Vigilance, not anxiety

LAST WEEK’S COLUMN ON THE 36TH ANNIVERSARY of martial law triggered fresh anxieties of one-person rule. After all, Ferdinand Marcos imposed it 15 months before his term was to end on Dec. 30, 1973. With only 21 months left of President Macapagal-Arroyo’s term, many have asked, “What are the chances of reliving martial law in our country?”

Anxiety over martial rule. To begin with, martial law is not per se bad. It is a legitimate power granted by our Constitution to the president to enable him or her to suppress an “invasion or rebellion.” It may be used only “when the public safety requires it.” In short, it is an extraordinary weapon of last resort, when the very life of the nation is on the line.

The president initially determines the necessity of imposing it for a maximum of 60 days. Within 48 hours, he or she is required to report its proclamation to Congress, which by vote of a majority of all its members, “voting jointly,” may revoke or extend it “for a period to be determined by Congress, if the invasion or rebellion shall persist and the public safety requires it.” As a further safeguard, the Supreme Court is authorized to review (and decide “within 30 days”) “the sufficiency of the factual basis of the proclamation.” Thus, the tribunal may override the president and Congress, if it finds the legal ground and the moral courage.

All in all, the present Constitution gives the president sufficient authority to defend the nation during a real military crisis, and at the same time, wisely has installed safeguards to canalize its exercise. The problem arises when this awesome power is misused or abused to advance a private agenda as Ferdinand Marcos did in 1972 to extend his term. However theoretically sound the safeguards are, they would be unavailing if Congress and the Supreme Court fail to use them properly and bravely.

Anxiety over Congress and the Court. Verily, anxiety over martial law grows out of the fear that both Congress and the Court may not stand up against an iron fist. If the House of Representatives could not gather one-third of its members to impeach the President, can it be relied upon to rebuke a wayward martial law ruler who swaggers with guns and gold to enforce obeisance?

If the Supreme Court was not willing—despite the well-reasoned contrary opinion of its chief—to compel Romulo Neri to answer three questions that might implicate GMA to the NBN-ZTE mess, can the people expect it to reverse a martial law proclamation backed up by howitzers and tanks?

To be fair, martial law was not the preferred option of GMA’s partisans. It was Charter change. They tried it in 2006 with an unsuccessful people’s initiative to install the parliamentary system. Again, a people’s initiative is not per se bad. In fact, it is the constitutional sanctification of people power.

Thus, when ordinary voters want to change specific constitutional provisions that their representatives are not willing to do, the people need not swarm Edsa anymore. They could bypass Congress and directly amend the Charter. The problem two years ago was that the politicians misused initiative by availing of it themselves, instead of using the methods given them, which are the constituent assembly (Con-ass) and the constitutional convention (Con-con).

Anxiety over the Cha-cha. After being rebuffed by the Supreme Court, GMA’s cheerers have now turned to the Con-ass. But with an uncooperative Senate and a hostile media, they have not made enough inroads. According to Majority Leader Arthur Defensor, the House is stymied by two questions: (1) should the two chambers of Congress meet jointly or separately? and (2) should they vote jointly or separately? He averred that the Supreme Court must first resolve these issues before Congress could move on.

If Congress is still stymied by these questions by the end of October, it may not have enough time for the Con-ass because it will be hard pressed by its crowded agenda (budget, reproductive health bill, etc.) and its All Saints’ Day and Christmas breaks.
Does GMA have other options to extend her reign? Yes, an incumbent president has many options. Sometime ago, her election lawyer, Romulo Macalintal, floated the idea of an appointive Con-con. He reasoned that the present Charter was drafted and adopted by 49 constitutional commissioners appointed by President Corazon Aquino.

True, in 1986, nothing barred the Aquino revolutionary regime from appointing charter drafters. But the present Constitution requires the Con-con to be called not by the president, but by Congress “by a vote of two-thirds of all its Members,” without saying whether the vote would be joint or separate. Thus, the same two questions on the Con-ass also befuddle the Con-con.

Neither is emergency rule palatable. Devoid of any constitutional cover, a naked power grab is very risky; it could lead to revolving coups. Shaky is the crown that rests on bayonets.

Because of the difficulty of revising the Constitution and the inherent dangers of emergency rule, GMA may be tempted to try “constitutional authoritarianism.” Assured of a wimpy Congress and a “packed” Supreme Court, she may impose martial law and suppress habeas corpus. She could thereafter call a Con-ass (or a Con-con) that would, in turn, produce a new Constitution to legitimize her continued reign.

Do our people have reason to be anxious? Yes, but they have all the more reason to be vigilant. Indeed, “eternal vigilance is the price of liberty.”

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