of Marawi City. As of today, Maute extremism, which DU30 saw as the equivalent of “rebellion” and became the original basis of the May 23, 2016 proclamation, has been defeated. The martial law edict is still there, but the reason for it no longer exists. Yet on December 13, before the five-month extension of the 60-day proclamation expired, Congress voted to extend martial law and the suspension of the writ in Mindanao until the end of 2018.

This was done without debate, and without those interested in being heard being allowed to explain their votes. A ready cure in search of a disease.

Before this, DU30 declared the Communist Party of the Philippines and the New People’s Army, although not the National Democratic Front, the communists’ broad political front, as “terrorist organizations.” He did this as he announced the end of the on-again and off-again peace talks with the CPPA/NPA/NDF in Oslo, Norway, and the resumption of armed hostilities with the CPP/NPA in the battlefield. The continuing CPP/NPA rebellion, which Marcos had invoked as the basis of his nationwide martial law and suspension of the writ in 1972, appears to have given DU30 a new reason for claiming that an armed rebellion exists not only in Mindanao but in other parts of the country.

This invites a big debate.

In 1957, the Anti-Subversion law outlawed the CPP and similar organizations. In 1992, this law was repealed to allow former communists to run for Congress as party-list representatives. In 2007, Gloria Macapagal Arroyo granted amnesty to members of the CPP/NPA who wanted to join the political mainstream. Under the Human Security Act, a competent regional trial court, upon recommendation of the Department of Justice, and after due hearing, may declare an organization a “terrorist org.” This means DU30 has no legal jurisdiction in declaring the CPP and NPA as terrorist organizations. He himself has named CPP central committee members to his Cabinet. The Cabinet Secretary who runs his Office of the President is vice chairman of the NDF.

Shameless impositions

What I find absolutely unacceptable and alarming is not simply the way the Constitution, the moral law and common decencies are abused and trivialized, but the way these men and women, who claim to sit in Congress because they were supposedly chosen by the people, seem to believe they can impose anything on us without any intelligent discussion, and that we would simply swallow everything from them, without a peep. They talk shamelessly of railroading the most complex proposals, like federalism and a new form of government, without discussing the basic principles and concepts, and without themselves understanding what they are trying to railroad.

They want to tinker with the Constitution, just because DU30 wants them to do it, without realizing that under that same Constitution, the President has no role to play whatsoever in amending or revising that basic document. And they are all eager to do it just because Congress may in fact propose amendments to the Constitution, but without realizing that most of the members of Congress have so discredited themselves when they abandoned their original parties to join DU30’s own borrowed party and place themselves inside his pocket or under his thumb; they have lost any right to speak for the people. What they need is a Lord Cromwell to send them home.

The act of Congress remains open to question. But the legal forum for that is the Supreme Court, and right now the court is being savaged in the media and the House of Representatives, where the committee on justice seems determined to pressure Chief Justice Ma. Lourdes Sereno into resigning, instead of acting full speed on the impeachment complaint against her and placing her fate in the hands of the entire House and the Senate later, if she is ultimately impeached. With so many justices now involved in the House committee play, there seems little chance the court will rule with impartiality on any issue involving DU30, on the basis of the Constitution.

Time for a break

The presidency is a mess, the Congress is a mess, and the Supreme Court is going too. This is why I say we have never seen anything like this before. It’s likely to get worse before it gets any better, and it will demand from us everything we could offer. I have long tried to contribute my modest share. Although no longer a sitting senator, I have taken a public position on the most important national issues far more than any sitting senator of group of senators. But after being in public life for more than 50 years, I have been asked by some younger members of my family to take a breather. I have therefore decided to give my readers a break this Christmas season and the New Year’s.

I have an old heavy coat for the cold Iowa winter, but the sweet embrace of four extremely gifted young grandchildren from two talented and beautiful married daughters should warm me even more. Away from the thankless job of trying to educate the not always educable on the use of dignified language and reason, I hope to revisit some old unfinished writings and give them a proper sendoff if possible, good health and a sane mind permitting.

This will be my last column this season and for sometime later.

fstatad@gmail.com

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