Die, Cyclops, Die!
December 15th, 2008 by DJB
UNICAMERAL CON-ASS was, is and always will be a silly-ass idea. Only the Arroyo brothers and their evil-clown pals, Luis Villafuerte and the Kampisinos, are still trying vainly to keep Gloria Arroyo from falling into terminal lame duckie-hood by stoking up faint hope in a future all-sycophant Supreme Court. But the method they have chosen–unicameral Con-Ass–is itself just a lame-brained idea, and the Palace has been told it cannot be made to fly. Now the spell over the House may soon be broken, and all Hell is about to break loose as the president prepares to dismount the Tiger, or perhaps takes it for another wild ride. Beware of the martial law option of the Lame Duck…
ART PANGANIBAN (formerly Chief Justice of SCoRP, turned PDI Pundit) addresses Arroyo’s Options in case the chacha choo choo fails to leave the House. She could (1) declare martial law; (2) assume emergency rule; (3) run for Vice President in 2010 and assume the Presidency, again, like she did in 2001; or (4) play the new Kingmaker and control the next admin.
Caveats in reverse order:
Option 4 would be the conventional dismount and is probably the safest course. But it is fraught with risk because if her horse doesn’t win, and stripped of Presidential immunity, Gloria Arroyo could face years of prosecution.
Option 3 is interesting for its novelty and would be legal. She could run with Noli de Castro for example, win the Vice Presidency and have Noli resign for her to have six more years. (Yippee!)
Option 2, as Panganiban points out, would be highly unpopular and even face international censure.
Option 1 – the martial law option — is the most important and fascinating. Long before either the writ of habeas corpus is suspended or martial law imposed, Filipinos ought to familiarize themselves with the following provision of the Constitution. Although the 1987 charter is reputed to be full of anti martial law features, the reality is, under the present provision, the Lower House, by itself, in conspiracy with the President, COULD impose martial law indefinitely.
However, I disagree with Art Panganiban that under a legislative-executive martial law regime, that they could then convene Con-Ass and switch to a unicameral Parliamentary system. The provision itself is clear–”A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies…”
1987 Article 7 Section 18. 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.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without 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 of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
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 of habeas corpus.
The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.
Many people, including this writer, have become familiar with several key provisions of the 1987 Constitution as a result of President Arroyo’s expert assaults and skillful utilization of them. This bitter experience continues and if anything promises to get worse as Gloria Macapagal Arroyo refuses to dismount the Tiger. I suppose that before it actually happens, people really ought to anticipate her next dire move and come to understand the provision that will surely come into play if GMA plays the Martial Law Card.
Just perusing this provision will reveal much terra incognita that ought to be threshed out now. For example, WHERE is the vote to be taken to either reject or uphold a declaration of martial law or suspension of the writ of habeas corpus? The Batasan in Quezon City or the Senate in Pasay City? Who convenes and/or presides over such a session?
Given the turbulent state of the world economy, and with growing domestic threats from insurgent groups, there is a high probablity that President Gloria Macapagal Arroyo will be treating us to another major study of the 1987 Constitution, specifically Article 7 Section 18, the martial law provision.
December 15, 2008 at 11:32 am
ever the constitutional wizard, you “disagree” with former cj panganiban on a constitutional matter? how can convening “con-ass” under state of martial law be tantamount to a “suspension” of the constitution”?
December 15, 2008 at 12:56 pm
bencard,
So you think “unicameral con-ass” could be made logically valid under martial law? That the bicameral nature of the Congress would somehow be changed by the state of martial law?
I think CJ Panganiban misspoke or miswrote. He’s been terribly wrong before, including Edsa Dos and the military-judicial coup d’etat that that represented.
December 15, 2008 at 1:23 pm
if you read the linked column by justice panganiban, he implicitly assumes that much of the opposition to cha-cha (and thus con-ass) comes from an opposition to term extension. he reasons (maybe prematurely) that a rebellion/invasion that leads to martial law, would negate much of that opposition, opening the doors to the con-ass (under the rules set by the constitution).
December 15, 2008 at 1:34 pm
and yes, i agree with DJB. the wording of the provision assumes that congress would do its job and draft RULES that cover the event of martial law. They should have the rules ready…
December 15, 2008 at 3:53 pm
Gabby,
I do not think Art Panganiban sees the political opposition as the main reason for the failure of unicameral chacha. So it’s disappearance would not make unicameral chacha constitutional, legal or logical.
How do you come to the conclusion that under martial law the doors are open to con-ass? Does not the very provision state that the operation of the courts and legislative assemblies are unaffected by the state of martial law?
December 15, 2008 at 4:37 pm
@DJB
i dont think it was the justice’s intention to opine about the legality of unicameral con-ass. he writes:
“THE Charter change (Cha-cha) express via the constituent assembly (Con-ass) is being derailed by a defiant Senate, a delayed test case on the “joint or separate vote” issue, a Supreme Court trying to maintain its heroic place in history and other legal obstacles.”
nothing in that paragraph attests to his opinion about the legality of unicameral con-ass. he only said that the con-ass being considered isn’t gonna push through coz of the senate’s defiance… (which is not a comment on legality of unilateral action of the lower house; he is merely vaguely alluding that it is a ‘test case’ to interpret the clause in the constitution)
he goes on to say that many people don’t like cha-cha (birthed from whatever form) because of the term extension issue…
and then he writes:
“…With the country under martial law, the Con-ass would be able to install the parliamentary system….”
and argues that because of FEAR (engendered by some rebellion/insurrection), the political opposition to cha-cha would be replaced by support.
i disagree with this conclusion. it worked in marcos’ time, but it probably wont work again, for anything but a fullscale invasion, or when a good chunk of the country is embroiled in a civil war.
This is coz people’s attitudes have changed AND the constitution has safeguards (supposedly, because as you say correctly, we should check whether the rules are in place to avoid useless procedural battles) to ensure that the constitution is still at work, the SC and congress have to question the underlying logic of imposing martial law (ie. is this rebellion for real? do we really need emergency powers to deal with this rebellion for longer than a month, etc)
so i totally agree with your take at [DJB on December 15th, 2008 3:53 pm] on what the constitution says on the status of the constitution and the courts during martial law… Maybe justice panganiban agrees with you too. Maybe not. But he sure didnt talk about it in the article u linked to.
here is the link again: http://opinion.inquirer.net/inquireropinion/columns/view/20081214-177884/Arroyos-options
December 15, 2008 at 6:10 pm
Gabby,
Mr. Justice Panganiban is too knowledgeable of the basics to think unicameral con-ass valid. I think he was just being “alarmistic” in warning that under a martial law situation, the Lower House, fresh from upholding instead of rejecting martial law, might go whole hog and try to ram through a unicameral con-ass. But I am sure Panganiban knows unicameral con-ass is an abomination givent he bicameral structure of Congress.
December 15, 2008 at 6:43 pm
djb, these are the same people who maneuvered the 1971 concon “approving” the 1973 charter…
December 15, 2008 at 8:58 pm
djb, why do you insist on putting words in the mouth of cj panganiban? he said constitutional assembly, not “unicameral con-ass”. stop qualifying his words, then arguing against it. jut because such an assembly is formed under martial law, it doesn’t necessarily mean that it’s “unicameral”.
December 15, 2008 at 9:11 pm
DJB, where does the BJE and the attempted sell out of parts of Mindanao stand in her plans?
Love this discussion, btw.
December 15, 2008 at 9:18 pm
Bencard,
Here is what CJAP said,
Sounds like unicameral con-ass to me. But perhaps we cannot tell CJAP’s attitude towards this option. I deeply distrust him because of his role in Edsa Dos, and that massive violation of the Constitution in which the Senate was emasculated and the Congress thus cuckolded by the Supreme Court. It was CJAP that bascially destroyed impeachment as a tool of checks and balance.
December 15, 2008 at 9:29 pm
BrianB,
I think BJE was her plan to leave a “peace legacy”, just like the ARMM was FVR’s. But it’s all gone horribly wrong. But here I primarily blame the US Institute of Peace which apparently provided the framework and template. They basically tried to give the MILF everything it wanted…and more.
December 15, 2008 at 9:57 pm
So she was leaving, then? She brokers peace in Mindanao, stays on?
December 15, 2008 at 9:59 pm
it sounds to you, djb. but it is NOT. cj panganiban very clearly refers to extension of martial law by congress, “voting jointly”, not the constituent assembly. your “distrust” of him makes you see things that just aren’t there.
December 15, 2008 at 10:07 pm
Hang on Bencard. I’ve already said we cannot tell what his real opinion is. But “voting jointly” is a dead giveaway that he is referring to “unicameral” since in this case the Senate is truly irrelevant. He also refers to “con-ass” which I think means Constituent Assembly. When he says the con-ass would be able to install the parliamentary system, he is clearly contrasting that situation with the present, in which twice already GMA et al have miserably failed at that. Clearly he is talking of what is possible under a martial law scenario. These are his words in that blockquote above, not mine!
But what is YOUR opinion? Under martial law upheld by a simple majority of the Congress, can 3/4 of the House members plus 18 convene a Constituent Assembly and propose revisions and amendments to the Constitution?
Am I not right to disagree with the suggestion that under martial law Villafuerte could get away with the “voting jointly” interpretation of Article 17 Section 1 (chacha) ?
December 16, 2008 at 12:53 am
Either I am really out of touch of the realities on the ground, or all the punditries above, including that of the venerable Justice Art Panganiban were all but sounds of false alarm.
My prediction is that there will be a 2010 election and the next President would either be Noli, Villar, Roxas, Lacson, Gordon, or Legarda.
Not that they are of high stature presidentiables, but in Philippine context, anyone is acceptable except the incumbent.
It would be too bold an act for GMA to extend her rule by the options laid out by Justice Panganiban, martial law, emergency rule, Con-Ass considering that the Church has already voiced out its opposition.
Martial law under Marcos came about because the Church for most of the time had danced tango with Marcos and Imelda.
Now the Church has expressed its displeasure over cha-cha, and therefore over any idea that will bring the same result, emergency rule or martial law.
GMA cannot risk the displeasure of the Church and suffer the same fate as Mr. Marcos. She has a good look at history and she would follow her basic catholic training.
Compared to Marcos, she has no blood in her hand for thousands of desaparecidos and salvaging under Marcos. Though similar crimes occur during her watch, such were directly pinned to the military apparatus and routinely on her civilian rule only under the precept of being the commander-in-chief. But if you consider the Pinoy ethos for humanity, once GMA steps down from power and do it without bloodletting, she would be loved by Pinoys and could hope to run again after the 2010 election.
GMA now could not be threatened for possible prosecution after her era by the new regime. All these talk about dismounting from a tiger is all horseshit. The new power in Malacanang would pat her back for mishandling her administration which helped too much extent the rise of the new power in that House by the Pasig River. All these vitriolic against GMA is period specific, 2010 elections. Once we passed this election fever, a new political atmosphere will calm the nation until the new kleptocracts in Malacanang started dipping their fingers in our coffers again.
If you consider that Erap despite his conviction was extended the pleasure of liberty from prison, and the Marcos’ plunder and bloody regime entirely forgotten and the Pinoys had brought them back to power, GMA would be extended much more courtesy and sympathy and the new dispensation would be awed by such sympathy as to be able to put her on trial. That is if she would allow power-change without bloodletting. And if they would insist on trial, GMA would become a martyr in the eyes of the Filipinos, a situation the new administration cannot handle. Erap, a convict still bedazzles the ever gullible Pinoys. GMA does not have that baggage of conviction nor of the sins of the degree of the Marcos era.
I will bet 100 dollars to 25 dollars if I have my analysis of the situation is proven wrong.
December 16, 2008 at 4:13 am
i believe gma doesn’t have to rely on a “favor” from anyone. her enemies can file as many cases against her as they can find paper to write them on but without evidence of criminal culpability that can hold up in a court of law (which i don’t think there is) it would be a ludicrous exercise.
as things currently stand, only a vengeful totalitarian government, without regard to due process and rule of law, can railroad a gma conviction.
December 16, 2008 at 5:35 am
Know what Bencard? Filipinos are going to be throwing more than their shoes at her as she leaves. That’s because they believe you!
December 16, 2008 at 11:21 am
why, because you think physically assaulting a private person is not criminal, and people will be so stupid as to believe you?
December 16, 2008 at 11:29 am
Hmmmm, there’s something to be said about the way Pinoys so readily relate with this rather trivial event. :D
December 17, 2008 at 10:54 am
JCC,
For some reason I think the Vice Presidency is even more valuable now than the Presidency, at least for the right candidate. It’s the only way to rule for more than six years in a row!