What constitutional crisis are you worried about? It’s already here

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FRANCISCO S. TATAD

FRANCISCO S. TATAD

THE reported Islamic State (IS) threat, real and hypothetical, has created serious national security problems, both real and imagined. The fighting in Marawi City, which is now on its third week and where the allegedly IS-linked Maute terrorist group has reportedly started using human shields, is just one of these. President Rodrigo Duterte has declared martial law and uspended the privilege of the writ of habeas corpus, not only within Marawi but throughout the entire Mindanao island group in response to the violence. But this has failed to curtail the upsurge of barbarity in the field.

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Reports of hostage-takings, and various atrocities, continue to pile up; one particular blog showing Maute vandals desecrating sacred images inside a Catholic church, which they later burned, has angered many Catholic Christians, and must have won for DU30 so much support in his fight against the Mautes. I have one friend who is asking his Catholic sisters and brothers to say as many acts of contrition on behalf of the vandals, but the general reaction is one of outrage and violent rage. This sentiment in the battle front, however, tends to be in stark contrast to that in constitutional and legal circles.

DU30 supporters are saddened that he is not doing his martial law proclamation and suspension of the privilege of the writ, according to Hoyle. If he believes this is the right response, they believe he should do it right. While the Constitution authorizes the proclamation and suspension in case of invasion or rebellion, when the public safety requires it, he, together with Congress, has refused to take the mandatory steps to complete and confer validity on Proclamation 216. This was issued from Moscow on May 23, 2017, while DU30 was visiting Russian President Vladimir Putin.

Section 18, Article VII of the Constitution provides that Congress (if not in session) must convene according to its rules, without need of a call, within 24 hours from the proclamation or suspension, and the two houses must sit as one to receive the report, which the President must submit in person or in writing within 48 hours from the proclamation or suspension. The Congress may then, by a simple majority vote of all its members, reject the proclamation or suspension, and the President may not set aside such action.

The Congress is now in session, but the Senate and the House of Representatives have refused to sit in joint session, for reasons known to themselves alone. Instead, they have tried to circumvent the Constitution by holding some kind of “committee hearings” on the proclamation, where not even the habitual political grandstanders cared to do any grandstanding.

Why are they so afraid?
Given DU30’s control of the “super majority” in Congress, is there any risk of a simple majority declaring Proclamation 216 without sufficient factual basis and nullifying it altogether? None whatsoever.

Is there any danger of a minority filibuster that could spill into the mainstream and social media and the streets? Perfectly within control, should it ever occur. The super majority could always gag any dissenter, as they have done before, by applying cloture.

Do the President and the Congress perhaps believe that Proclamation 216 hides more things than it reveals, and that the most innocuous and superficial discussion of it could invite unnecessary attention to some hidden details?

Or is it possible that in spite of their avowed support for DU30, the congressmen and senators do not really believe in Proclamation 216, and therefore do not want to put themselves in a position where after 60 days, they will have to recommend its extension for even longer?

The Constitution provides that upon the President’s initiative, the Congress may extend the proclamation for such period as it may determine, “if the invasion or rebellion shall persist and the public safety requires it.” But if the Congress had not approved the original proclamation, how could it be expected to recommend its extension?

This seems to be their only way out. In other words, the congressmen and senators are perhaps also thinking of their own political survival, in case they are not booted out and jailed for drug use or plunder and other high crimes, and have to run again. Can anyone blame them for thinking of their future?

Long past deadline
The 24-hour deadline for Congress and the 48-hour deadline for the President have long passed since Proclamation 216 was issued on May 23, 2017. The deadlines are absolutely mandatory and non-extendable, not subject to any conditions, or to the discretion of the President or the members of Congress. They may not be waived or postponed, except perhaps if the invasion or rebellion, which had prompted the proclamation, or some force majeure, prevents the Congress physically from meeting or the President from appearing before Congress or writing his report. Non-compliance with the mandatory requirements constitutes gross contempt, if not an act of rebellion against the Constitution and the State, by elected officials who have taken an oath to “preserve and defend the Constitution.”

It is an impeachable offense on the part of the President, and a grave punishable offense on the part of the members of Congress, who are not impeachable officers. In a more civilized jurisdiction, these lawmakers, if they are men and women of honor, have no other course of action than to withdraw from their offices and from public life altogether, having lost all sense of the law and the common good and the right to speak for any citizen.

Petitions galore
Two sets of petitions have been filed before the Supreme Court, which the Constitution expressly empowers, to review “the sufficiency of the factual basis” of the proclamation or suspension, upon petition by any citizen, and promulgate its decision thereon within 30 days from its filing.

The first set, filed by Representatives Edcel Lagman, Tomasino Villarin, Gary Alejano, Emmanuel Billiones, Teddy Brawner Baguilat, Jr., and Edgar Erice, questions the constitutional basis of the proclamation and suspension, which the President and Commander in Chief may resort to only in case of “invasion or rebellion, when the public safety requires it.” DU30 will have to show that the lawless activities of the so-called Maute group, which are presumably already covered by his September 2016 “proclamation of national emergency on account of the state of lawlessness,” have become the full equivalent of “invasion” or “rebellion,” which endangers public safety.

Unless that can be factually and legally demonstrated, there is reason to fear that Justice Secretary Vitaliano Aguirre 2nd would be sorely disappointed in his forecast that the petition is headed for the dustbin.

The second set seeks to compel the Congress to convene in joint session to receive the President’s report. The petition was filed by two groups, in two waves. The first wave includes former Solicitor General Florin Hilbay, former Senator Rene Saguisag, detained Senator Leila de Lima, former Human Rights Commission chair Loretta Ann Rosales, and former peace negotiator Alex Padilla. The second wave includes former Senator Wigberto Tañada, Manila Auxiliary Bishop Broderick Pabillo, Novaliches Bishop Antonio Tobias, Kalookan Bishop Emeritus Diogracias Iñiguez, Mother Adelaida Ygrubay of the Order of St. Benedict, Shanah Bulangis, and Cassandra Deluria.

This should be an open-and-shut case. There are no valid arguments against it.

Nothing to enforce
I was the first one to point out, and to repeat a few times, in this space, this naked constitutional violation. I am therefore pleased that so many outstanding men and women have taken it to court. It is quite plain that without the requisite approval of Congress, Proclamation 216 is incomplete and therefore constitutionally and legally unenforceable. It is void; there is nothing to enforce.

The measure DU30 has taken to contain the threats of Islamist extremism may have become more dangerous than the evil it is trying to contain. It has installed DU30 as a law unto himself and reduced the Constitution and the law into totally dead matter. Whatever martial law or suspension of the privilege of the writ DU30 is now trying to impose is just his own caricature of martial law, outside of the Constitution and bereft of any constitutional legitimacy.

The requirement for Congress to convene in joint session being mandatory, it should be followed gratuitously, especially by those who have taken a solemn oath to faithfully defend and preserve the Constitution. There should be no need for any other constitutional authority—not even the Supreme Court—to “compel” them to do so. It is a superfluity. Just as the Word of God is above the Church hierarchy, the Constitution is above the Supreme Court, and they should follow the Constitution before they follow the Supreme Court. But if they think nothing of trampling upon the Constitution, why should they bother to listen to the Supreme Court?

What if—?
Assuming the high court decides to “compel” Congress to follow the Constitution, and by some supernatural miracle the Congress, instead of foolishly protesting “separation of powers,” decides to convene in joint session within 24 hours after it is told to do so, what guarantee is there that DU30 would report in person or in writing to Congress on Proclamation 216? I have extreme difficulty imagining this possibility.

Does this mean the victorious petitioners should go back to the Supreme Court and ask the justices en banc to compel DU30 to appear? Encouraged by their initial success with Congress, the magistrates could very well decide to ask the President to follow the law. But he has already declared he would not allow Congress or the Supreme Court to meddle with his handling of martial law. What chance is there of a supernatural miracle occurring to change his mind and his rhetoric on this issue?

Unaccountable naked power
But that would mean a major constitutional crisis, protests an astounded and unbelieving young student of the law.

Constitutional crisis, my eye! This is not a chastisement of the gods which we must prepare for on the final reckoning day. This crisis has long arrived, and we see it stretched in its full dimensions before our very eyes, right here and now. The moment the President and Congress decided to brush aside the mandatory impositions of Section 18, Article VII of the Constitution, while declaring that martial law had been proclaimed and the privilege of the writ suspended for 60 days all over Mindanao in order to fight the IS, and that the proclamation and suspension could even be extended all over the Philippines, the constitutional crisis made a landfall as big as Yolanda’s and became the biggest elephant in the room.

The rule of law is gone, the Constitution is in tatters, the means taken to deal with extremists has become more fearsome than the extremists themselves, and the quest for solutions to our unimaginable problems has become a convenient excuse for the strongman to reach out far beyond his lawful grasp, for unaccountable naked power.

fstatad@gmail.com

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10 Comments

  1. Only President Duterte may lift the Martial Law with the advice of our soldiers in Mindanao. Politicians discussions about lifting the Martial Law is irrelevant since they don’t see what is happening in the ground. Politicians from other parts of the archipelago should just listen to their colleagues from Mindanao.

  2. pablo sanchez on

    who questioned and opposes the martial law? the oppositions and the bishop who are far from marawi as if they can do something to maute and tell them to go away without harming civilians there. those who opposed are those who want to put their fake and incompetent vp as a leader.

  3. Amnata Pundit on

    I am always thankful every time my comments are rejected as it tells me that I hit a nerve and that gives me an insight into how the writer’s mind really works. If this constitution that you have dissed so many times in the past is suddenly junked by this administration for being woefully inadequate- or for being the obstacle- in defending the country against these animals called ISIS, how many people do you think will care? Duterte got 16 Million votes (without smartmatic help) while his opponents – with lots of smartmatic help – got how many? Is your objection to everything that Duterte does merely a reflection of the refusal to accept the results of the election ? Don’t you agree that too much intellectualism ( an acquired trait) can ruin one’s instinct for self preservation ( a God given trait) ? That is why a lawyer’s logic is sometimes called Lucifer’s Logic because the devil works through the mind while God works through nature (instinct, or the things you were born with). Try this diabolically cute legalistic nitpicking exercise: Congress’ refusal to convene is a demonstration of their approval of Duterte’s martial law. Did I hit a nerve again?

    • Danny Cascolan on

      It should fall under a defacto meaning, a pseudo derived government since the election results were massively manipulated. But you won’t understand if computer systems integrity checks are alien to you.

  4. Where are the brilliant minds in the Philippines, where are the good people of the churches , where the youth and the students who fought and fighting for freedom and justice,where are those generals who vowed to protect the people and Constitution ,,, are they all scared by one man ?

  5. With the Generals and 80% citizens supporting Duterte. The Congress and SC is irrelevant.

  6. Adolf D. Roa on

    If you read the Philippine Constitution, the pertinent provisions are so easy to understand.

    Why did Pimentel and Alvarez fail and refuse to understand them?

    The answer, they have no balls.

    What then should Duterte do?

    He should also violate the Constitution, abolish the inutile Congress and the Supreme Court and plead to China to conquer the Philippines.

    Tapos kayo lahat dyan sa Pilipinas.

    • The Great Defiant on

      you seems like more knowledgeable than DU30.
      If our current Constitution failed to protect our people, then we have to draft a new one. No one will ever conquer us, history proves that.
      and don’t worry. if we were able to survive the 30 years of LP, oligarchs running this country like rag-tags but I can tell you we can rise to the occasions if given the President DU30 and you will never be around to witness it.

      and if we do, don’t comeback to the Philippines anymore, ikaw dyan ka na matapos sa ibang bansa, get it?