• DU30’s Day of Protest

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    FRANCISCO S. TATAD

    FRANCISCO S. TATAD

    AFTER threatening to place the entire country under martial law or declare a revolutionary government, should untoward incidents mar the planned leftwing protest marches on the 45th anniversary of Ferdinand Marcos’ proclamation of Martial Law tomorrow, President Rodrigo Duterte has apparently decided to lead the commemoration by suspending work and classes all over the country and inviting everyone to join what he called a “Day of Protest” rather than an official holiday.

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    It is not clear what DU30 would be protesting against, since the most vehement protest currently on the road is against his extra-judicial drug killings and naked violations of human rights, recently capped by the House of Representatives’ decision to deprive the Commission on Human Rights of its P678-million proposed appropriation for 2018. But DU30’s latest statement allows him to sidestep his previous pronouncement.

    Does this mean DU30 has withdrawn his threat to declare martial law nationwide or a revolutionary government? I fervently hope so, but this has to be sufficiently spelled out. The threat to extend to the entire country the martial law proclamation and suspension of the privilege of the writ of habeas corpus, now in force in the whole of Mindanao until December 31, has already provoked all sorts of wild speculation and stressed us out. The fact that we have not been invaded by a foreign power and that there is no nationwide rebellion to justify a nationwide martial law clampdown, has not prevented people from being jittery after hearing the President.

    Under the Constitution, martial law does not suspend the operation of the Constitution, nor abolish the civil courts or Congress. But given DU30’s makeup and inclinations, there is no assurance that something will not happen just because the Constitution says it should not happen. So much is already happening. Under the guise of waging a war on drugs, DU30 has launched a vicious war on human rights, which targets those who denounce state violations of human rights rather than those who violate human rights.

    The CHR crisis
    In an act of sordid arrogance, stridently defended by self-righteous but ill-informed defenders, DU30’s power-drunk lackeys and sycophants in the House decided to defund the constitutionally ordained CHR for being critical of the extra-judicial killings, by slashing its proposed P678-million budget to a ridiculous P1,000. Then DU30 pitched in by assassinating the character of its chairman, Jose Luis Martin Gascon, calling him “gay” and a “pedophile” for talking about the rights of minors who had been killed by the police.

    Indeed, Gascon should have talked more about the rights of the 14,000 or more reported to have been killed to date. One cannot be selective in denouncing crimes against human rights. In many countries of the world today, calling a gay man gay with particular umbrage is considered hate speech and punishable under their laws; in our jurisdiction, calling someone gay whether he is gay or not is plain and simple slander, even when the crime is committed by a foul-mouthed high official, who is immune from suit.

    Obviously, DU30 does not need martial law to indulge these excesses. He only needs to be himself. But if a nationwide martial law is no longer in the cards, is revolutionary government also out? The public has a right to know. DU30 seems to believe he could declare a revolutionary government even without an actual invasion or rebellion, and even if the public safety did not require it, just because he believed he could get away with it. We would appreciate being told of his latest brainstorm on this.

    Limited government
    DU30 needs to understand that the Constitution gives him every lawful authority and power to function as president, but that of a limited government. The term “limited government” is normally well understood by those who dare aspire for any high office. In a constitutional government, the President’s mandate is to lead, to preside over the government, not replace it with himself. Every part and organ of government has a role to play, so the entire government must function as the sum of all its parts, not as a mere appendage of its head. The President’s first duty is to preserve, protect and defend the Constitution so he could continue exercising his lawful authority and power. But the Constitution is the first thing he destroys if and when he declares a revolutionary government.

    The current confusion and controversy over the CHR budget provides DU30 an opportunity to take a deeper look into the Constitution, and see how it has worked or failed to work as a check on government and as a protector of people’s rights. We welcomed the creation of a Commission on Human Rights as a noble and necessary innovation, despite its controversial beginnings when gender feminists and the homosexual lobby equated “human rights” with the so-called “right of women,” judicially consecrated by the US Supreme Court in Roe v. Wade, to destroy the unborn child inside their womb.

    Where Cory failed
    But the Cory government failed to provide the proper implementing legislation to this initiative. And until the current House decided to punish the CHR for its critical stance on the extra-judicial killings, every other succeeding administration blindly ratified and repeated Cory Aquino’s constitutional misdemeanor or mistake. Whatever her motive, Cory Aquino issued Executive Order 160 on May 5, 1987 to formally constitute the commission, after she had lost the authority to legislate, which she used to exercise from February 25, 1986 to February 2, 1987 as revolutionary president. Four administrations followed hers, but no one noticed what the Constitution says.

    Sections 17 and 18 of Article XIII create the CHR, and define its powers, functions and structure. But the term of office and other qualifications and disabilities of its Chairman and four Members have to be defined by law, according to Sec. 17. Since EO 160 did not have the force of law, it was therefore null and void ab initio. But nobody noticed until DU30’s minions decided to strike back at Gascon for daring to criticize the extra-judicial killings. How do we now correct 30 years of repeated illegal funding because of this constitutional offense? Whom do we hold accountable for it? The problem is far more complicated than we thought.

    Remarkable is the zeal of those who are able to simplify matters and reduce the issue into a simple conflict between Gascon and the President and the House. It goes far beyond this. The CHR, as a noble vision of the Constitution, rather than the CHR as a creation of Cory Aquino’s flawed executive order, is the real victim here. The real culprit is the Cory administration as well as every other administration that blindly ratified and repeated her misdemeanor or mistake.

    More egregious offense
    For Cory Aquino, though, this is not a solitary offense. The same Aquino administration is guilty of a far more egregious constitutional offense, one which goes into the validity of her six-year term of office. Again, this is something which nobody has raised before the Supreme Court, the legal or academic community, or the bar of public opinion. But it is timely that this enter our discussion on the eve of massive protests that could once again focus on the long dead Marcos.

    Section 5 of Article XVIII of the 1987 Constitution provides: “The six-year term of the incumbent President and Vice President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.” Cory Aquino and Salvador Laurel used this provision to occupy the presidency and the vice presidency, respectively, for the next six and a half years.

    But if you parse that provision carefully, there is no way it could be understood to refer to Cory Aquino and Laurel, who both lost to Ferdinand Marcos and Arturo Tolentino, respectively, in that election. Marcos and Tolentino were the only ones officially proclaimed by the Batasang Pambansa as having been elected “President” and “Vice President,” respectively, in that election. The EDSA uprising ousted Marcos after he had assumed office as the newly reelected president, and the US Air Force flew him and his family to Hawaii, but the official record of his election was never revoked in favor of Aquino.

    So, if the Constitution had meant to sit Aquino for the next six years, after the end of her tenure as revolutionary president on February 2, 1987, the relevant provision should have read something like this: “The person who assumed the presidency on February 25, 1986 as revolutionary president shall continue in office for the next six years until noon of June 30, 1992.” There would have been no question about Cory’s legitimacy, despite her never having been elected to the office. All this is now water under the bridge.

    DU30 and the commies
    But as the communist Left leads tomorrow’s marches, someone could ask about DU30’s actual relationship with the CPP/NPA/NDF. He has named communist party members to his Cabinet, even without a peace agreement, and although Judy Taguiwalo and Rafael Mariano have been rejected by the Commission on Appointments, Cabinet Secretary cum National Democratic Front (NDF) vice chairman Leoncio Evasco Jr. is virtually running DU30’s entire government, and the remaining communist appointees, beginning with Liza Masa of the National Anti-Poverty Commission, several undersecretaries and agency heads remain deeply entrenched. Even the official panel in the on-and-off “peace talks” in Oslo appears to be heavily influenced by the NDF.

    The one lingering question in people’s minds, including the military, appears to run like this: When DU30 flirts with the idea of declaring a revolutionary government, is he thinking of it as a way of cutting off his ties permanently with the CPP/NPA/NDF, or is it a way of cementing those ties and finalizing a coalition government?

    fstatad@gmail.com

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