Hyper-presidentialism in the development of the Philippine Constitutions

PROJECT TEAM Editor-in-Chief Atty. Carlo Brolagda Writers Alenah Romero and Franco Dominic Quilatan Layout Design Trina Baclayo

This study was produced by the Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. 13 Matipid St., Brgy. Sikatuna Village, Quezon City Email: go4ideals@gmail.com Website: www.ideals.org.ph

FOREWORD The President of the Philippines amasses great power. The Philippines has seen its fair share of Presidents who have either used or abused this power to further their own political agenda and self-interest. For years, the Philippines was placed under Ferdinand Marcos Sr.’s dictatorship, putting the whole government under a one man-rule and suppressing all sorts of dissent from the citizenry. The absolute power that was placed in one man resulted in economic hardship brought about by crony capitalism and ill-gotten wealth. Along with it came countless violations of human rights, killings, enforced disappearances, torture and arbitrary arrest of thousands of people. This happened simply because the power of the President was left unchecked by other institutions and was further legitimized by the 1973 Constitution that the Marcos’ administration promulgated. It finally ended with a people power revolt that forced the Marcos family out of the country.

Decades after, though, in 2016, we saw the rise of yet another strongman, President Rodrigo Duterte. He espoused a deadly policy of War on Drugs. He was able to put this policy into action with the consent of all other government branches and instrumentalities, crushing and silencing opposition along the way and even demonizing the concept of human rights in the process.

Despite a constitutionally mandated system of checks and balances, President Duterte faced little to no opposition. He was not the first to exploit our system of governance to work according to whim. As it appears, undermining of the system of checks and balances has become a norm for leaders since the Republic of the Philippines came into being.

It is often tempting to view the Marcos dictatorial regime as merely an isolated case. The paper reveals, however, that the consolidation of power in the president is one that is inherent in the design of the Philippine Republic. As such, the rise of Duterte’s authoritarian rule is not one that is so surprising at all.

The Initiatives for Dialogue and Empowerment through Alternative Legal Services (IDEALS) has been heavily involved in documenting the various human rights violations resulting from Duterte’s War on Drugs and giving legal assistance to the families it left behind. The organization’s paper contributes to the growing literature on constitutional development studies in the Philippines from a perspective that shows gaps in its legal provisions and allow for power to be abused, taking notice of how socio-political and cultural factors play a huge role in maintaining the status quo. This paper is presented in the hope of addressing the needs and seeking justice for people who were adversely affected by such abuse of power. It also postulates measures to achieve non-recurrence. The study becomes more important in the light of yet another looming hyperpresidential, authoritarian administration with the election of another Marcos into the presidency.

Joey Faustino President, Board of Trustees IDEALS, Inc.

CONTENTS

I II

Introduction Pages 1 - 3

Historical Development of the Philippine Constitution Pages 4 - 26 1935 Constitution 1973 Constitution 1987 Constitution

III IV

Identified Gaps Pages 27 - 28

Conclusion Page 30

Presidential Museum and Library PH

INTRODUCTION The Constitution is the highest law of the land. It takes precedence over any statute, judicial precedent, or government regulation. It is what, supposedly, encapsulates the will of the sovereign people–a social contract whereby people surrender certain freedoms for the development of state and society. The manner and design in which a state’s constitution is drafted, ratified and enacted considerably dictates the state’s interaction with the many forces present in a society.

The constitution is but an instrument ideally to achieve the hopes for a better society. It is thus necessary to examine the instrument that influences and structures the relationship between the government and its people.

The Filipino people have rewritten this social contract with its government for a total of three times. The development of these three constitutions signify important points in the history of the country. The 1935 Constitution marked the independence of the Philippines from colonial forces.

The 1973 Constitution was crafted during the time of dictatorship. Lastly, the 1987 Constitution was paved through the ultimate exercise of people power. More than 3 decades after, and with the looming return of neo-dictators and oppressive regimes, it is necessary to examine how the constitution has stood through the test of times. Has it served the ends it had hoped to achieve or has it done otherwise?

The Philippine Constitution has undergone several major changes throughout its history. The ones that were in force for the longest periods were those from its post-colonial, independent 1

period, namely the 1935, 1973, and 1987 Constitutions.1 Its government historically has three separate branches of national government: the Executive, Legislative, and Judiciary. Political power, however, has mostly been vested in the Executive throughout its history. Its head, the President, acts as the Chief Executive. When the 1973 Constitution was in force, the President could even exercise legislative powers through the issuance of Presidential Decrees and Orders or Letters of Instruction, as well as exercise general supervision over local government units.² To balance this presidential system of government, the Constitution has written the principle of separation of powers among the three branches where each “branch has a set of specialized functions, in part designed to constrain the others.” There exist checks and balances among these different functions in order to ensure that “no part of the government holds enough power to dominate the other branches[.]”³ However, this system of checks and balances is not always successful. This concentration of power in the Executive has given rise to the phenomenon known as hyper-presidentialism. In this system, “[p]residents who are challenged use the rhetoric of separation of powers to defend their actions and argue against the imposition of checks and balances by the other branches and institutions.”4 Leaders in the Executive devise ways, both legitimate and illegitimate, in order to subvert the limitations to their power and effectively dominate the other branches.

In the context of the Philippines, there is a prevalence of human rights abuses, especially as the state sanctioned war on drugs carries on. This bloody drug policy is espoused by the highest official in the Philippine government–the President. It is this theory of hyper-presidentialism that is put forward to provide an explanation of how such policy of impunity and violence lives on. In a more narrowed down perspective, it is posited that the prevalence of human rights abuses by the current Duterte administration was empowered by an inherent design in the constitution. In short, it is theorized that the constitutions have been inherently designed to bring forth a powerful executive and historically, this power of the president had only grown and become a norm over time.

The objective of this study is to show how the development of the three major constitutions of the Philippines has set an enabling environment for hyper-presidentialism to thrive. Hyper-presidentialist tendencies are present across all three major constitutions of the Philippines, but emphasis will be given to those present in the 1973 Constitution -- which was promulgated during the time of the Marcos dictatorship -- and the 1987 Constitution -- which, despite being designed as a response to the authoritarian regime that preceded it, is still vulnerable to hyper-presidentialism. Particular focus will be given to the problem of human rights violations that have been perpetrated by State agents due to this hyper-presidentialist vulnerability. The study also aims to explore ways forward on how to possibly avoid hyper-presidentialist systems or how to address them, particularly in the Philippine context.

Jodesz Gavilan, “FAST FACTS: 1987 Philippine Constitution”, Rappler.com, 2 February 2016, accessed from https:// www.rappler.com/newsbreak/iq/121019-fast-facts-1987-philippine-constitution/.

2 A. F. Paguia, “The Organizational Structure of the Philippine Government,” Ateneo Law Journal (1983, 27, no. 2), 108.

3 Susan Rose-Ackerman, Diane A. Desierto, and Natalia Volosin, “Hyper-Presidentialism: Separation of Powers without Checks and Balances in Argentina and the Philippines” accessed from https://scholarspace.manoa.hawaii.edu/ bitstream/10125/35181/1/Desierto_29BerkeleyJIntlL246.pdf, 248.

4 Id., 247.

1

2

Inaugural of Manuel L. Quezon, and the establishment of the Commonwealth Government of the Philippines (Photo taken from Assembly of the Nation: A Centennial History of the House of Representatives of the Philippines, 1907-2007)

3

HISTORICAL DEVELOPMENT OF THE PHILIPPINE CONSTITUTION 1935 CONSTITUTION A year after the Tydings-McDuffie Act5 was approved by the Philippine Senate, the 1935 Constitution came to life. The 1935 Constitution was envisioned as a document that contained certain “innovations,” specifically its nationalist provisions and the strong Executive branch.6 Its essential provisions include a bill of rights, the establishment of a presidential type of government based on the principle of separation of powers, and an explicit provision for judicial review.

In the 1935 Constitution, Executive power is vested in the President. Despite the efforts of the framers of the 1935 Constitution to institute a system of checks and balances, the Executive is still arguably one of the most powerful positions in the Philippine government. A strong State was equated, or at least attributed, to a strong Executive. This was manifest in “extraordinary privileges” accorded by the 1935 Constitution to the President.7 The President could exercise the power of line-item vetos for appropriations and revenue tariffs and taxes8; control over local governments9;the power to suspend the writ of habeas corpus and declare martial law10; and the power to make appointments of justices and judges.11 The 1935 Constitution also provided for the “faithful execution clause” which vested the President with the powers necessary to ensure the execution of laws.12

The Tydings-McDuffie Act (1934), officially the Philippine Independence Act, was enacted by the US Congress. The law provided for “complete independence of the Philippine Islands, to provide for the adoption of a constitution and a form of government for the Philippine Islands.” Pub.L. 73–127, 48 Stat. 456.

6 Emmanuel S. de Dios, 2002. “Welfare and Nationalism in the 1935 Philippine Constitution,” UP School of Economics Discussion Papers 200203, University of the Philippines School of Economics. (2002).

7 Id. 8 1935 Constitution. Art. VI, Sec. 11 (2-3) 9 Id. Art. VII. Sec. 11 (1).

10 Id. Art.VII. Sec. 11(2) 11 Id. Art. VII. Sec. 7.

12 Id. Art. VII. Sec. 11 (1).

5

4

In the succeeding analysis, several aspects of the 1935 Constitution were given focus to emphasize the extraordinary powers of the Executive. Firstly, the biggest limit on the Executive was the ban on re-election. Second, the doctrine of separation of powers is given particular attention to demonstrate how the Executive was able to undermine this doctrine through clientelism and patronage which proliferated in Philippine politics. Third, the appointment powers of the President are highlighted to illustrate its effects on the dealings of the government and the dynamic between the three branches of the government. Fourth, the spotlight is turned to the President’s emergency powers which strengthened the Executive’s monopoly on violence as a tool to exert dominance. And lastly, we turn to the President’s control over economic and fiscal policy as a tool to build alliances and strengthen control over the other branches of the government.

x

RE-ELECTION BAN

as a Safeguard Against Dictatorship

The conceptualization of a strong State and strong Executive as embodied in the 1935 Constitution was a product of the framers being influenced by the political trends of their time. Outside of the Philippines, several nations were starting to challenge the prominence of laissez-faire capitalism and liberal democracy. While a strong Executive was seen as a compromise between a model of individualist liberal democracy and the rising concept of socialism, the biggest apprehension was the possibility of a dictatorship. The solution to this was the ban on re-election.13 President Manuel L. Quezon, the first President of the Philippines as a Republic, shared this apprehension: “There is one great danger in having a strong executive department, and that is the danger of dictatorship. Once again this Convention has shown its vision and wisdom when it provided that there shall be no re-election for the position of Chief Executive. This clause in the Constitution guarantees to the Filipino people the impossibility or at least the improbability of having a Chief Executive who will try to perpetuate himself in power. We are familiar with the history of some of the Central and South American Republics and our conclusion is that to a large extent the revolutions that have taken place there were caused by the fact that their Chief Executives are permitted to present themselves as candidates for re-election.”14

While there was this safeguard against dictatorship, Quezon himself was re-elected as President when the re-election clause was inserted in the 1935 Constitution through an amendment in 1940. The 1940 amendment changed the term of the President to four years with one re-election. The amendment illustrates how the Executive can appropriate constitutional design to allow the President to extend their hold on power. The amendment provisions in the 1935 Constitution, before amendment, is as follows: “Section 1. The National Assembly, by a vote of three-fourths of all its Members, may propose amendments to this Constitution or call a convention for that purpose. Such amendments

De Dios, supra note 6.

House of Representatives (1996b) Constitutional Convention Record, v. 10. Nos. 131-139. 28 January 1935-19 February 1935. Manila: Republic of the Philippines.

13 14

5

shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.”15

This amendment was made through a plebiscite rather than by a constitutional convention.

The National Assembly explained this preference as one that is driven by “reasons of economy and to avoid too much political agitation.”16 This political act of Quezon and his National Assembly set a precedent that the President can amend the Constitution to extend his own term. United States High Commission Francis Sayre even went so far to argue that Quezon had created a precedent for dictatorship.17 The amendment still imposed a maximum term limit for the President. Sec. 5, Art. VII provides that a President can only serve for a maximum of 8 years: “Section 5. No person shall serve as President for more than eight consecutive years. The period of such service shall be counted from the date he shall have commenced to act as President. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service of the incumbent for the full term for which he was elected.”

SEPARATION OF POWERS The doctrine of separation of powers is a concept directly borrowed from the United States Constitution. It is manifest in the structure of the 1935 Constitution. The three distinct branches of the government -- the Judiciary, Legislative, and the Executive -- have all devoted chapters in the Constitution that outline, limit, and proscribe the powers of each branch. As several authors have noted, while the doctrine of separation of powers implies equality between the branches of the government, the 1935 Constitution has established an “extraordinarily strong presidency.”18 “Under the principle of separation of powers obtaining in this government, the executive, legislative and judicial departments are coordinate, each supreme within the legitimate sphere of its constitutional or legal duties. In the same manner that the legislature has no authority to direct the judiciary in the exercise of powers that are strictly judicial, neither has the judiciary any power to command the executive, or those holding executive powers, in the use of functions that are purely executive.”19

1935 Cont. Art. XIV. Sec. 1 Alfred W. McCoy, ‘Quezon’s Commonwealth: The Emergence of Philippine Authoritarianism’, in Paredes (ed.), Philippine Colonial Democracy, pp. 114–160.

17 Id. 18 Julio Teehankee. Weak State, Strong Presidents: Situating the Duterte Presidency in Philippine Political Time. (2016); Emmanuel De Dios, Welfare and Nationalism in the 1935 Philippine Constitution (2002); Susan Rose-Ackerman, Diane A. Desierto, Natalia Volosin, Hyper-Presidentialism: Separation of Powers without Checks and Balances in Argentina and the Philippines (2011).

15 16

6

Despite the doctrine of separation of powers, the Executive branch had direct control of the Legislature through the culture of patronage politics in the country. Quezon exercised such control over the Legislature through his political party, the Nacionalista Party. Through his manipulation of local and provincial rival politics, Quezon was able to centralize power into the Executive through his allies.20 McCoy, in his article, Quezon’s Commonwealth: The Emergence of Philippine Authoritarianism, recounts an instance where Quezon pulled the strings in the Legislature: “When the Commonwealth’s advent in November 1935 threatened the gold mining leases of ‘Judge’ John Hausserman, the wealthiest American colonials, Quezon used all his influence in the closing hours of a reluctant Assembly to force passage of a special law granting the American millionaire ownership of his Benguet mines. House Speaker Quintin Paredes convinced legislators by ‘telling them it was our duty as loyal followers to redeem the pledge made by President Quezon,’ recalled the bill’s opponent Jose Romero. ‘This kind of argument was irresistible to a House so fanatically loyal to President Quezon.’ In so doing, Quezon violated the intent of the new Commonwealth Constitution which limited foreigners to fiftyyear mining leases.”

The Judiciary, as the third branch of government, was supposedly placed to check and balance the powers of the two other branches. The Judiciary was afforded the power of judicial review.21 However, this principle is not absolute. The Supreme Court often refused to invalidate acts of the Executive as illustrated in the case of Alejandrino v. Quezon where the Court refused to grant a mandamus petition22 to enjoin Quezon’s suspension of Senator Alejandrino.23 The doctrine of political questions was seen further in In re: Lansang v. Garcia24 where the Supreme Court was faced with a “political question.” The Court here defined a “political question” as those that “refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to which full discretionary authority is vested either in the Presidency or Congress.”25 In Lansang, the Court said that it held the power to “merely check–not to supplant–the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him to determine the wisdom of his act.”26

Fernandez-Subido v. Lacson, G.R. No. L-16494, [August 29, 1961], 112 PHIL 950-956.

McCoy, supra note 15, at 121.

21 1935 Constitution. Art. VIII. Sec. 2. (as amended) 22 A petition for mandamus is a legal remedy granted by the courts to compel “some corporation, officer, or inferior court, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of some law.” Garcia v. Sweeney, G.R. No. 1693, [February 5, 1904], (Johnson and McDonough, dissenting opinion).

23 Alejandrino v. Quezon, 271 US 528 (1926).

24 In re Lansang v. Garcia, G.R. No. L-33964, L-33965, L-33973, L-33982, L-34004, L-34013, L-34039, L-34265, L-34339, [December 11, 1971], 149 PHIL 547-627.

25 Id. 26 Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (Manila: Rex Book Store, 2009), 907-909.

19 20

7

APPOINTMENT POWERS The power to appoint is essentially an Executive act. The President exercises not only the power of supervision but also of control through this Executive function of appointment.

This power of appointment is also limited by the 1935 Constitution. Sec. 11 (3) of the 1935 Constitution prescribes the consent of the Commission on Appointments: “Sec. 11. (1) The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed. xxx (3) The President shall nominate and with the consent of the Commission on Appointments of the National Assembly shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and air forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the National Assembly may by law vest the appointment of inferior offices, in the President alone, in the courts, or in the heads of departments.”

The aforementioned section provides the general rule and the exception. Generally, all presidential appointments need the consent of the Commission on Appointment. As an exception, Congress can vest in the President alone, in the courts, or in the heads of departments the power to appoint “inferior offices.” This power of appointment as provided in the 1935 Constitution reaches far and wide into the government bureaucracy. However, it is important to contextualize the operation of this power.

It is important to note that at the time the 1935 Constitution was enacted, Philippine politics was dominated by the traditional Filipino elite. Since education at that time was limited to a small part of the population, the elite virtually had control over all political processes.

This included the system of appointments in the government.27 Not only was the power of appointment used by the President to distribute the spoils of his victory, it was also used to silence and suppress the political opposition. To illustrate, Quezon gave much attention to local political rivalries. Quezon purposely appointed a political rival of Vice President Sergio Osmeña from Cebu as the Secretary of Public Works and Communications to ensure Osmeña’s subordination.28 Quezon had also mastered the manipulation of local politics by creating chartered cities whose mayor and councilors became Executive appointees.29 Throughout the course of the 1935 Constitution, the appointment powers of the President were used to further a general political agenda. For instance, when Ramon Magsaysay became President in 1953, he decided to use the military in government. His appointees Viberto Silochan, The Military and the Fragile Democracy of the Philippines, In The Military and Democracy in Asia and the Pacific, edited by Viberto Selochan and R.J. May, 59–68. ANU Press, 2004. http://www.jstor.org/stable/j.ctt2jbj1g.9.

28 McCoy, supra note 15.

29 Id. 27

8

were active duty officers who were tasked to perform a range of functions in the administration. By 1954, over 122 active duty officers were performing duties that were formally the prerogative of civilians. The appointment of the military in government can be attributed to the Magsaysay administration’s biggest threat at the time: the Hukbalahap.30 Magsaysay extensively used the Armed Forces of the Philippines to ensure fair elections in 1951. Magsaysay was also wary of the civilian bureaucracy as a whole.31 In another instance, Carlos P. Garcia, who refused to concede defeat to Diosdado Macapagal, Sr., appointed some 350 persons in government positions just before he stepped down as President.32 When President Macapagal issued Administrative Order No. 2 revoking and withdrawing these appointments, the Supreme Court ruled in Quimsing v. Tajanlangit33 that the Court had never upheld the validity of the Administrative Order. Instead, the Supreme Court ruled on the validity of Garcia’s midnight appointments “on the basis of the tenure, character and merit of the individual appointments and the particular circumstances surrounding the same.”34 This ruling implies that midnight appointees under the 1935 Constitution may be valid so long as “the filling up of vacancies in important positions if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualification may undoubtedly be permitted.”35 When Ferdinand Marcos, Sr. was elected President, he endeavored to consolidate his power by appointing loyal officers to the military. He served as his own Secretary of Defense for his first 13 months, replaced 14 of the military’s general officers, and continued reshuffling military officers to ensure their loyalty. When Marcos Sr. declared Martial Law, the military supported his decision.36

The Hukbong Bayan Laban sa Hapon, or Hukbalahap for short, was a Communist guerrilla movement established by peasant farmers. The Hukbalahap was formed to fight Japanese forces occupying the Philippines during the Second World War. After the war, they were branded as the new enemy as the United States policy shifted to anti-communism. The Hukbalahap renamed itself to Hukbong Mapagpalaya ng Bayan (People’s Liberation Army). They subsequently launched a series of counter-offensives against the government. See: Patricio N. Abinales and Donna J. Amoroso, State and Society in the Philippines (2005), 173–76.

31 McCoy, supra note 15.

32 Martine Meadows, Challenge to the New Era in Philippine Politics, 37 Pacific Affairs 296,296-306 (1964).

33 Quimsing v. Tajanlangit, G.R. No. L-19981, [February 29, 1964], 119 PHIL 728-733.

34 Id. 35 Merrera v. Liwag, G.R. No. L-20079, [September 30, 1963], 118 PHIL 1038-1043.

36 Dana R. Drillon, Comparative Counter-insurgency Strategies in the Philippines, 6 Small Wars and Insurgencies 281, 281303 (1995).

30

9

EMERGENCY POWERS Sec. 10. of the 1935 Constitution, as amended, provides: “Section 10. (1) The President shall have control of all executive departments, bureaus or offices, exercise general provision over all local governments as may be provided by law, and take care that the laws be faithfully executed.

(2) The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law.”

In times of national emergency and crisis, the State is interested in self-preservation and survival. Political experts have long justified the grant of extensive powers to the Executive especially in times of war where there is a need for swift action that is usually hampered by governmental process instituted by the Constitution. This grant of emergency powers to the President can also be found in the 1935 Constitution.

President Elpidio Quirino shaking hands with Huk Leader Luis Taruc upon issuing amnesty to the rebel group on the condition that they disarm on June 21, 1948. The negotiation will eventually collapse on August, 1948.

(Photo courtesy of the National Library of the Philippines.)

10

The 1935 Constitution grants three choices to the President. “He may call out the armed forces, he may suspend the privilege of the writ of habeas corpus, or he may declare martial law, depending upon the gravity of the crisis.”37 In 1950, President Elpidio Quirino exercised this power to suspend the writ of habeas corpus to keep alleged Hukbalahap sympathizers detained. In his address to the public, he justified the suspension of the writ as a “measure calculated to facilitate the prosecution and final disposition of the increasing number of cases arising from the seditious, rebellious or otherwise subversive acts of the lawless elements to the end that normalcy may be restored and the democratic way of life may be preserved for us and our children.”38 Quirino’s objective was to preserve the legally constituted government and to strengthen government institutions.39 Ferdinand Marcos, Sr. also invoked this power in 1972 – a step that marked the overthrow of the system of checks and balances the 1935 Constitution endeavored to establish. As recounted countless times by historians, Marcos, Sr. instituted “constitutional authoritarianism.” Faced with the end of his second term as President without any possibility of re-election, Marcos sought to preserve his power by declaring Martial Law. Prior to the 1935 Constitution, the Supreme Court, in Barcelon v. Baker40 in 1905, established the validity of the suspension of the writ of habeas corpus. It was deemed to be a political question beyond the reach of the court’s power of judicial review. This precedent will go on to allow the Supreme Court to take a similar stance in 1973 when Marcos’ Proclamation No. 1081 was sought to be invalidated.41

p

CONTROL OF FISCAL AND ECONOMIC POLICY

As the Chief Executive of the Republic, the President had the power of line-item vetos for appropriations and revenue tariffs and taxes as provided in Sec. 20, Art. VI of the 1935 Constitution: “Section 20. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; but if not, he shall return it with his objections to the House where it originated, which shall enter the objections at large on its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent together, with the objections, to the House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas and nays, and the names of the Members voting for and against shall

1935 Constitution, Art. VII, sec. 10 (2). (as amended) President Quirino on the suspension of the privilege of the Writ of Habeas Corpus, October 20, 1950, available at https://www.officialgazette.gov.ph/1950/10/20/statement-of-the-president-quirino-on-the-suspension-of-the-privilege-ofthe-writ-of-habeas-corpus-october-20-1950/.

39 Drillon, supra note 34.

40 Barcelon v. Baker, Jr., G.R. No. 2808, [September 30, 1905], 5 PHIL 87-120.

41 Javellana v. Executive Secretary, G.R. Nos. L-36142, L-36164, L-36165, L-36236 & L-36283 (Resolution), [March 31, 1973], 151-A PHIL 35-427.

37 38

11

be entered on its Journal. If any bill shall not be returned by the President as herein provided within twenty days (Sundays excepted) after it shall have been presented to him, the same shall become a law in like manner as if he had signed it, unless the Congress by adjournment prevent its return, in which case it shall become a law unless vetoed by the President within thirty days after adjournment.

(2) The President shall have the power to veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items to which he does not object. When a provision of an appropriation bill affects one or more items of the same, the President cannot veto the provision without at the same time, vetoing the particular item or items to which it relates. The item or items objected to shall not take effect except in the manner heretofore provided as to bills returned to the Congress without the approval of the President. If the veto refers to a bill or any item of an appropriation bill which appropriates a sum in excess of ten per centum of the total amount voted in the appropriation bill for the general expenses of the Government for the preceding year, or if it should refer to a bill authorizing an increase of the public debt, the same shall not become a law unless approved by three-fourths of all the Members of each House.

(3) The President shall have the power to veto any separate item or items in a revenue of tariff bill, and the item or items shall not take effect except in the manner provided as to bills vetoed by the President.” (Emphasis supplied.)

This power was made to influence the Legislature, local or provincial politics, as well as the private sector. The 1935 Constitution vested vast powers “over matters of national finance and commerce, as well as government budget appropriations” to the President.42 The use of these powers and extensive Executive prerogatives could “make or break many business enterprises, vitally affect the fortunes of any industry, region, or politician in the Philippines.”43 The Legislature, who largely relied on local bases for political survival, depended on the allocation of government funds to their provinces. As mentioned previously, Quezon took note of the importance of local rivalries and the interests of the wealthy elite in each province.

He used his access to government resources accessible to the presidency to intervene in provincial politics and get a hold of the Legislature. As the head of the Nacionalista Party, Quezon had the power and influence to select nominees to the legislative body. To be nominated by the dominant political party ensured a seat of power for most politicians.

For instance, Vicente Madrigal, who had been very generous to Quezon, was nominated for a Senate seat in 1941.44 Several of Quezon’s wealthy backers also were appointed in government positions. This influence of Quezon, compounded the presidential power to determine the allocation of funds45 subject to the approval of the Legislature, made it easier to distribute “pork barrel” funds in the form of projects such as “barrio roads.”46 In 1938, the Commonwealth Act 330 reported to have included a “lion’s share” of the bill’s

Eva-Lotta E. Hedman & John T. Sidel,Philippine Politics and Society in the Twentieth Century Colonial Legacies, Post Colonial Trajectories, (London: Routledge, 2000), 13 - 35.

43 Id. 44 Id. 45 1935 Constitution. Art. VI. Sec. 19. (as amended) 46 Nakano, Satoshi, The “Windfall” Revenue Controversy (1937-1941): A Perspective on Philippine Commonwealth History, 28 Pilipinas (1997), 31-60.

42

12

appropriations for roads passing through Manila. Provincial projects were also earmarked to build “barrio roads,” which then Secretary of Finance Antonio de las Alas categorized as “pork… They were not projects that would last past a few rains or a typhoon; that it was for election purposes.”47 In the case of Marcos, he used Barrio Funds from the Presidential Arm for Community Development to strengthen the Executive branch vis-a-vis the Philippine Congress. The Barrio Fund program entitled each barrio to receive a flat sum of Php 2,000 that the Barrio Council could spend for any purpose for the development of the barrio. However, the Council was limited by the veto power of the municipal officer of the Presidential Arm for Community Development. The municipal officer had the power to veto any project the Council decided to do.48 As such, Marcos, who had direct control over the Presidential Arm for Community Development, had wide discretion which local projects to approve and how much of the funds is actually accessible for members of the Philippine Congress to appropriate for themselves. These funds were also irregularly released to the barrios. In the end, the money would go to projects such as the “construction of basketball courts, some improvement of barrio school buildings, and the erection and maintenance of Barrio Council halls.”49 It is also noteworthy to give attention to the trends in government fiscal activity. A study by Thomas Nowak on politics and administration before Martial Law points out that fluctuations in government expenditures appear to be closely tied to the electoral cycle. At the national level, unusually large deficits in net government operating receipts are seen in the months preceding elections.50 During the Commonwealth government, the legislature enacted particularistic legislation allocating public funds and on the general Public Works Act as the “major vehicle for the distribution of pork”, the Philippine Congress controlled vast resources of critical significance for political survival during election years.51

Id. Nawawi, Mohd. A. “Regional Development under the New Society in the Philippines.” Southeast Asian Affairs (1975), 133–40. http://www.jstor.org/stable/27908250.

49 Id. 50 Thomas C. Nowa, The Philippines before Martial Law: A Study in Politics and Administration, 71 The American Political Science Review (1977), 522–39. https://doi.org/10.2307/1978346.

51 Hedman and Sidel, supra note 39.

47 48

13

Headline of the Sunday edition of the the Daily Express (the only newspaper allowed to circulate upon the declaration of Martial Law) from September 24, 1972 shortly after Ferdinand Marcos Sr. declared martial law.

14

1973 CONSTITUTION In 1965, Ferdinand Marcos, Sr. was elected for his first term under the promise that “this nation can be great again” in light of the rampant corruption and inefficiency of the previous administrations.52 His administration was fraught with heavy borrowing from international development programs yet did not yield economic progress. Despite growing criticism from political opposition members, he was re-elected with $50 million going into his campaign, a huge chunk of which was from public funds like the Rural Improvement Fund -- with widespread vote-buying and electoral fraud being present.53 His re-election was faced with a slew of scandals: from a billion peso government deficit to civil unrest due to an increase in activism from students, the Roman Catholic Church, and the newlyformed Communist Party of the Philippines.54 There were numerous and frequent instances of violence attending the demonstrations, notable of which was the First Quarter Storm in 1970 which resulted in the deaths of four students. Former Marcos allies even expressed sympathies to the movements that were critical of the administration. It was in light of this precarious political context that Marcos desired to consolidate power, with the 1973 Constitution’s promulgation being the ultimate result of this desire. A constitutional convention was organized and the writ of habeas corpus was suspended. On September 23, 1972, Marcos declared a state of emergency due to a rightist-leftist plot to overthrow the government, imposing Martial Law. This was attended by thousands of arrests of political opponents, the raiding of schools, religious establishments, and media offices, and the shutdown of Congress.55 Soon after declaring Martial Law, Marcos staged a “national referendum” for the approval of the new 1973 Constitution. The way this was conducted was marred by irregularities and fraud, with the citizens’ assemblies approving the Constitution through a mere show of hands which was not allowed under the 1935 Constitution.

Despite this, the Supreme Court ruled there was no judicial impediment to the new Constitution being in full force and effect.56

CONSTITUTIONAL AUTHORITARIANISM One crucial aspect of the 1973 Constitution is doing away with the tripartite system in favor of a parliamentary system with a Prime Minister and with Marcos remaining as President. However, Marcos was effectively able to indefinitely remain in power since a transitory provision in the Constitution allowed him a term extension as President.57 This was representative of his form of governance known as “constitutional authoritarianism”.

Patricio N. Abinales and Donna J. Amoroso, State and Society in the Philippines (Rowman and Littlefield Publishers, Inc., 2005), 194-5.

54 Id, 197-8.

55 Id, 198-99.

56 Id, 202-20 57 Carolina G. Hernandez, “Constitutional Authoritarianism and the Prospects of Democracy in the Philippines,” Journal of International Affairs (Winter 1985, Vol. 38 No. 2), 245.

Abinales and Amoroso, supra note 49, at 206-7.

52

15

He articulated his plans for a constitutional form of authoritarianism whereby he would be able to centralize power under the Executive.58 In order to accomplish this, he sought for constitutional justifications for his actions, giving them a veil of legitimacy.59 During this period, the Executive was virtually the only branch of government that made decisions, with the Judiciary being a mere rubber stamp and the Legislative being subjected to his whims.

Legislation was conducted through Letters of Instructions (LOIs), Presidential Decrees (PDs), and other Executive issuances.

In order to facilitate this, Marcos “packed the Supreme Court with close associates and signed a decree making all subsequent executive decrees and orders ‘laws of the land,’ thereby arrogating legislative power to himself.”60 Marcos’ administration later passed amendments that allowed him to act as both President and Prime Minister, with the ability to exercise Legislative powers until the lifting of Martial Law. The most crucial of this was Amendment No. 6: “Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency issue the necessary decrees, orders, or letters of instructions, which shall form part of the law of the land.”

This amendment was in the nature of an emergency power that the President could avail of in times of crisis and without authority from the Batasang Pambansa.61 There was also the requirement that it would have to meet the exigency of the grave or imminent emergency or threat or the inability to act of the Legislature.62 However, what is problematic is how the gauging of these conditions required to exercise these powers are discretional upon the President, as seen in the first lines of the provision, “Whenever in the judgment of the President[.]”63 The conditions for the exercise of the powers were provided but the determination of their existence were left entirely to the President’s judgment, leaving very few safeguards against any abuses. He alone could determine what a grave emergency or threat or imminence thereof is, being “the sole judge of whether a case for the exercise of his decree-making power exists.”64 The second condition of the failure of the Batasang Pambansa (National Assembly) to act is also uncertain. It has been argued that it should be “conditioned on the failure or inability of the Batasan to act quickly and adequately.” However, Marcos “has, in most

Hernandez, supra note 53, at 245.

Abinales and Amoroso, supra note 49, at 207.

59 Abinales and Amoroso, supra note 49, at 207.

60 Id. 61 Alberto T. Muyot, Jr., “Amendment No. 6 and the Rule of Law,” Philippine Law Journal (June 1984, Vol. 59, No. 2), 1467. Under the 1935 Constitution, Congress was given the power to delegate limited legislative power to the President to be exercised in times of war or other national emergency. This is in the nature of a limited delegated power, not original power, and is only temporary. In contrast, the 1973 Constitution with Amendment No. 6 grants an original power to the President to exercise legislative power without need of any authority from the Batasang Pambansa.

62 Id, 147.

63 Amendment No. 6.

64 Muyot, supra note 58, at 148.

58

16

cases, preempted the Batasan in enacting important legislation.”65 Due to this amendment, Marcos was able to essentially act as the Legislative branch of government. During this period, he “issued 1,941 presidential decrees, 1,331 letters of instruction, and 896 executive orders, leaving his mark on practically every important legal and juridical issue the country faced.”66 What resulted was that all three branches of government were subsumed under the rule of Marcos himself, compromising the supposed separation of powers that were previously in place. The Batasang Pambansa was reduced to a “rubber-stamp legislature, always approving whatever the President proposed.”67 One notable criticism of these powers was the issuance of “secret decrees” which were known only to their sponsors, the President, and a select few persons. This created “a great deal of anxiety among Filipinos because it means that one may be committing a crime without even being aware of it.”68 Amendment No. 6 ultimately made Congress subject to Marcos’ whim while Presidential Decrees were able to make up much of the substantive law of the land, covering subjects like “subversion, fundamental rights and creation of important governmental structures and offices.”69 The effects of this system which centralized power into virtually one branch were drastic.

Marcos used his wide control over all the branches of the government to suppress dissent and break down democratic institutions. Political parties and mass activities were banned, political opponents were arrested, and constitutional authoritarianism was substituted for democratic forms of governance. Marcos, through the various provisions of the new constitution and the subsequent amendments, was able to bestow upon himself the sole appointive powers, effectively putting both civilian and military posts under his authority.70 Marcos was also able to constitutionally suspend elections since they were allegedly “inimical to nation building and development as they were costly, divisive, counter-productive and destablizing, particularly with regard to economic growth.”71 The media also gravely suffered due to these changes. Martial Law resulted in the shutdown and government takeover of all newspapers, television, and radio stations, with heavy censorship being implemented. It resulted in the various forms of criticism against governments being expressed through media becoming criminalized. One decree issued, PD 1834, even imposes the death penalty for “the use of media facilities for the purpose of mounting sustained propaganda attacks against the government or any duly constituted authority.”72 The role of the Judiciary, while previously considered the guardian of the Constitution, was made subordinate to the Executive and legitimized the constitutional authoritarianism of the Marcos regime. Through declaring that there was no further judicial impediment to the full enforcement of the 1973 Constitution, it “validated and thus legitimized all the acts of

Id,149.

Abinales and Amoroso, 207.

67 Tony La Viña, “The travesty of the 1973 Constitution,” Manila Standard, 20 September 2016, accessed from https:// manilastandard.net/opinion/columns/eagle-eyes-by-tony-la-vina/216640/the-travesty-of-the-1973-constitution.html.

68 Hernandez,supra note 53, at 246.

69 Id, 249.

70 Id, 245.

71 Id, 248.

72 Id, 249-50.

65 66

17

the president as the administrator of martial law and decided many issues in favor of the government.” Among its other decisions that were crucial in enabling Marcos to exercise authoritarian rule were on the validity of the suspension of the privilege of habeas corpus, the power of the President to call for a plebiscite to ratify the Constitution, the constitutionality of Martial Law, the validity of the creation and jurisdiction of military tribunals, the power of the President to propose amendments to the Constitution, the validity of the Judiciary Reorganization Act, and the power of the President to legislate even during Martial Law.73 At the core of constitutional authoritarianism was the widespread disregard for fundamental rights. While the right to organize and engage in partisan activities was prohibited, rights related to due process were also suspended, with many instances of arbitrary arrests without formal charges, as well as enforced disappearances and summary executions (locally known as “salvaging”) being frequent occurrences with the police and military being at the forefront of its perpetration.74 Thousands of incidents of killings and inhumane tortures were recorded by various organizations during this time.75 Since Marcos had the military under his control, political dissidents, confirmed or even merely suspected, were arrested and subjected to harsh punishments, torture, and even death.76 The complete absence of separation of powers and the system of checks and balances resulted not only in abuses of fundamental human rights, but also economic turmoil, and rampant graft and corruption. By 1984, the foreign debt of the country had ballooned to over $24 billion and unemployment and poverty were prevalent, while Marcos’ cronies were set up to have virtual monopolies over essential industries.77 This was largely due to the fact that Marcos virtually had control over the whole government as the Chief Executive.

It must be seen that the socio-political context surrounding the promulgation of the 1973 Constitution was a huge factor in enabling the dictatorship that ensued. Its provisions as well as those of the subsequent amendments were crucial to ensuring that Marcos’ constitutional authoritarianism was secured, especially through creating a hyper-presidential environment marked by an unchecked and unaccountable Executive branch. While the subsequent overthrow of the Marcos dictatorship ushered in a new republic, this required a new Constitution that would reflect the ideals of the society that was recovering from the effects of the dictatorship.

Id, 252.

Id, 251.

75 Kurt Dela Peña, “Marcos’ martial law: Golden age for corruption, abuses,” Philippine Daily Inquirer, 21 September 2021, accessed from https://newsinfo.inquirer.net/1490968/marcos-martial-law-golden-age-for-corruption-abuses.

76 Amnesty International. “Five things to know about Martial Law in the Philippines,” Amnesty International, 25 April 2022, accessed from https://www.amnesty.org/en/latest/news/2022/04/five-things-to-know-about-martial-law-in-thephilippines/.

77 Camille Diola, “Debt, Deprivation, and the Spoils of Dictatorship,” The Philippine Star, accessed from https://newslab. philstar.com/31-years-of-amnesia/golden-era.

73 74

18

Corazon Aquino receiving the Constitution from 1986 Constitutional Commission chairwoman Cecilia Muñoz-Palma (Official Gazette)

1987 CONSTITUTION The inception of the 1987 Constitution was against the backdrop of the rebuilding of the democratic republic after the fall of the Marcos regime. After the People Power Revolution which ousted the rule of Marcos and resulted in him leaving the Philippines along with his family, Corazon Aquino was proclaimed President and she appointed a constitutional commission, resulting in the submission and eventual promulgation of the 1987 Constitution.78 The 1987 Constitution must be seen as having been crafted as a direct response to the abuses of the 1973 Constitution. There was the crucial reinstatement of the tripartite government with the separation of powers and checks and balances, restoring “the pre–martial law constitutional system consisting of a president and vice president, bicameral legislature, and independent Supreme Court.”79 The President’s term is also limited to a single, six-year term. There was also an intention on the part of its framers to reduce the excessive powers that Marcos accumulated throughout his rule.80 Given the militaristic nature of the previous regime, one of the principles of the 1987 Constitution is that “Civilian authority is, at all times, supreme over the military.”81 The 1987 Constitution has social justice at its core, striving to enhance the rights-based foundation of the country’s constitutional order through a separate article on social justice.

This highlighted not only civil and political rights as is usually present in the Bill of Rights, but Abinales and Amoroso, supra note 49, at 233.

Id, 234.

80 Id 81 1987 Constitution, Art. II, Sec. 3.

78 79

19

also social, economic, and cultural rights including those for indigenous peoples’ rights and innovative categories of sectoral rights for rights-holders, including those of labor, peasants, the urban poor, indigenous cultural communities, and women.”82 However, despite this, tendencies towards a strong Executive branch, which at times have lent themselves to hyper-presidentialism, are still present. Article VII, Sec. 17 of the 1987 Constitution states that “The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.”83 The President also still acts as Commander-in-Chief of the Armed Forces of the Philippines and still has the power to declare martial law and suspend the writ of habeas corpus. Article VII, Sec. 18 of the 1987 Constitution, highlights the President’s powers as such: “The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or 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 sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.”

While still present as a vestige of the power granted to the Executive under the previous constitutions, it is now subject to certain limitations such as the sixty-day limit, the requirement of a written report to be submitted to Congress (which may revoke the President’s order), as well as the Supreme Court’s power of review, as follows: “The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.”84

Furthermore, it must be emphasized that the Constitution is still paramount and is still in force despite any declaration of a state of martial law or the suspension of the privilege of the writ of habeas corpus. The same section states that “A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.”85 International Institute for Democracy and Electoral Assistance and the Institute for Autonomy and Governance, “Bill of Rights and Justice System Reform Under a Federal Transition,” Charter Change Issues Brief (November 2019, No. 3), accessed from https://www.idea.int/sites/default/files/publications/justice-system-reform-under-federal-transition.pdf, 7.

83 1987 Constitution, Art. VII, Sec. 17.

84 Id., Art. VII, Sec. 18.

85 Id., Art. VII, Sec. 18.

82

20

Additionally, the power to declare a state of war as well as the emergency powers given to the President is not lodged upon the Executive but is now a Legislative prerogative, with the intended effect of preventing abuse of such powers by the President. Art. VI, Sec. 23 reads as follows: “(1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.”

In spite of these constitutional safeguards being present, this power has not been immune to abuses by certain Presidents during the new republic. President Gloria Macapagal-Arroyo during her term proclaimed states of rebellion, national emergency, and martial law four times (2001, 2003, 2006, 2009), which were all lifted days later. These were due to various instances of civil unrest, two coup attempts, and the aftermath of the Ampatuan massacre in the Maguindanao region in Mindanao.86 Arroyo’s Presidential Proclamation No. 1017 and General Order No. 5 in 2009 declared and implemented a state of national emergency on the 20th Anniversary of the People Power Revolution due to acts of terrorism and lawless violence, but came into scrutiny since they allowed for warrantless arrests and takeover of facilities, including the media. The Supreme Court, in the landmark case of David v. Arroyo, held that since there was no law defining acts of terrorism, the President alone could determine what acts constitute such and “there can be indiscriminate arrest without warrants, breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the administration.”87 This portion of the President’s order was held to be constitutional, as well as the subsequent warrantless arrests and dispersal of demonstrations done by activists, in blatant violation of due process and the right to freedom of assembly.88 Another notable instance of abuse is that by President Rodrigo Duterte in 2017 when he imposed martial law in the whole Mindanao region due to the five-month conflict between the government and the ISIS-inspired Maute group in Marawi City.89 Duterte’s Proclamation No. 216 for martial law was overwhelmingly approved by both Congress and the Supreme Court and was put in place and extended for years since the end of the Battle of Marawi in October 2017.

Mindanao was effectively place under military rule for a long period of time, yet this decision by the government “did not take into account that the enduring resentment, fear and horror of Muslim Filipinos are largely rooted in the historical abuses, human rights’ violations and cruelty perpetrated against them by the military.”90 Justice Marvic Leonen of the Supreme Court, in his dissent to the extension of martial law in Mindanao, explains the baselessness of the continued Philippine Daily Inquirer, “States of rebellion, emergency under Arroyo administration,” Philippine Daily Inquirer, 4 September 2016, accessed from https://newsinfo.inquirer.net/812626/states-of-rebellion-emergency-under-arroyoadministration.

87 David v. Arroyo, G.R. No., 171396 (2006).

88 Id. 89 Bonn Juego, “The Philippines 2017: Duterte-led Authoritarian Populism and Its Liberal Democratic Roots,” Asia Maior: The Journal of the Italian think tank on Asia founded by Giorgio Borsa in 1989 (2017, Vol. XXVIII), 140.

86

21

BBC News from May 23, 2017 after Duterte declared martial law in Mindanao.

imposition of martial law and highlights how both Congress and the Supreme Court have failed to keep the powers of the Executive in this case in check: “The government failed to show why the normal legal framework and the professional work of the military, police and local government units are insufficient to meet the threats that they describe.

The facts they present are not sufficient to support the use of the extraordinary powers of the Commander in Chief to declare martial law and suspend the privilege of the writ of habeas corpus.

The majority surrenders the Constitutional mandate of both Congress and this Court to do a reasonable, conscientious, and sober check on the use of the most awesome powers of the President as Commander-in-Chief. More than any constitutional organ, this Court should be the last to succumb to fear stoked by a pastiche of incidents without context. More than ever, this Court is called upon to practice its studied independence. It should show that it is an institution that can look beyond political pressure. It should be the constitutional body that does a sober and conscientious review amid the hysteria of the moment. This Court should be the last to succumb to false and simplified dichotomies.”91

Another instance that the Executive was left unchecked was in the functions of the police.

According to the 1987 Constitution, the establishment of the police force requires that it be civilian in character.92 The Court has also held that this constitutional provision must be interpreted as being separate from the Commander-in-Chief powers of the President over the Armed Forces of the Philippines and is instead under the President’s power of Executive control.93 However, this could still be heavily abused, as seen in the case of the “War on Drugs” during the Duterte administration.

Duterte anchored his political campaign in 2016 on quelling illegal drugs through arresting and killing drug pushers and users.94 When he was elected, the Philippine National Police was put

Ibid., 145.

Lagman v. Medialdea, G.R. 235935 (2018).

92 1987 Constitution, Art. XVI, Sec. 6.

93 Carpio v. Executive Secretary, G.R. No. 96409 (1992).

94 Human Rights Watch, “Philippines’ ‘War on Drugs’,” Human Rights Watch, accessed from https://www.hrw.org/tag/ philippines-war-drugs.

90 91

22

at the center of this government policy against drugs through “Oplan Double Barrel” which involved aggressive police operations against drug personalities and “Oplan Tokhang” which attempted to convince drug users and pushers to surrender to get rehabilitated.95 However, these were subject to a multitude of abuses, with the death toll amounting to the thousands, with human rights groups that have conducted documentations of the incidents finding that the victims are generally part of the urban poor and working in the informal economy.96 Despite Duterte and his officials denying condoning these killings, the government has still not acted to put an end to this campaign.97 The Commission on Human Rights has also reported that these police operations were marked by excessive and disproportionate force, with a gross lack of accountability to address the killings.98 This campaign, while being in the exercise of the President’s Executive power, can be seen to have been gravely abused, costing thousands of lives.

In light of potential abuses, the 1987 Constitution also established several independent institutions other than the Legislative and Judiciary that will serve as checks and balances to the Executive. Notable among these is the aforementioned Commission on Human Rights which is constitutionally mandated to investigate all forms of human rights violations involving civil and political rights. However, this Commission is limited since it does not have any prosecutorial powers among its constitutionally granted powers and functions.99 Another institution created by the Constitution to serve as an accountability measure is the Office of the Ombudsman. This office is tasked with investigating illegal, unjust, improper, or inefficient acts of any public official, employee, office, or agency, and even direct concerned officers to take appropriate action against them, recommending their removal, suspension, demotion, or other penalties.100 It is intended to serve as a “Watchman over the law’s Watchmen”101 and protect against bureaucratic abuses. However, the public perception of this institution is that it has not successfully quelled such abuses given how widespread they remain.102 Given the inefficiency as well of the Philippine bureaucracy and the prevalence of poverty in the country, access to justice remains minimal, making the task of the Ombudsman more complicated, being less accessible to the persons who need it most. While any person may submit a complaint to the Ombudsman against any public officer, this is not as easy to do in practice.103 Furthermore, the President, being an official removable only by impeachment, is exempted from the disciplinary authority of the Ombudsman.104 This makes keeping government officials in check, especially those from the Executive, more difficult.

Bonn Juego, supra note 86, 142-3.

Atty. Raphael Carlo Brolagda, Atty. Ivy-ron Quinto, Benjie Allen Aquino, and Juan Paolo de Guzman, “Beyond the Numbers: Revealing the Faces of the Victims of the Campaign Against Illegal Drugs,” IDEALS, Inc. (Quezon City, 2021), 8.

97 Bonn Juego, supra note 86, 142-3.

98 Zacarian Sarao, “CHR stands by own ‘drug war’ report: We only fulfilled our mandate,” Philippine Daily Inquirer, 23 May 2022, accessed from https://newsinfo.inquirer.net/1601611/chr-stands-by-own-drug-war-report-we-only-fulfilled-ourmandate.

99 1987 Constitution, Art. XIII Sec. 17.

100 1987 Constitution, Art. XI, Sec. 13.

101 Salvador T. Carlota, “The Ombudsman: Its Effectively and Visibility amidst Bureaucratic Abuse and Irregularity,” Philippine Law Journal 65, no. 1 and 2 (March-June 1990), 13.

102 Id. 103 Id, 25.

104 Ombudsman Act of 1989, Sec. 21.

95 96

23

The New York Times article on the shutdown of ABSCBN from July 10, 2020.

With the extraordinary emergency powers of the President, even established checks and balances present will not be enough to safeguard against abuses if backed by enough political machinery. For instance, Duterte’s administration was attended by a sympathetic supermajority in Congress allowing him to push his legislative agenda with little to no contradiction.105 Through these alliances, Congress was able to pass controversial measures such as the passage of an anti-terrorism law, the denial of a new franchise for ABS-CBN (one of the leading media outlets in the country), and the allotment of zero budget appropriations for members of the opposition.106 Duterte also packed the Supreme Court with would-be allies. While this is not unprecedented, it has drastic consequences in the current administration, putting the independence of the Judiciary into question.107 The judicial system has been shown to have been instrumental in silencing critics of this administration, including no less than former Chief Justice Maria Lourdes Sereno, who was vocally against Duterte’s policies, particularly when the latter named several members of the Judiciary as peddlers or distributors of illegal drugs.108 She was initially subject to an impeachment complaint but was ultimately removed from office through a quo warranto petition which rendered her appointment void.109 Since the Judiciary was highly cooperative with the whims of the Executive and upheld or did not strike down the President’s actions, the Duterte administration was able to successfully push through with its authoritarian agenda, removing political opponents from position, imposing martial law, and shutting down media institutions, among others.110

Alexis Romero, “Duterte secures ‘super majority’ in House,” The Philippine Star, 8 June 2016, accessed from https:// www.philstar.com/headlines/2016/06/08/1590856/duterte-secures-super-majority-house.

106 Mara Cepeda, “Duterte and Congress: Quick on controversial measures, slow on priority bills,” Rappler.com, 10 July 2021, accessed from https://www.rappler.com/newsbreak/in-depth/duterte-congress-quick-controversial-measuresslow-priority-bills-last-year/.

107 Edcel John A. Ibarra, “The Philippine Supreme Court under Duterte: Reshaped, Unwilling to Annul, and Unable to Restrain,” Items: Insights from the Social Sciences, 10 November 2020, accessed from https://items.ssrc.org/ democracy-papers/democratic-erosion/the-philippine-supreme-court-under-duterte-reshaped-unwilling-to-annuland-unable-to-restrain/.

108 Jon Robert R. Go and Jean Encinas-Franco, “The Power of Impeachment,” in Chronology of the 1987 Constitution (Quezon City, 2019), 48.

109 Id. 110 Ibarra, supra note 104.

105

24

The Duterte administration clearly highlights how the presence of a strong Executive is further cemented by the constitutional appointment powers given to the President. Those who are appointed by the President tend to be less insulated from politics and would be more cooperative to the Executive branch, resulting in jeopardizing the independence of the three co-equal branches of government. These appointment powers have safeguards, yet they are quite limited. For instance, the President is constitutionally prohibited from making midnight appointments, since they cannot do so two months immediately before the next presidential elections up to the end of their term, unless there are temporary appointments in Executive positions that would otherwise prejudice public service or endanger public safety.111 However, the 1987 Constitution only presents two checks from the other government branches to these appointment powers: the Commission on Appointments under Congress and the Judicial and Bar Council under the Judiciary, neither of which operate as a strong check on the President.

The Commission on Appointments’ consent is required for the President to appoint his Cabinet members, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers. However, if the Commission fails to act on a proposed appointment while Congress is in session, the President can keep renewing the appointment on an interim basis until it acts.112 Through this, Macapagal-Arroyo was also able to circumvent the constitutional prohibition on reappointment to her advantage in the appointments of the Chairman and Commissioners of the Commission on Elections since the Court held that these were ad interim appointments that were considered permanent.113 Another crucial appointment power that may be subject to abuse is in how the appointment of directors and chief superintendents of the Philippine National Police are not subject to the Commission’s approval, which Corazon Aquino was able to do.114 Furthermore, the President also directly appoints 3,500 third-level officers and 6,500 lesser officials without the need for review by the Commission on Appointments. There have also been key appointments of military officers in specialized agencies that require technical expertise, such as those done by Corazon Aquino, which has not really resulted in the improved administration of government.115 The Judicial and Bar Council prepares the list of nominees that the President may appoint to the Judiciary and Ombudsman. However, these appointments require no confirmation116 so the President may just return this recommended list. Furthermore, even the prohibition on midnight appointees does not apply to the Judiciary, as seen when Macapagal-Arroyo was able to appoint Chief Justice Renato Corona despite her term coming to a close, since the constitutional ban on midnight appointees only covers Executive appointees.117 It can be seen that despite progressive changes to the Constitution to signify an institutional shift from the authoritarian regime of Marcos, hyper-presidentialism is still present. There are still constitutional gaps that allow for the Executive to effectively be the most powerful branch of government despite the presence of the two other co-equal branches of government. However,

1987 Constitution, Art. VII, Sec. 15.

Id, Art. VII, Sec. 16.

113 Matibag v. Benipayo, G.R. No. 149036 (2002).

114 Manalo v. Sistoza, G.R. No. 107369 (1999).

115 Rose-Ackerman, Desierto, and Volosin, supra note 3, at 306.

116 1987 Constitution, Art. VIII, Sec. 9.

117 De Castro v. JBC, G.R. No. 191002 (2010).

111 112

25

a huge factor to this is outside of the Constitution itself, as seen in how Philippine society is still heavily marred by patronage politics and clientelism, allowing for presidential appointees to act favorably on the President’s actions and for supermajorities in Congress to push forward agendas of the Executive with little to no dissent. In order for hyper-presidentialist regimes to be prevented in the future, these issues, both within and outside the 1987 Constitution, should be addressed.

26

Presidential Museum and Library PH

IDENTIFIED GAPS RETENTION OF ALL EXECUTIVE PREROGATIVES The principle of separation of powers is present in all three constitutions. It was first introduced to the Philippine system of governance in the 1935 Constitution. It was subsequently weakened in the 1973 Constitution. The 1987 Constitution sought to re-establish and further limit the powers of the Executive through an expanded concept of judicial review and congressional approval of the exercise of the power to declaration of martial law. However, while the doctrine of separation of powers has stayed as a strong concept in all three constitutions, the Executive still remains powerful. None of the Executive prerogatives have been stripped from the Executive. Up until the present Constitution, the President still exercises the power of line-item vetos for appropriations and revenue tariffs and taxes; supervision of local governments; the power to suspend the writ of habeas corpus and declare martial law; and the power to make appointments of justices, judges, and numerous other civil servants.

As illustrated in the second part of the paper, Presidents have used these prerogatives to build

27

bonds of patronage with the other branches of the government as well as local and provincial governments. While the culture of patronage politics cannot be attributed solely to constitutional design, it is important to note that the constitution itself had allowed for such practice to perpetuate.

APPOINTMENT POWERS The President has continued to appoint uncritical allies in crucial positions in the government.

The appointment power of the President has been a consistent way for Presidents to consolidate power and strengthen control over the bureaucracy. As discussed, Presidents have used this not only as a tool to enable cronyism, it was also used as a political tool – a leverage to keep the opposition or potential threats to their power under wraps.

While the Philippine system of governance consistently grows, the President’s powers of appointment also expands. All three constitutions enable the President to appoint officials to crucial positions even without congressional approval such as ad interim appointees. Judicial appointments also solely rely on the discretion of the President, although limited by the list of nominees provided by the Judicial and Bar Council. But as history has illustrated, the refusal to pick an appointee from the list of nominees is also a valid exercise of the power of the President.

Judicial appointment does not even need the concurrence of the Commission on Appointments.

Throughout the three constitutions, the powers of appointment of the President remain expansive without any real check from the other branches of the government.

LACK OF CAPACITY OF INSTITUTIONS FOR ACCOUNTABILITY As previously discussed, independent institutions like the Commission on Human Rights and the Ombudsman were established by the 1987 Constitution to keep abuses of the Executive in check. However, these institutions are inadequately equipped to do so, given their constitutional limitations. The Commission on Human Rights does not have any powers to prosecute directly the human rights violations that it investigates, while the Ombudsman is shackled by bureaucratic inefficiency and its inability to discipline even the President.

PATRONAGE POLITICS AND OLIGARCHIC RULE The political culture of the Philippines is external to the design of the three constitutions and this paper does not seek to answer which came first. It is nevertheless important to recognize that the constitutions, since the first in 1935, had been crafted by a minority of Filipinos, specifically the wealthy and land-owning elite. This powerful minority envisioned a strong Executive to ensure the survival of the newly established State. In 1973, Marcos crafted the 1973 Constitution to enable him to stay in power. The 1987 Constitution, on the other hand, was an opportunity to ensure democracy and effective governance. However, the 1987 Constitution fell short of scaling down the powers of the President. The powers of the President from the 1935 Constitution remain intact in the 1987 Constitution. The highest position in the government is the most coveted elected position and, since time immemorial, has only been coveted by a member of the elite class.

28

Presidential Museum and Library PH

29

CONCLUSION The Philippine Constitution has undergone numerous changes, with a clear trend towards a more progressive fundamental law in the 1987 Constitution. However, hyper-presidential tendencies still remain. There is still the presence of a strong Executive with extraordinary powers that may be subject to abuse, especially in the presence of a more cooperative Legislative and Judiciary.

A way beyond this could be to insulate the appointment process from politics. The President still has the ultimate power of making appointments to crucial government positions which may compromise the independence of these appointed officials. The presence of safeguards such as the Commission on Appointments and the Judicial and Bar Council seem to be insufficient to guard against this.

Looking beyond the three co-equal branches could also be helpful. The media is known as the Fourth Estate in how it can indirectly affect how the government works through serving as a watchdog to the State’s actions.118 It can be seen how throughout the history of the Philippines, quelling the power of the media has been essential to securing a strong Executive branch and even forwarding authoritarian rule, whether it be through censorship and takeover of media outlets or even just demonizing members of the media and political critics. The strengthening of the institutions of the media by affording them more protection from such means of harassment and suppression is necessary to avoid a hyper-presidential system and its abuses.

The three constitutions, by design, encourage strong Presidents in the Philippine government.

Although the 1987 Constitution instituted limits, these have not been enough especially given the context of clientelism and patronage politics in the country. Steps must be taken in order to address the shortcomings not only of the Constitution itself, but also the socio-political milieu surrounding it.

118

Phoebe Cooke, “What is the Fourth Estate, why is the press called the fourth estate and where does the term come from?” The Sun, 30 July 2019, accessed from https://www.thesun.co.uk/news/6600872/fourth-estate-media-fourth-estateterm/.

30