Marcos Pa Rin!

Pro-initiative advocates presented a disturbing suggeston that was featured in the news recently ostensibly in support of the floundering case on initiative now pending with the Supreme Court (Lambino v. COMELEC, G.R. No. 174153).

The Manila Standard reported that Deans Danilo Fariñas of the University of Baguio and Hermogenes Decano of the University of Pangasinan claimed “there is no distinction between the terms amendment and revision of the 1987 Constitution because they are “understood to be one and the same” by the people, who are considered the sovereign authors of the fundamental law of the land.” The lawyers also said that even law practitioners have agreed to define the words “amend” and “revise” as pertaining to “changes.” Fariñas and Decano said they found the “technical distinctions unnecessary” because even the US Federal Constitution from which the Philippine Constitution extensively adopted its principles, makes no mention of the word revision as distinct from amendment.

Fr. Bernas discusses the distinction between amendment and revision very clearly elsewhere and I will not dwell on this point. I will say, however, that I am fascinated by the manner in which the deans claim that the Filipino people and for "law practitioners" have made a decision on what the Constitution means. One is forced to wonder how they come to this conclusion.

The reference to the US Constitution is puzzling. The issue before the Supreme Court is not the interpretation of the US Constitution- it is the interpretation of the 1987 Constitution of the Republic of the Philippines. These charters differ on so many fundamental points especially in light of the Philippines' penchant for changing its Constitution. Our Supreme Court has distinguished these Constitutions on more than one occasion (See Francisco, Jr. v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, on the differences between these Constitutions insofar as impeachment is concerned).

The deans, however, make things worse by making a very alarming suggestion. The Standard's story continues:

Fariñas further argued that the Supreme Court already ruled in several cases that any technical difference between “amendment” and “revision” would become immaterial once Filipinos voted to ratify the proposed constitutional changes in a national referendum.

Fariñas said the proposed changes under the current people’s initiative petition would be brought to the people for approval in a plebiscite.

“If the majority votes in favor of the proposed changes, then defining such changes as amendment or revision would be rendered irrelevant, as already ruled by the Supreme Court,” Fariñas and Decano said.

The deans are of the view that the people should simply be allowed to vote on the proposed amendments/revisions regardless of whether it might offend the Constitution, and then render any question on constitutionality moot.

It is surprising that such a suggestion should come from lawyers or law professors. Their view suggests that the people are not bound by the Constitution and that if they wished it, they could rewrite it anytime and in any manner they want to. This view ignores the fact that the people themselves placed restrictions on the manner in which their collective will is to be amended. This is the reason they inscribed Article XVII into the fundamental law of the land.

Students of history should be able to detect the inspiration behind this suggestion. This is the way Ferdinand Marcos was able to force the implementation of the 1973 Constitution. It will be recalled that Congress called a Constitutional Convention for that purpose of amending the 1935 Constitution. Before the Constitutional Commission could finish its work, Marcos placed the country under martial law. He then promulgated a new Constitution purportedly approved not through ratification procedures laid down in either the old or the new constitution but by creating People’s Assemblies in every barrio composed of all citizens over 15 years of age. These assemblies were convened and asked to vote on the Constitution, which was presented without opposition.

Suits questioning the legality of the ratification of the 1973 Constitution were filed with the Supreme Court. The suits challenged the manner in which the 1973 Constitution was allegedly ratified by pointing out that the President did not have the authority to create Citizens Assemblies and that these assemblies did not have the power to approve the proposed Constitution. It was also argued that the President did not have the power to proclaim the ratification of the proposed Constitution.

Despite the irregularities attending the use of the citizens’ assemblies, the Supreme Court in Javellana v. Executive Secretary, 151-A Phil. 35 (1973); 50 SCRA 30 (1973) looked the other way. While a majority ruled that the Constitution was not validly ratified, it also ruled that the new constitution was already in force.

How was that possible? Under the 1935 Constitution a vote of two-thirds of all the members of the Court was needed to declare any law unconstitutional. Since it was an 11-member Court, seven votes were needed to declare any act unconstitutional.

While six members of the Court concluded that the 1973 Constitution was not properly ratified, the Court went to ask whether the new charter was otherwise in force. The ten Justices of the Court (there was one vacancy at that time) voted as follows: Four Justices believed the Constitution was in force and only two were categorical in saying that it was not. Four other Justices found it impossible to determine whether the people had acquiesced to the Constitution and refused to cast a vote on the last issue. Thus, despite the fact that only four Justices ruled that the constitution was in effect, there were not enough votes to hold that Constitution was not in effect. In effect, Marcos violated the law but the Supreme Court said it was all moot in light of the adoption of the Constitution.

Javellana put the Court in disrepute. Before that case, the Supreme Court was “a respected, independent and powerful legal force in Philippine politics and government.” It disrupted the pre-existing constitutional order and validated the establishment of Marcos’ martial law regime. See Florentino P. Feliciano, The Application of Law: Some Recurring Aspects of the Process of Judicial Review and Decision Making, 37 Am. J. Juris. 17 (1992). But long before the end of Marcos’ rule, the public respect formerly accorded the Supreme Court and its reputation for independence had dissipated. By the time Marcos was deposed, the Court was regarded by many Filipinos as subservient to the President.

Deans Fariñas and Decano are suggesting that a plebiscite be conducted so that all legal questions are rendered moot. This is not the way the legal system works: we do not ignore the law and by-pass the courts. Javellana is a monument to judicial ineptitude - we should not look to it as a guide in resolving legal disputes but avoiding it like the plague.