To the beautiful Ms. Denise Laurel

Ms. Denise Laurel, (or someone commenting on her behalf) made the following corrections on my blog entry The Honorable Doy Laurel viz;

Hello Mr. Bonoan, I read your blog through a friend a few minutes ago and although it is all of three months late, thank you for the kind words about my Papa Doy. However, please allow me to correct your information on the question that was asked during the game show. The question was asked about the year when my grandfather was Vice-President of the Aquino Administration and not WHO was the vice president of that term. Please review the footage carefully, instead of using me as a foil to make your point. I believe your guest Cielo needs to be sure about the facts before offering her comments.

I do not intend to make this as an erratum. I am torn between being an online journalist who should stand by his words and a gentleman who should concede to a lady. But I am more oriented towards my courteous inclinations. Moreover, as already blurted out, it has been three months since this specific episode was shown and my short memory does not serve me well to exactly recall what the actual question was. Nor do I have means to verify what I believe I have heard and watched that particular day. Nevertheless, these considerations are no longer necessary as what I have mentioned in the beginning, my polite leanings urge me to accept Miss Denise Laurel’s version of the story. To besmirch a Laurel, is not one of my intentions. Rather, I only wished to magnify the political prowess and career of one great man and that is, Miss Denise’s Papa Doy.

However, as I am sincerely extending my apologies to Miss Laurel, as an on-line journalist that I am, I am not letting this chance to discuss her latter assertions in her comment which are highly technical and legal. To quote, she wrote:

“The reason why I hesitated to answer the question on the date of his being a vice president was because there had been a bit of discussion on when he assumed the vice presidency. Some quarters say that he won as vice president during the snap elections against Tolentino and therefore should have been proclaimed prior to EDSA I. Others say that the revolutionary government which was proclaimed after Marcos left the country for Honolulu was the date to determine his assumption. And of course there is the oath taking ceremony. To date, the debate goes on. I hope this gives you a little more insight on who Denise Laurel is.”

As a fervent student of the law, I believe that this confusion had been finally settled in the case of Lawyers League v. Aquino (May 22, 1986) wherein the Supreme Court ruled that the Aquino government is revolutionary in nature. (see also Estrada v. Arroyo) Therefore, the oath taking which took place at the Club Filipino on February 25, 1986 serves as the reckoning period for the Aquino administration. (Be it noted that while Cory-Doy run as President and VP respectively under the auspices of the 1973 Constitution, they finished the race outside of it.)

I hope this misunderstanding will not in any way affect present or future relations with the Laurel family which I hold in high esteem.


NB: visit VP Doy Laurel's official website. Thank you to the Laurel Family for posting my blog entry.

Picture courtesy of pinoyfansclub.com

The Clutches of Martial Law

It has been more than a month or so since my last entry in this site which, owing to the nature of my chosen endeavor I have no choice but to overhaul my priorities all over again. I hate to admit but for the past few months I was largely preoccupied with personal cobwebs or what I call the “viruses of the mind” which prevented me from doing what I love to do best. And so first things first, deliberately, I expunge it out of my system-good riddance as they say! Anyway, since then so many critical issues, be it legal or political, have been the center stage of coffee table and classroom discussions. I must say that during my “self-imposed interregnum”, every time an issue pops up, I always felt the sudden itch to express my ideas and write something about it. But as soon as I sat down and put my hands on the computer, the piles of documents in my bedroom seemed to say that earning a living should be on the top of my list. In simple terms, blogging then should step aside even on Sundays. As trite as it may seem, but for every rule there is always an exception. Today, I will break my fast and avail myself of the much needed excuse from my daily routine. Unfortunately the pile of documents and reading materials will have to wait for an hour or two otherwise I would be in a limbo by tomorrow. Obviously, the declaration of martial law in some parts of Maguindanao requires more than a succinct “shoutout” in my facebook account. This is where I suppose, the medium of blogging finds superiority over social networking sites in terms of meaningful and well-informed opinion. Clearly it entails a lengthy and incisive discussion on the issue for it concerns more that anything else, the curtailment of cherished liberties so protected by the constitution. Not to be presumptuous or anything, but constitutional and political issues are among the areas which I find very fascinating because it touches the very core of what it is like to be a citizen of a nation. Let us now educate ourselves on the constitutional underpinnings of the martial law declaration following the gruesome massacre in Maguindanao.

Not all people can readily understand what the essence of martial law is nor its ramifications and safeguards under the constitution. Chances are, people from different walks of life deemed martial law as synonymous to the name of President Ferdinand Marcos. In fact as evidenced of a “hangover” even lawyers, the senior ones in particular, understood the concept of martial law in line with rules under the 1973 (Marcos] Constitution. Although the traditional concepts under the previous constitutions are one and the same, the present rules under the 1987 Constitution have been improved and crafted to strike a proper balance between two competing spheres, state power and individual rights. (i.e. Can the President suspend the writ of habeas corpus without the declaration of martial law? Or vice versa. More on the checks and balances later.) Luckily as a law student, I came to know martial law as one of the extraordinary powers vested in the Commander-in-chief of the armed forces, in which case the President, to quell actual invasion or rebellion “when the public safety requires it.” But what is martial law really? What is its nature and bases on the whole constitutional scheme? In my blog post entitled, The Power that lies in the Little Girl’s Hands, I made the following observation,” Martial law is essentially founded upon the police power of the state. Joking aside, what is being referred to here is not the power vested with the police force or the PNP. Obviously, this has something to do with one of the inherent powers of the state. To be clear, the textual definition of police power is that, “power vested in the legislature by the constitution to make and establish all manner of wholesome and reasonable laws…as they shall be the judge to be for the good and welfare of the state and of the subjects of the same.” The idea of martial law is to protect “public safety” against invasion or rebellion which in essence, is one of the concerns of police power. For these reasons, though martial law is often viewed as a monstrous power to be avoided, it likewise has its noble and necessary objectives to preserve law and order. Having learned from the lessons of history, the framers thought it wise to retain this power under the 1987 Constitution, but not without expressed restrictions and safeguards unlike the previous constitutions.

The salient provision on the “Commander-chief-powers” of the President is excessively long. Without a doubt, the new commander-in-chief provision is one of the outstanding features of the 1987 Constitution. Under said provision, while the original authority to declare martial law rest on the Executive branch, there is however an explicit command for checks and balances to achieve the desired result. As will be seen later, the Congress and the Supreme Court have significant roles to play when the nation is under the clutches of martial rule.

The power to declare martial law flows from the “Commander-in-chief” powers of the president. By virtue of Section 18 of Article VII of the 1987 Constitution, the president is bestowed with a sequence of graduated powers from the most to the least benign. The most benign power refers to the “Calling-out power” of the President. Thus, “whenever it becomes necessary” he (President) may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. But what will happen if in the exercise of the “Calling-out power” the President fails to suppress the existence of lawless violence or prevent an impending invasion or rebellion? Faced with this kind of situation, the President can now resort to the least benign powers in his commander-in-chief arsenal to quell any actual invasion or rebellion against the state.

These two extraordinary powers are; (1) the power to suspend the privilege of the writ of habeas corpus or (2) place the entire country or any part thereof under martial law. Unlike the “calling-out power,” the grounds for the proclamation of martial law are at best limited. Thus, the constitution is unequivocal when it states that, there must be an actual invasion or rebellion and “when the public safety requires it.” The initial determination whether there is an actual invasion or rebellion will have to be decided by the President as the Commander-in-chief. But the story does not end there. After the proclamation, the President will now have to persuade Congress on the soundness of his actions. At this point, the 1987 Constitution clearly delineates the participation of Congress to check on the possible abuses of power by the chief executive when acting as Commander-in-chief.

As mentioned earlier, the new commander-in-chief provision under the 1987 Constitution is quite long. Nonetheless let us capture the gist on the extent of the President’s military powers, the martial law provision in particular.

After the initial determination on the existence of an actual invasion or rebellion, when the public safety requires it, the President can now place the country or any part thereof under martial law. The duration of such proclamation shall not exceed sixty (60) days otherwise it shall be automatically lifted. Within forty-eight (48) hours following said proclamation, the President is obligated to submit a report, whether in person or in writing, to the Congress. If not in session, owing to the urgency of the situation, Congress must convene within 24 hours without need of a call. And in that regular or special session, Congress by a majority vote of all its members and voting jointly, may either revoke said proclamation or upon the initiative of the President, extend the period of the proclamation. By this time, it is Congress who will determine the duration of the proclamation depending on the persistence of the invasion or rebellion and when public safety calls for such extension.

From the wordings of the 1987 Constitution you can easily discern the intent of the framers when they drafted the Commander-in-chief provision-a recognition of the separation of powers principle. Both the President and Congress must agree to a certain extent that there is indeed a factual basis for the declaration of martial law. To which, as may be seen later, the Supreme Court in the exercise of judicial review can validly inquire and if found wanting, it will not hesitate to make the hammer fall and heavily! If you will observe, although the President has the sole power to declare martial law under the constitution, Congress may revoke said proclamation and it cannot be set aside by the President. In the same manner, Congress cannot extend the period of martial law motu propio, the initiative must always come from the President as the Commander-in-chief. In simple parlance, there is an inherent “give and take” relationship between the two co-equal departments of government in order to safeguard the power structure envisioned in the constitution.

Given the above discussion, in the end the buck stops with the Judicial branch mainly, the Supreme Court. Let us examine then the function of the Supreme Court under the new rule.

On historical note, Marcos Supreme Court in the case of Aquino v. Enrile had put an imprimatur on the legitimacy of the Sept. 21 proclamation. That infamous case drastically modified the original scope and effects of martial law as embodied in the 1935 Constitution. Now, all of these are purely of historical and academic value because of the new provisions in the 1987 Constitution abandoning the doctrine laid down in the Aquino case

As the bastion of the rights and liberties of the people, the Supreme Court also has an indispensable role especially in times of national crisis. Par. 3 of Section 18 Article 7 of the 1987 Constitution says, “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 (30) days from its filing.” Before the birth of the 1987 Constitution, the power of the court to review the “determination” or “judgment” of the President as Commander-in-chief was a constitutional “no-no”-a clear violation of the time-honored principle of separation of powers. It is often viewed as a forbidden territory of the courts. Now this is no longer the rule. Although traditionally a “political question,” the 1987 Constitution has clearly abandoned this rule in favor of a much libertarian approach by making it a justiciable controversy. Hence, any citizen can now question the sufficiency of the factual basis of the martial law proclamation.

It should be borne in mind that mere proclamation of martial law does not automatically suspend the privilege of the writ of habeas corpus much less the operation of the constitution. During the state of martial law, civil courts and legislative bodies shall remain open. In line with this, military courts and agencies are not conferred jurisdiction over civilians where the civil courts are functioning. The suspension of the privilege of the writ of habeas corpus shall only apply to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. Remarkably, any person arrested for such offenses must be judicially charged within three (3) days otherwise he shall be released.

Tomorrow we will be expecting petitions filed before the Supreme Court questioning the legality of GMA’s martial law declaration in Maguindanao. I surmise that the petitions will challenge the factual bases for the imposition. Simply put, does the situation in Maguindanao constitute “invasion” or “rebellion” which will warrant the suspension of the privilege of the writ of habeas corpus and the imposition of martial law? From the looks of it the situation in Maguindanao could only fall within the definition of “lawless violence,” which is not among the situations contemplated for declaring martial law under the Constitution. Note that the martial law provision clearly states, “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.” As explained above, the President is armed with a sequence of graduated powers from his Commander-in-chief arsenal. Although initially the President makes the determination as to the existence of lawless violence, invasion or rebellion, the Supreme Court in proper cases can invalidate the imposition. Fingers crossed for now!

A Political First

Today I would like to write about campus politics, if I may. Back in college, I too had my fair share of triumphs and a bunch of disappointments as a budding student leader. As you may well know, I hail from a place where politics is synonymous with money, racial domination, and a little bit of assassination. During my time, school politics was not much of a difference. It has all the necessary ingredients of 'real politik.' Backroom-dealing, double-speaking and yes, horse-trading too were all part of this impish game called "campus politics." No wonder why most of my erstwhile colleagues are now making their respective niches on local politics. I guess, campus politics from the ol' days really helped them a lot in terms of training and experience. As for me, I had a change of heart and landed in another field but that of course, is a different story.

The day I enter school politics was the start of my transformation. Who would have thought that I would shift my interest to academics and school politics? I was a happy-go-lucky guy. I prefer grunge music over political theories. I had no political blood running in my veins. Even my mother could not believe at first that his prodigal son had just hanged his guitar on the wall and finally said goodbye to his teenage dream of becoming a rockstar. Good grief, my political science professor saw something in me. I don’t really know at that time what she meant when she said I had the potential to excel in academics. And so she groomed me as a student leader and persuaded me to run for school senator.

At the outset, joining school politics was a perfectly natural thing for me. Some say I was destined to be a pompous school politician because of my outspoken convictions as a student. That may be true, but I was also a friendly creature according to my kindergarten teacher. But let me add a caveat. (Pardon my legalese tone) I have a monkish lifestyle. Hanging out with few friends comes once in a blue moon. For a guy who values privacy more than anything else, I’m not quite sure if I could bargain it away just like that. Entering campus politics I thought meant “plastikan” with fellow students. Although I had the ample experience of being in front of the “hooting throng,” this time it would be entirely different if not strange. For one, being on stage then was easy provided I had my signature RJ guitar with me. But I mustered enough courage this time since I don’t want to disappoint the faculty teachers of the political science department. I vowed to take the lead if only to inspire others to do the same.

I can still remember the day when the presumptuous presidential candidate invited me to join his political party. He was full of the usual platitudes befitting a traditional politico. All the while he thought I was not privy with his kind of politics. But he was careful enough with his choices of words making it appear less manipulative. I had no choice really but to support his candidacy. Apparently, it was a three-cornered presidential election with two contenders belonging to same department-the education bloc and the other from the political science department. Following the old Roman strategy of “divide et impera” or divide and rule, I thought it wise to run under the latter. And so to solidify our position, I finally said yes. It never occurred to me that our senatorial line-up was a complete mess. Most of my party-mates were better off as clowns and street buffoons. Surely I thought, even with the best decisive political strategy there’s no way we could survive the campus elections. But the Machiavellian in me sensed an opportunity to bolster my image by standing on the shoulders of the clowns, if you know what I mean.

My humble alma mater has three (3) campuses situated in three different municipalities. My decision to join a well entrenched political party was partly because of geographical consideration. Who would want to join a race without a racehorse? In political terms, that would be a sure-fire political hara kiri. And not to mention the racial profiling if you are a Christian candidate. Muslim votes comprise more than half of the voting population in my school. A political party with Muslim candidates would surely help you familiarize and reach out even to the marginalized students in the isolated areas. These factors led me to conclude that I had to blend-in otherwise I would lose the elections big time.

I practically ran for school senator under a principled and idealistic platform. Instead of the usual political blah blah, I envisioned to improve the quality of parliamentary rules in the Student Council. My idea was too remote and peculiar since students could not relate with the kind of reforms I was bound to do if elected. During campaign sorties, I took the pains of introducing parliamentary procedures and its intrinsic function in the inner workings of any legislative body. Sounding almost like a pastor in the pulpit, I explained the dual purpose of my advocacy. First, to improve the quality of deliberation and proceedings in the council, and second, to have well crafted council resolutions which would truly reflect the interests of the students. I saw to it that after my political lecture, students were allowed to ask questions which would enhance student’s participation in the process. Soon I learned the technique on how to encourage even the tamest students to speak their minds and courageously ask serious questions. I made it a point that for every classroom, I would exude the aura of an educated common man whom they could rely and approach any time if elected.

In one of our campaign sorties, I promised the students that the newly constructed building of the Student Council belongs to them-our masters. Touche! Touche! I was already echoing President Magsaysay’s populist platform. In that particular campus, I was surprised by the spontaneous reaction of the students everywhere I went. I was practically mobbed. Most of them kept on chanting my name short of a mantra. And mind you, I was only aiming for the position of school senator not the presidency. Soon I became more and more familiar with the rules of school politics. I learned to smile even with people whom I secretly hated before. I also learned the art of handshake and of course how could I forget, the eye contact. In short, I quickly developed into a traditional politician or trapo.

Finally the big day came. In some designated precincts at the main campus, I was the frontrunner in the senatorial race. Unfortunately, when the votes from the distant campus arrived, I was surprised. I didn’t get any votes! It was a clear miscalculation on my part because I failed to visit that particular campus during the campaign. I simply relied on my political party to represent my advocacy. I learned that like local politics, campus politics too requires a personal touch with the voters. You have to socialize with them, laugh with them, eat with them and help them with their personal needs as students. Advocacy can take its backseat, what matters most is your presence as a candidate. And so from top 3 of the senatorial race, I ended up on the 11th spot much to my dismay.

As predicted, I was the sole survivor of our political party. Our standard bearer, despite his superb experience in political strategy, lost his presidential bid in an unprecedented three-cornered fight. The voters simply dismissed him as someone too ambitious to become student government president. For my part, I suppose my youthful idealism helped. I convince majority of the school population about my sincerity and my desire to introduce honest-to-goodness reforms in the student council.

At the council, I was surprised to learn that I was practically alone in the wilderness. While there were three of us who belonged to the opposition bloc, the two seemed impervious to the numbers game in the council. They were more concerned with their own agenda. This however did not affect my mind-set as a robust school senator. Soon, the distribution for various committees was announced. It was the administration’s first declaration of war against the opposition. The three of us found ourselves in a ditch. I was assigned to head the inutile and nominal body called the Ethics Committee. Obviously, I was under the impression that ethics and politics can be one and the same. Every time I called for a committee hearing no one cared to appear much less attend the meetings. Sensing that I was furious over the behavior of the council members, the council secretary advised me not to take things so seriously. I let it pass hoping that my next move would be a big splash.

My first initiative then as duly elected school Senator was to review the outdated internal rules of the council. I deemed it necessary before we could get down to business seriously. But the obstinate members of the administration party shoot down my proposal by majority vote. Once again, I was completely demolished. Since most of them were already on their second and third terms as school senators, they would invoke “self-invented” internal rules to shut me up. Some even accused me of grandstanding during sessions every time I would raise settled parliamentary tenets. But I was up for the challenge. Having mastered the art of parliamentary rules by heart, I managed to score some points. In one of our council sessions, my finest hour I guess, I stood up and denounce the administration’s well-orchestrated move to discredit me. I lambasted the members of the majority for acting as rubberstamps of the council president. They listened intently and waited for their turns to hit me back but I managed to delay the proceedings until the session adjourned. This tactic went on for days. Soon, they too felt that all their proposals never reached the stage of voting because I would raise various well-grounded objections. The result would always end up in a deadlock. I was bound not to compromise my advocacy as a school senator. At the risk of calling me a “pain in the ass” I stood my ground confidently. Not until the timely intervention of the council president. He was quite influential being the son of a local public official. More than that, he had the unwavering support of no less than the incumbent Congressman at that time who for some reason, was very much concerned with school politics.

Together with his parrot-like executive secretary, the Council president paid me a visit at my residence. After a few beating around the bushes conversation, he made his point almost directly: “I want you to join my administration.” Sounds like the “real thing” Isn’t it? Politely, I laid down my position on the crisis besetting the Council. I expressed my frustrations over the actuations of majority of the members, who were his cohorts in the Council. Initially I said that we could never perform our job as Council members because the majority was more concerned on party affiliations than principles. I made it clear to him that all I really wanted was to elevate the stature of the Student Council as a premiere student organization. But more than this, I expressed my intention to make the Council a highly-competitive student body not only within the province but also all throughout the region. It may sound a far-fetch idea but I sincerely believe that with all the kidnapping and killing incidents reported in the media, all we could do to help our province was through academic ventures. But how could we do this I ask, since the majority refuse to support my ideas in the Council. He agreed and offered his hand as a gesture of unity. Then I proposed a compromise, sort of a win-win solution for the opposing sides. As a council member, I was fully aware of the privileges attached to my position as school senator. I vowed to use it in order to advance my advocacy. In exchange for my conditional support, he promised to approve and provide adequate funds for every school-related regional seminar during his term. For me, it was our opportunity to compete academically with other reputable schools within the region. This would also help boost our morale as true blue Basilenos in the field of academics.

True to his word, Mr. President brought unity within the council. Except for a few parliamentary outbursts, sessions were now more dignified and peaceful. The quality of deliberations too improved because of my persistence to raise the standards of council debates. From then on, the Council became a pro-active student organization. Later, owing to the nature of our position, we were also handpicked to represent our school in various academic seminars within the region. Most of the time, we would go head to head with student leaders from different universities and colleges in Mindanao. Each and every encounter would be intense, exciting and challenging. Because of our legislative training in the Council, I earned the monicker as the “outstanding parliamentarian” in one of the seminars we have attended. These were only some of the Council’s modest achievements in a span of one year but it really meant a lot to me. It was, after all, the reforms I envisioned for my humble alma mater. I just hope that the seeds we have planted fell on fertile grounds and will ultimately bear fruit in the years to come.

Indeed, experience is a great teacher. I learned so much about politics because of this brief yet exciting experience. For one, I am glad that during my journey as a student leader I never compromised my principles and ideals in favor of personal gains. I managed to come out of the snake pit called “politics” unscathed, uncorrupted and morally intact. But of course, that was school politics. I still keep in touch with some of my friends who are now enjoying the real game of fame and power. I must admit though, that some influential quarters in our town encourage me to throw my hat in the political arena for next year’s local elections. I suppose they think, and I agree with them, that youthful idealism will help foster the much needed reforms in the local political landscape.. But I turned them down for personal reasons. After years of contemplation, I still prefer to work in the academe and hopefully join the noblest profession someday. (And earn the much coveted A-T-T-Y before my name!) I have made my choice, and I know it is the right one. Till next time!

CONGRATULATIONS!!!

"Wala sa design yan, its the substance!"

I never imagined that my blog would be nominated much less chosen as one of the finalists for the upcoming Philippine Blog Awards. But they just did, and it makes me proud to be a Filipino cyberspace writer. And to my worthy opponents in the advocacy category, best of luck guys!

In lieu of this, I express my utmost gratitude to Ms.Vivian, Librarian of the Adamson University Thomas More Law Library for the nomination. The 10 finalists for best advocacy blog are as follows:

1.Autism Society Philippines
2.CyberRon
3.DISCOURSES OF A FREE MIND
4.Fide Quarens Intellectum
5.Filipino Deaf from the Eyes of a Hearing Person
6.Filipino Freethinkers
7.Foreclosure Philippines
8.Gloria Macapagal Arroyo RESIGN!
9.Greenpeace Southeast Asia
10.Nurses Notes

The awarding ceremony for Luzon will be held on October 9 at PETA Theatre, Quezon City; while the ceremonies for Visayas and Mindanao will be held on October 18 at Ayala City Sports, Cebu Business Park and October 24 at Pearlmont Hotel, Limketkai Drive, Cagayan de Oro City respectively.

A warm thank you to the organizers of Philippine Blog Awards!!!

Mabuhay ang mga Pinoy Bloggers!!! Goodluck! Fingers crossed!

Liberal Party for President

There seems to be great expectations coming from some sectors of society that Senator Noynoy Aquino will introduce a different kind of leadership if elected as president. The present clamor for change brought about the death of a former president has put the good senator on the center stage of Philippine politics. Like his heroic parents who arguably fought dictatorship under the aegis of democratic ideals, Senator Aquino is hard pressed to continue the fight. Sink or swim however, he has to take on the challenge. I do not want to sound pessimistic but I have the uneasy feeling that unless Senator Aquino will be able to show his accomplishment as a legislator, He will never get my vote!

Don’t get me wrong, but in Philippine politics, voters choose their leaders not on the basis of platforms or democratic ideals but on the strength of popularity. Politicos readily recognize the need to be popular at any cost, all in the name of political power. From electoral surveys and television commercials, politicians invest millions of pesos just to infiltrate the minds of the bakya crowd which represents the majority of the voting population. I always deplore these kinds of political gimmickry because it does not only deceive the underprivileged segment of our society it also belittles the role of the masses as particles of sovereignty. Indeed, poverty is one of the most recycled issues deliberately used by politicos to gain political victory. As the saying goes, “necessitous men are not free men.” This practice etched deeply in our damaged political culture is at best pathetic circular if we continue to act as passive voters.

Let me cite my personal experience as a voter. For two consecutive presidential elections, I had always been on the side of Aksyon Demokratiko party founded by no less than the late Senator Raul Roco. He was also the standard bearer of said party during the 1998 and 2004 presidential elections. I consistently voted for him not on the basis of his capacity to win as president but because of his principles and accomplishment as an outstanding legislator. Expectedly, my candidate lost twice in his presidential bid. This experience, no matter how distasteful to my political sensibilities, has not changed my convictions on how to choose political leaders in the succeeding elections. And believe it or not, except for the senatorial posts, my candidates hardly win the elections both in the local and national tiers.

Now focus on the present political landscape. I think the choice on whether to vote for Senator Noynoy Aquino or perhaps Celebrity Duets champion Bayani Fernando as president must be seen in this light. Apart from being a symbol or icon of change, voters must look into the track record of Senator Noynoy Aquino as a legislator and whether he truly represents the ideology of his political party. For one, the Liberal Party has always been a politically potent machine with clear-cut ideological foundations. Its past and present membership speaks for itself. I have always respected liberal stalwarts such as Franklin Drilon and Francis “Kiko” Pangilinan, both as lawyers and distinguished legislators. But what does a Liberal truly stands for? What happens if, come 2010 we will be having a Liberal sitting in the Malacanang? I think this is the proper way to look at things when we elect political leaders and that is, principles over personalities.

When we talk about liberalism, the first thing that comes to mind is the concept of freedom. With the emergence of political parties by virtue of the multi-party system under the 1987 Constitution, the concept of freedom has evolved tremendously in the political mainstreams. I wonder whether these political parties and their members truly understood what freedom really is and how it blends with the vast powers of government if placed in actual practice. I understand the arguments of those who supported the multi-party system when this was deliberated during the 1986 Constitutional Commission that framed the present constitution. While the multi-party system sought to democratize political parties and in effect giving the voters a myriad of options or alternatives during elections, the vitality of this mechanism however proved the exact opposite. In trying to rectify and erase the vestiges of the Marcos regime, the multi-party system was nothing but an affirmation of a damaged political culture. Political parties in the Philippines, except perhaps the established Liberal Party, come and go. After elections, they just disappear (some join or merge with the administration party for obvious reasons) only to resurface again during elections.

With liberalism as espoused by the Liberal Party, the concept of freedom is absolutely non-negotiable. In essence this is what liberalism is all about and some people from different walks of life could identify themselves with this basic democratic idea. In one of his essays, German political analyst Ronald Meinardus describes in brief, what liberal thinking is all about, viz:

“Liberal governance always strives to promote and increase the freedom of all members of society. It aims at establishing a framework that permits the citizens to manage their lives according to their own preferences. Government should restrain from controlling citizens and instead, respect and defend individual rights. Liberal governance implies that everyone be treated equally regardless of race, social status, views and beliefs or other personal preferences. Here the religious factors comes in, arguably a most disruptive element in many parts of the world. In a liberal order, state and religion are separated.”

Theoretically, liberalism posits two school of thoughts on the concept of freedom. According to Dr.Meinardus the most prominent of the two competing thoughts is the one that elevates the postulates of freedom over state powers. Thus, "One group of liberal advocates defines freedom in a more narrow fashion focusing on the promotion of liberty against state power. These liberals, who in the United States have come to be termed "libertarians" argue that the state poses the main threat to freedom. Therefore they argue, freeing the citizen from government regulation should top any liberal agenda. Liberalism obviously contributed to the growth of democracy all over the world. In historical terms, the great liberal achievements have been made the spread of democracy, the establishment of the rule of law, respect of human rights and last but not the least, the expansion of the market economy.

Unlike his father, Senator Noynoy Aquino is a man of unquestionable character and motive to run for the presidency. Does he have what it takes to maneuver the ship of state towards the right direction? That question to me is somewhat a grey area for now. I have not yet seen nor heard closely Senator Noynoy Aquino’s views on various issues concerning freedom of expression versus governmental powers, freedom of religion versus governmental regulation, and of course individual liberties. I also would like to hear him debate with his fellow presidential contenders on various pre-election fora like the ones sponsored by major television networks in the country today. I am sure the good senator has good insights on political, economic and social issues. Aside from the usual speeches on the advancement of democratic ideals, I have yet to see him defend democracy in the truest sense of the word. How about his position on Constitutional change or perhaps the Visiting Forces Agreement? These are only some of the pressing issues he has to contemplate as early as now. I do not consider myself as an absolute liberal nor a conservative type of citizen. But part of my ideology leans toward the protection of individual liberties under a stable constitutional democracy. Whether Senator Noynoy Aquino or the Liberal Party represents my kind of politics or thinking is a question that remains to be seen in the next few days. Abangan!

Some Thoughts on Morality

Have you ever wondered why there is such a thing as right and wrong? I’m sure you did. But I bet, you never bothered to inquire further much less visit the nearest library and do some philosophical or religious readings. “Why bother, It’s not worth my time” a friend of mine said. Then he continued, this time with a pragmatic and ringing response, “From where I sit brod, the idea could have been implanted in my head since I was born.” I was initially taken aback by his answer. I told myself he was supposed to be inquisitive if not a skeptic like me. I should know this for a fact. For several times, I had engaged in a heated cockfight with him way back in law school. It took me a while to realize that, like his indecisive response, his Catholic faith too suffers from the same foundational cracks. At that precise moment, all I can do was to sympathize with him. I felt sad because I have known him as a devout Catholic and a spirited defender of faith. Yet, when his reasons on faith are put to stringent test, I can obviously see the inconvenient irony. Like a mentos candy, his faith appears to be solid and cool on the outside but breaking down inside. Pardon the pun, but I can think of no better analogy than this. Well, for a time aren’t we all? I will not try to second guess your response if the question is presented before you. Tough issues on faith and life are not the most convenient topic to be talk about in coffee shops or dinner tables. They are often viewed as utterly boring and anticlimactic. In fact, when I raise this issue in one of our drinking sessions, a drinking buddy of mine pounded on the table and said, “Pare, what are you talking about, aren’t we suppose to have fun? Yes, alcohol and faith are not perfect buddies. At least, I got the point this time.

In the philosophical arena, when a well-informed atheist wants to argue that God does not exist or that He is simply a pigment of our imagination, the arguments appear to be so convoluted for anyone bereft of philosophical consciousness on the topic. I find it frustrating when Christians shy away with these kinds of intellectual objections. And to make it more candid, a typical Christian will respond by saying, “God forgives you bother” or that “I rebuke you in the name of Jesus!” BAM! That goes straight to my stomach. Pathetic isn’t it? My point here is simple. As Charles Colson puts it, “The Bible commands us to take every thought captive to the obedience of Christ. If we fail, we will find it increasingly difficult to present the gospel and we will lose influence in the culture.” In my essay entitled, “Why I am still a Christian” I dealt with the existential aspect of faith and reason to support my Christian beliefs. I narrated in part my supposed intellectual doubts on the meaning of life, the origin of morality and ultimately, the existence of God. By way of conclusion, I encourage the readers that it is perfectly normal to encounter doubts and objections if only to strengthen their Christian faith. Through doubts we continuously pursue the truth.

Going back to my friend in law school, what does he mean when he said that “the idea could have been implanted in my head since I was born”? Seen in the philosophical context, his response raises two possible assumptions. He seems to accept that there is some kind of a moral standard from which to distinguish right from wrong. But am I suppose to infer based on his response that that he posits a moral law giver, that is God as the source or revealer of that moral standard? Or can morality exist apart from God? The problem however is not as simple as these two assumptions.Time and again, philosophers and defenders of faith wrestled with this question. The usual old-age arguments for or against God’s existence could be summed up in four major points; (1) the argument from (or to) design, (2) the first cause argument, (3) the argument of morality, and (4) the existence of evil. Of these philosophical arguments, I find the case for morality as the most persuasive evidence to prove the existence of a deity. Not because it is the easiest one amongst the usual objections, but my preference has something to do with my own existential and philosophical journey.

In discussing morality, one cannot simply set aside God in the picture. God as the utmost revealer of right and wrong, provides us with a moral point of reference or a starting point from which to establish our meaning and purpose in life.To put it more bluntly, without Him, everything in this world is meaningless. My point then is this. If God is not in the picture in terms of defining what morality is, what then could be our moral framework from which to distinguish right from wrong? The impact of a Godless society is of course terrifying and very dangerous. How then can Adolf Hitler justify his horrible actions when he exterminated the Jews during the World War II? Or that of Josef Stalin, when he masterminded the large-scale murder of his own people? Were they appealing to some sort of a moral justification for their actions? The answer is yes. This is where the term morality becomes a free-for-all concept for everyone to enjoy. Now then, what could be the moral point of reference for saying that the Holocaust was a moral act? Hitler and Stalin as masters of their own fate clearly subscribed to the atheist worldview-the absence of belief in the existence of God. They deplore Christian theism and religion in general, as something that hampers human progress. Nietzsche for instance viewed religion as the nadir of human progress because it elevated such concepts as morality, repentance, and humility. To him, we cannot build a civilization of power based on these Christian virtues. Now how about that as an objective moral criterion? Logically, having no point of moral reference (except perhaps Nietzsche idea of civilization) to arrive in an objective moral standard, Hitler and Stalin decided to invent their own system of right and wrong. A system to be determined solely on the basis of personal taste or individual preference. Russian novelist Fyodor Dostoevsky was right when he said that without God everything is permissible. One does not have to be a rocket scientist to discern the ramifications of a Godless society. Without God, we cannot have objective moral guidelines to follow. What we have is a purely subjective discernment on where to distinguish right from wrong.

Now, lest I be accused of bias, let us assume for the sake of argument that God is not an essential element in determining right and wrong. Otherwise stated, take out God in the picture and see if we could at least have an objective standard for morality.

In his magnum opus Critique of Pure Reason, philosopher Immanuel Kant attempted to justify a system of right and wrong solely based on the power of reason. Simply put, a moral framework conceived apart from God. In Can Man Live Without God, renowned Christian apologist Dr.Ravi Zacharias simplified Kant’s two simple theses to support his proposition in this manner; First, he asserted that the rules of morality were rational and hence compelling for all rational beings…His foundational premise was clearly and without equivocation that human beings could arrive by unaided reason at a normative dictum for right and wrong. Second, he believed that mankind had within itself the capacity to perform that “ought” in its most noble demands upon the will. Therefore by our reason we can know what is right, and by our will we can do what is right. Under the first, the implication is clear: since the purported rules of morality are in essence reasonable, it is but proper for men as rational beings to follow such rules. The second however is a bit thorny when viewed philosophically. Like any other philosophical theories, Kant’s assertions have several consequent assumptions. It seemed that Kant had the illusion that man is basically good. And that man had an inherent capacity to distinguish right from wrong at first sight using pure reason alone as its basis. As correctly pointed out by Dr. Zacharias, in order to build a reasonable and coherent ethical theory, one must first establish the telos or the purpose and destiny of human life. To Christians, the so called telos is easier to find for there can only be one source of a man’s purpose and destiny in life, and that is God as the revealer of right and wrong. Now, non-believers may raise the argument on the need to establish initially the “purpose” and “destiny” in order to become moral in the theistic sense. The answer is a bit simple: one must have at least a valid starting point or a moral point of reference for one to discern an objective moral standard. That “ought” discernable by men as pointed out by Kant, was the same “ought” which prompted Hitler to exterminate the Jews en masse. That fateful event in human history was the logical consequence of a moral standard structured upon pure reason coupled with man’s desire to play God. The point I wish to make here is this, without the telos centered upon the character of God, any ethical theory will eventually lead to man’s destruction. I can see no point of commonality here, what we see are purely whimsical and subjective moral standards for everyone. What may be reasonable and moral for Hitler may not be reasonable for Mother Teresa isn’t it? In one of the gas ovens in Auschwitz, Hitler's words were inscribed-I want to raise a generation of young people devoid of conscience, imperious, relentless and cruel. Now how about that for a moral point of reference? Are we supposed to trust our own reasons here in determining what morality is? These are some intriguing questions that even Christians must consider in sperading the word of God to non-believers and ultimately to the atheists.

And so to my good friend, it has been my ardent wish that you will find time to read this article so you may be able to position your faith in the right direction. While I do not claim philosophical or intellectual superiority in this writing, but my point is crystal clear: the idea of morality points only to one direction as its primary source and that is God. Kant was right when he said that “man is a rational being.” In the same way, I dare say we Christians too are rational believers of God and followers of Christ. Let us converse about our Christian faith and defend God against intellectual or philosophical objections because in the end we are in fact honoring God as the ultimate source of man's wisdom. Make no mistake about this.

Note:
I highly encourage everyone to read Dr.Ravi Zacharias' critically acclaimed book Can Man Live Without God. This marvelous book basically "interrupted my philosophical slumber" as a Christian. I urge you to do the same.

Among Ed and the State

Alas, the messiah has spoken! Last Tuesday Pampanga Gov. Eddie “Among Ed” Panlilio has declared his intention to join the 2010 presidential race after hearing God’s voice. To begin with, as fellow believer in Christ I will not question the validity of his claim nor question the authenticity of the “voice” as one coming from heaven. But let me separate my ecclesiastical thoughts for the moment and offer a few secular observations concerning Among Ed’s controversial statement. Reading between the lines, what I’m trying to say is this; a mixture of politics and religion is a dangerous precedent in any body politic. At least that is what my history book says. In the realm of politics even the most despicable aspirant for power can recite scriptures or can freely claim that he is the duly anointed one much less a statement coming from a saintly character like Among Ed. Even the “little girl” from Malacanang claimed, to a certain extent, that her presidency is but a product of divine intervention. Yes, like Among Ed she also received divine instructions and no one dared to challenge her to prove the veracity of his statement. Nonetheless, I will dispense my political analysis on this issue. My utmost concern has something to do with the legal separation of two major institutions in our society, the Church and State, as commanded by no less than the Constitution.

While I highly welcome Among Ed’s decision to run for the presidency for the May 2010election, there is however one thing I would like to clarify with his upcoming presidential bid. For all intents and purposes, Among Ed has not technically abandoned priesthood even while serving as governor of Pampanga. In fact, he can regain his stint as a priest had he lost the local election. I’m not quite sure this time what will be the position of Among Ed owing to the fact that he will be eyeing for the highest position of the land. In an interview, Among Ed said that he would formally request for dispensation from the Church upon filing his certificate of candidacy. Nonetheless, he was quick to reiterate that he would want to go back to priesthood should he lose in his presidential bid. Seen on its face, the statement of Among Ed can be confusing if not deceiving. Priest-on-leave or not, he is still a priest. The Church on the other hand seems to play the political cards too close to its chest. In refusing to endorse the candidacy of Among Ed it does not however give a clear and decisive statement on his membership on the clergy. I may be wrong in all this, but if Among Ed wins the presidency, it will also mean one thing-a silent victory for the Catholic Church. I urge the Church to do something about this to erase any doubts concerning Among Ed’s candidacy.

Under Canon Law, priests are not generally allowed to participate in partisan politics or hold public offices involving the exercise of civil powers. But from the looks of it, this prohibition is more of an exception rather than the rule. To be clear, the soundness of this rule is not entirely our concern, let the politically potent CBCP or the feisty Archbishop Oscar Cruz handle this problem. My pressing question however is this: If there is indeed a Canon law violation when clerics hold public offices, does it necessarily follow that there is a constitutional breach? In other words, will there be a violation of the separation of Church and State principle if Among Ed will eventually become the next president of the Republic? I will try to answer this question to the best of my knowledge on the rudiments of constitutional law.

The Constitution by way of a general principle says that, “The separation of Church and State shall be inviolable.” Furthermore Article III, Section 5 enunciates that, “No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof.” (Also known as the "non-establishment clause.") The idea behind this principle is best explained by Justice Isagani A. Cruz in this wise, “The rationale of the rule is summed up in the familiar saying, “Strong fences make good neighbors.” The idea is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective jurisdictions. The demarcation line calls on the entities to render therefore unto Caesar the things that are Caesar’s and unto God the things that are God’s.” The rationale behind this principle is too obvious, a merger between the church and state tends to destroy government and degrade religion. This does not mean however that both institutions must treat each other with hostility. In fact, the Constitution itself recognizes the beneficial aspects of religion to promote the well-being of its citizens and the nation as a whole. Unlike our preceding constitutions, the Preamble of the 1987 Constitution uses the phrase, “imploring the aid of the almighty God,” to be more consistent with Filipino religiosity. Tax exemptions are also given on properties used directly and exclusively for religious purposes. The Church on the other hand, openly participates on various political and civil issues affecting the government. The Church, especially in our country, has always been on the frontline of our political history and has somehow directed the course of the ship of state.

But then again the Constitution marks the thin line between these two key institutions. If you will examine the wordings of the constitutional provisions, the thrust of the principle is strictly geared towards the State and not the Church. Conversely, the provision on the separation of Church and State is a limitation directed upon the State and it’s institutions-primarily the government. The provision on the Bill of Rights for instance, cautions the State not to pass laws which will otherwise favor one religion over the other. Certainly, who has the power to pass laws, the Church or the State? Obviously, it is the State as represented by its legislative organs mainly, Congress and to a certain extent, the local legislative bodies. On historical angle, under the Spanish regime, the Church was clearly empowered to perform acts or issue directives which have the force of law. Now, the civil powers have been reverted back to the state. At any rate, the rule under constitutional law is clear; the state must always remain neutral in its dealings with various religions. Moreover, the inclusion of the “non-establishment clause” in the Bill of Rights elevates the principle of separation of Church and State in the same category with other constitutional precepts such as the due process clause, the rights of the accused, freedom of expression and many more. What then is this the clear import of this analysis? Apparently, in one sense these constitutional rights protect individuals against the vast and intrusive powers of the State. In another sense, the constitution strictly limits the awesome powers of the state in relation with individuals. Thus, while the State can legislate anything and everything under the sun, it cannot however pass laws which run contrary to the limitations set forth in the Bill of Rights like the “non-establishment clause.”

In view of this staid disquisition, the desire of the venerable Among Ed to run for the presidency while ethically challenged (as explained above), the same may be constitutionally defensible. It has always been my burden to offer a sensible explanation whenever friends raise the billion dollar constitutional question on church and politics. Can the church endorse the candidacy of Among Ed or perhaps Bro. Eddie Villanueva? To this, my usual answer would be a resounding yes. Certainly, the Church just like any secular organization can freely participate in the “marketplace of ideas” especially on matters of public concern like presidential election. The wall of separation does not preclude the church to exercise constitutional guarantee of free speech and expression and the right to petition the government for the redress of grievances. The more difficult question though is when a churchman decides to run for public office. Worse, what if he wins the election and thereby assumes the public position? In the 2004 presidential election, Bro. Eddie Villanueva of the Jesus Is Lord church joined the presidential race but miserably failed. In my hometown Zamboanga, an amiable priest tried his luck for the mayoralty post against a more experienced and prominent candidate in the parochial political arena. Like Among Ed, he too heard the voice from heaven. Unfortunately, the churchman failed to muster enough votes and lost his mayoralty bid fair and square. The candidacy of Among Ed as governor of Pampanga in the 2007 local election relatively changed the face of Philippine politics. Consequently, he became the first ever Filipino priest to sit in public office. And because of this major turning point, no one dared to lift a finger questioning the legality of Among Ed’s assumption as governor of Pampanga. But still, the billion dollar question remains unsettled. Nonetheless, the participation of "churchmen-politicians" in the political arena indicates the need for alternative “apolitical” candidates other than the traditional players during elections. And in doing so, the supposed high wall which separates the church and the state remain intact, at least in the constitutional sense.

As mentioned earlier, my concern is not focused on Among Ed’s preoccupation to aspire and perhaps even to lead the nation as the highest official of the land. But here’s a thought, what is constitutional is not necessarily moral. Personally, I have nothing against Among Ed if he really wishes to introduce genuine political reforms in our country, we should all be grateful about that. But that is not the issue here. With this piece, I challenge the Catholic Church to strip naked Among Ed’s sotana the moment he files his certificate of candidacy for the presidency. The Catholic Church certainly has the sole authority, whether on the basis of Canon law or any religious dogma to rule on Among Ed’s case. Frankly, I know nothing about church discipline or church tribunal procedures applicable to churchman like Among Ed. I trust that the Church will exercise prudential judgment on this matter. As for Among Ed, will it be priesthood or politics? Either way, it’s all or nothing. Take your pick father!

REFERENCES:
The 1987 Constitution: A Commentary by Fr. Joaquin G. Bernas
Constitutional Law by Justice Isagani A. Cruz
The 1987 Constitution

THE POWER THAT LIES IN THE LITTLE GIRL'S HANDS

There is a talk going around recently that because of several bombing incidents in some parts of Mindanao the “little girl” (If I may use the phrase of my constitutional law professor.) from Malacanang might impose martial law in no time. The charge, according to news reports is that the President is out to use the bombing incidents in Mindanao and the heightened alert in the metropolis to declare a state of national emergency. From there, it will eventually lead to the declaration of martial law. What is the catch then? Well, I think what the opposition is trying to say is that by declaring martial law the President can stay in power beyond her term. Surely if this will happen, we will be facing a “No-El” scenario come May 2010. The administration however strongly denied this speculation claiming that this is just another propaganda spearheaded by the opposition to cast the President once more in a bad light. In a press interview, Secretary Remonde assured the public that the government can solve the bombings without declaring martial law. I’m sure they can, but are we suppose to trust Arroyo administration nowadays following the Conass fiasco? I think not. Call me a pessimist, but this administration has an unusual hobby of tinkering with the constitution not only once but many times! Personally, like my conviction against the notorious HR 1109, I am not inclined to give this administration the benefit of the doubt on this issue as well.

Propaganda or not, the clear import of all this is for us to examine the constitutional safeguards in place whenever the “Commander-in-chief” so decides to declare martial law under the auspices of the 1987 Constitution.

History tells us that our country had such a tragic experience with martial law. In fact, the mere mentioning of the term alone may be enough to cause alarm and fear to the sensibilities of every Filipino. Like the name “Voldermort” in the Harry Potter series, martial law also has its share of evil and horrible connotations in our country. But one may ask, if martial law is such an evil concept in Philippine history, why did the framers of the 1987 Constitution sought to retain this power in the hands of a robust “Commander-in-chief”? Why not scrap it altogether and bury it for good? To these questions, a sneak glimpse on the essentials of martial law in the context of American constitutionalism is fitting

Martial law is essentially founded upon the police power of the state. Joking aside, what is being referred to here is not the power vested with the police force or the PNP. Obviously, this has something to do with one of the inherent powers of the state. To be clear, the textual definition of police power is that, “power vested in the legislature by the constitution to make and establish all manner of wholesome and reasonable laws…as they shall be the judge to be for the good and welfare of the state and of the subjects of the same.” The idea of martial law is to protect “public safety” against invasion or rebellion which in essence, is one of the concerns of police power. The difference however is that while police power is ordinarily lodged with the legislature (meaning the law making bodies of the state), martial law powers had been placed in the hands of the President as the Commander-in-chief of the armed forces. In his recent Philippine Daily Inquirer column entitled “What is martial law?”, Fr. Joaquin G. Bernas has this observation, “What is peculiar about martial law as police power, however, is that, whereas police power is normally a function of the legislature executed by the civilian executive arm, under martial law, police power is exercised by the executive with the aid of the military and in place of “certain governmental agencies which for the time being are unable to cope with existing conditions in a locality which remains subject to the sovereignty.”

The September 21, 1972 declaration via Proclamation 1081 issued by then President Ferdinand Marcos was “technically” based on the 1935 Constitution. Back then, there was no specific jurisprudence (decided cases by the Supreme Court) on martial law. Thus, the martial law provision in the 1935 document was to be commonly understood in line with the American concept as to what martial law is in the strictest sense. According to a noted American law professor, martial law was an instrument for insuring public safety in times of emergency and for protecting the continuance of normal civil government. The clear implications from this traditional view would have to be first, martial law was not meant to be a substitute for civil government. Second, it was never meant to supersede law. And lastly, it neither calls for the suspension of constitutional rights. These were the inherent restrictions directed upon the administrator of martial law as commonly understood at least in the context of American constitutionalism. Significantly, this concept had been impliedly incorporated in the martial law provision under the 1935 Constitution.

What happened under the Marcos regime was a total deviation from the normal route to attain the martial law objective-“public safety” whenever the state is threatened by invasion or rebellion. To accomplish the purported “objectives” of the Sept. 21 declaration, President Marcos as the martial law administrator, armed himself with extensive powers by exercising legislative powers as well. In a blink of an eye, the theory behind the vitality of martial law as “state self-protection measure” had been put to a stringent test like never before. The draconian decrees issued by the President were later affirmed (in short, the court legitimized the actions of President Marcos.) by the Supreme Court as necessary measures to attain the objectives of the Sept. 21 declaration.

For these reasons, though martial law is often viewed as a monstrous power to be avoided, it likewise has its noble and necessary objectives to preserve law and order. Having learned from the lessons of history, the framers thought it wise to retain this power under the 1987 Constitution, but not without expressed restrictions and safeguards unlike the previous constitutions.

The salient provision on the “Commander-chief-powers” of the President is excessively long. Without a doubt, the new commander-in-chief provision is one of the outstanding features of the 1987 Constitution. Under said provision, while the original authority to declare martial law rest on the Executive branch, there is however an explicit command for checks and balances to achieve the desired result. As will be seen later, the Congress and the Supreme Court have significant roles to play when the nation is under the clutches of martial rule.

The power to declare martial law flows from the “Commander-in-chief” powers of the president. By virtue of Section 18 of Article VII of the 1987 Constitution, the president is bestowed with a sequence of graduated powers from the most to the least benign. The most benign power refers to the “Calling-out power” of the President. Thus, “whenever it becomes necessary” he (President) may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. But what will happen if in the exercise of the “Calling-out power” the President fails to suppress the existence of lawless violence or prevent an impending invasion or rebellion? Faced with this kind of situation, the President can now resort to the least benign powers in his commander-in-chief arsenal to quell any actual invasion or rebellion against the state.

These two extraordinary powers are; (1) the power to suspend the privilege of the writ of habeas corpus or (2) place the entire country or any part thereof under martial law. Unlike the “calling-out power,” the grounds for the proclamation of martial law are at best limited. Thus, the constitution is unequivocal when it states that, there must be an actual invasion or rebellion and “when the public safety requires it.” The initial determination whether there is an actual invasion or rebellion will have to be decided by the President as the Commander-in-chief. But the story does not end there. After the proclamation, the President will now have to persuade Congress on the soundness of his actions. At this point, the 1987 Constitution clearly delineates the participation of Congress to check on the possible abuses of power by the chief executive when acting as Commander-in-chief.

As mentioned earlier, the new commander-in-chief provision under the 1987 Constitution is quite long. Nonetheless let us capture the gist on the extent of the President’s military powers, the martial law provision in particular.

After the initial determination on the existence of an actual invasion or rebellion, when the public safety requires it, the President can now place the country or any part thereof under martial law. The duration of such proclamation shall not exceed sixty (60) days otherwise it shall be automatically lifted. Within forty-eight (48) hours following said proclamation, the President is obligated to submit a report, whether in person or in writing, to the Congress. If not in session, owing to the urgency of the situation, Congress must convene within 24 hours without need of a call. And in that regular or special session, Congress by a majority vote of all its members and voting jointly, may either revoke said proclamation or upon the initiative of the President, extend the period of the proclamation. By this time, it is Congress who will determine the duration of the proclamation depending on the persistence of the invasion or rebellion and when public safety calls for such extension.

From the wordings of the 1987 Constitution you can easily discern the intent of the framers when they drafted the Commander-in-chief provision-a recognition of the separation of powers principle. Both the President and Congress must agree to a certain extent that there is indeed a factual basis for the declaration of martial law. To which, as may be seen later, the Supreme Court in the exercise of judicial review can validly inquire and if found wanting, it will not hesitate to make the hammer fall and heavily! If you will observe, although the President has the sole power to declare martial law under the constitution, Congress may revoke said proclamation and it cannot be set aside by the President. In the same manner, Congress cannot extend the period of martial law motu propio, the initiative must always come from the President as the Commander-in-chief. In simple parlance, there is an inherent “give and take” relationship between the two co-equal departments of government in order to safeguard the power structure envisioned in the constitution.

Given the above discussion, in the end the buck stops with the Judicial branch mainly, the Supreme Court. Let us examine then the function of the Supreme Court under the new rule.

On historical note, Marcos Supreme Court in the case of Aquino v. Enrile had put an imprimatur on the legitimacy of the Sept. 21 proclamation. That infamous case drastically modified the original scope and effects of martial law as embodied in the 1935 Constitution. Now, all of these are purely of historical and academic value because of the new provisions in the 1987 Constitution abandoning the doctrine laid down in the Aquino case

As the bastion of the rights and liberties of the people, the Supreme Court also has an indispensable role especially in times of national crisis. Par. 3 of Section 18 Article 7 of the 1987 Constitution says, “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 (30) days from its filing.” Before the birth of the 1987 Constitution, the power of the court to review the “determination” or “judgment” of the President as Commander-in-chief was a constitutional “no-no”-a clear violation of the time-honored principle of separation of powers. It is often viewed as a forbidden territory of the courts. Now this is no longer the rule. Although traditionally a “political question,” the 1987 Constitution has clearly abandoned this rule in favor of a much libertarian approach by making it a justiciable controversy. Hence, any citizen can now question the sufficiency of the factual basis of the martial law proclamation.

It should be borne in mind that mere proclamation of martial law does not automatically suspend the privilege of the writ of habeas corpus much less the operation of the constitution. During the state of martial law, civil courts and legislative bodies shall remain open. In line with this, military courts and agencies are not conferred jurisdiction over civilians where the civil courts are functioning. The suspension of the privilege of the writ of habeas corpus shall only apply to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. Remarkably, any person arrested for such offenses must be judicially charged within three (3) days otherwise he shall be released.

I will not consider myself as a feisty critic of Gloria Arroyo’s administration. I prefer to deal with the legal or constitutional issues surrounding her stint as the President of the Republic. Time and again, I deplore whenever this administration preach “good governance” or “public welfare” at the expense of the fundamental law. That “unusual hobby” or “baka kc makalusot” mentality shows how public servants visualize the rule of law to suit their preoccupation. If you will observe, both the Conass issues and the martial law “speculation” have a common denominator-perpetuation of political power. Indeed, absolute power corrupts absolutely! In any case, we should be sensitive and vigilant enough to protect our fundamental law against those who wishes to hold power in perpetuity.

I just hope that the awesome power that lies in the little girl's hand will be utilized under highly extreme situations as envisioned in the constitution. Given her fetish for power, I wonder if she will ever make the coup de grace on this issue. Abangan!

More on the stupidity of HR 1109

In my recent article entitled “It takes two to Cha-cha: The stupidity of HR 1109,” I must say that I ventured into the realm of the unusual. And why is that? For one, I am elated because I got favorable reviews from conscientious citizens who are too passionate in expressing their disgust against the notorious HR 1109. However, like any other masterpiece, we cannot but avoid dissenting views from the cynics and also from legal minded critics. For this, I am constrained to respond by expounding a little more on my arguments and theories surrounding the constitutional implications of HR 1109. To be clear, the arguments are “anticipatory” in nature because a case has yet to be filed in the Supreme Court to clarify the various interpretations on the pertinent constitutional provisions on amendments and revision. To be sure this is not a futile academic exercise. In fact, by discussing the constitutional aspects of HR 1109, we will in effect expose the stupidity of those Congressmen who voted to adopt this worthless piece of trash.

To begin, I must admit that there is no such thing as a watertight interpretation to the 1987 Constitution, the provision on the amendatory process in particular. More often than not, owing to the fact that most of its provisions are ambiguous, we are inclined to poke holes in every provision of the constitution to suit our current disposition. This is what the proponents have in mind when they ventured to propose amendments to the 1987 Constitution via HR 1109 calling for a unicameral constituent assembly.

Again, in my recent article I echoed initially the position taken by the esteemed Fr. Joaquin G. Bernas of the Ateneo Law School. And to make it more staid and understandable, I expounded and stretched the arguments a little more.

In that article, I took the position that the “three-fourths” vote requirement under Article XVII section 1 pertains to the proposal for amendments or revision made by Congress when acting as a constituent assembly. The Constitution but sets an explicit limitation when it comes to the manner of approving the proposal on constitutional amendments, this is where the three-fourths vote comes into play. This is contrary to the view that the three-fourths vote refers to the manner of convening the constituent assembly. Unlike the present Constitution, a different rule is required under the 1935 Constitution before Congress can act as a constituent assembly. The 1935 Constitution says,”The Congress in joint session assembled, by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately may propose amendments to this Constitution or call a convention for that purpose.” Under said provision, a congressional resolution passed by both houses calling for a joint session is necessary before Congress can act as a constituent assembly. But this was before of course. As presently worded, the 1987 Constitution is explicit when it enunciates that, “Any amendment to or revision of, this Constitution may be proposed by: (1) The Congress, upon the vote of three-fourths of all its members…” Believe it or not, the Congress as it now sits is already a constituent assembly.

On personal note, my brother (who by the way is a lawyer and a staunch advocate of the Constitution) corrected me when I said that by virtue of Article XVII Congress automatically converts itself into a constitutional assembly. To him, the House and the Senate is a perpetual constitutional assembly. I shall grant him that because actually there is no conflict with regard to our respective positions. I totally agree with him but I used the automatic conversion theory merely to distinguish constituent functions under Article XVII (Amendments and Revision) from legislative functions under Article VI (The Legislative Department). For non lawyers, these dual functions of Congress can be confusing because by way of a general rule Congress is tasked mainly to enact laws, thus the need for a distinction.

Nonetheless, let us be clear on this matter. It is my position that until and unless Congress decides to act pursuant to Article XVII, the functions of a constituent assembly remains completely dormant. Article XVII is the constitutional provision which activates the functions and powers attached to a constituent assembly. And so, when the House unilaterally adopted HR 1109 seeking to convene Congress as a constituent assembly, that to me is a useless and futile exercise. (At least in the constitutional sense) What may be unconstitutional is the fact that said resolution allows both Houses to vote jointly in the manner of proposing amendments. Here, we will now be talking about the function of Congress when acting as a constituent assembly. As Fr. Bernas opined, “The question that must be asked is not how Congress becomes a constituent assembly, but rather how Congress must function when acting as a constituent assembly.” In other words, when Congress functions as a constituent assembly, must they convene in joint or separate session? In addition, must they vote separately or jointly?

As I have said in my previous article, it would be more consistent with the bicameral structure of Congress that both Houses must convene in a joint session but voting separately. Thus; “In view of all this, I therefore subscribe to the view of Fr. Bernas that to be consistent with the bicameral structure of Congress, the “three-fourths vote of all its members” must be interpreted to mean three-fourths of all members of each house voting separately…As to the question whether the House and the Senate should convene jointly or in separate sessions, I think it is best that both Houses must cross swords with each other face to face. Take note that what is at stake here is not ordinary legislation but amendments to the Constitution. Although the Constitution does not command a joint session in the manner of proposing amendments, neither is there a prohibition for them to do otherwise. In any case Congress certainly has the discretionary power to set its own internal rules as an independent branch of the government”

Admittedly, the separate voting formula is in line with the position taken by Fr. Bernas which to me is the more practical and logical solution to the present controversy.

I am not unaware of the generally valid argument that if we follow the position of Fr. Bernas in the procedure of proposing amendments (separate session and voting separately), in effect we will be reducing the amendatory process into an ordinary legislation. Obviously, the amendatory process is far more delicate and momentous endeavor because we are dealing here with the very source of governmental authority, the Constitution. Logically we can never equate the value of the Constitution with an ordinary legislation. For one, unlike ordinary legislation which requires the only the approval of the President, amendments to the Constitution requires the participation of the electorate for ratification in a plebiscite. Again, the question ultimately boils down to the purposes for having a bicameral legislative body in the 1987 Constitution. Among the traditional arguments for bicameralism is the fact that it allows for a more cautious or careful study of legislation. Thus, as I said before, “two heads are better than one.” Indeed bicameralism means two houses, the House and the Senate, acting independently and occasionally checking each other. Theoretically, the purpose behind all of this is for them to craft quality legislation.

By espousing a joint session but voting separately in the amendatory process, the purpose is ultimately the same, the quality of the proposed amendments to the Constitution. If it works with ordinary legislation, what could be the possible reason for it not to apply to the amendatory process? To my mind there is none. As I said before, a proposal partakes to the nature of a “recommendation.” It is the sovereign people who will have their last say on whether to approve or reject the proposed amendments. Moreover, if we put a premium to ordinary legislation by having separate session and separate voting, the more reason it should apply to proposed amendments because of its significant impact in the lives of our people and to the stability of the nation as a whole.

As I mentioned in my recent article, the theory behind HR 1109 is a result of a distorted interpretation on the amendatory process as envisioned in the 1987 Constitution. I was kind enough to categorize it as an “outrageous” interpretation. On second thought however, I will now call it as an “out of this world” constitutional construction both in essence and in substance. If these recalcitrant Congressmen of ours refuse to heed to the clamor of the street parliament, it is best to arm the public with adequate knowledge so that they may have a solid fulcrum to express their opposition. I just wish that these issues will be settled once and for all by the Supreme Court and let the record reflect for posterity how stupid HR 1109 is. Nuff said for now.

It takes two to Cha-cha:The stupidity of HR 1109

In bold letters, the headline of the Philippine Daily Inquirer reads: CON-ASS SPARKS OUTRAGE. The public indignation ostensibly stemmed from a hodgepodge legislative proposal coming from the House of Representatives in the form of House Resolution 1109. In the flurry of charter change, every time lawmakers call for the amendment or revision of the 1987 Constitution, the public often reacts violently. The 1987 Constitution is by no means a perfect document; and there seems to be a general agreement among the people that there is a need to change the present Constitution. But like in the past, the real problem of constitutional reform lies in the “mode” and the “timing” of change. This brings us to the thrust of HR 1109, a proposed resolution calling for both houses of Congress to convene into a “constituent assembly” and by voting ‘jointly,’ propose amendment to the 1987 Constitution.

True, the Constitution is what the Supreme Court says it is. But since this is a grey area in constitutional law, I would like to offer my view. I say, HR 1109 is unconstitutional.

In discussing the nature and function of a constituent assembly, one must first appreciate the relevant provisions dealing with amendments or revision under the 1987 Constitution. Article XVII section 1 pertinently says: “Any amendment to or revision of, this Constitution may be proposed by: (1) The Congress, upon the vote of three-fourths of all its members, (2) A constitutional convention.” Section 2 of the same article however is limited to amendments, thus, “Amendments to this Constitution may likewise be proposed by the people through initiative…” Verily, there are three (3) ways on how to propose amendments or revision to the constitution: (1) Congress sitting as constituent assembly (2) A Constitutional convention and (3) the people by virtue of initiative. Let us focus on the first mode being the purported basis of the iniquitous House Resolution No. 1109.

“A constituent assembly,” said constitutionalist Fr. Joaquin Bernas, “is nothing more than a body composed of men and women either elected or appointed officially empowered by the people through the Constitution to propose amendments to or revision of the Constitution.” The Constitution by virtue of Article XVII section 1 (cited earlier) automatically converts the bicameral Congress into a constitutional assembly the moment it seeks to propose amendments or revision. But let us be clear on this owing to the ambiguity of the constitutional provision on the amendatory process. As I have observed, most opinion writers (same with my fellow bloggers) seem to construe the “three-fourths vote” requirement as a necessary condition before Congress can act as a constituent assembly. To my mind, the “three-fourths” vote requirement cited above refers to the determination of Congress on whether to approve or reject the proposal for amendments or a revision. Necessarily they cannot do this unless they already sit as a constituent assembly by operation of Article XVII section 1 of the 1987 Constitution. This is what Fr. Bernas meant when he referred to the issue of converting Congress into a constitutional assembly as “superfluous talk.”

Going back as worded, the 1987 Constitution neither requires an enabling act in the form of legislation nor a resolution before Congress can act or sit as a constituent assembly. But there seems to be no problem if Congress in the exercise of its rule-making powers decides to pass a resolution in the form of an administrative measure “setting down how each house proposes to proceed in the exercise of the constituent power.” The function of a constituent assembly, however, is not to be confused with the role of the electorate in the process of amendments and revision.

A constituent assembly merely proposes or formulates amendments or revision; it does not amend or revise the Constitution. In essence, the proposal made by the constituent assembly partakes to the nature of a “recommendation” subject to the approval or ratification by the sovereign people through a plebiscite. It should be noted that the 1987 Constitution provides for a bicameral legislature composed of two houses, the House of Representatives and the Senate. The records of the 1986 Constitutional Commission show that it was an uphill battle for those who supported a bicameral legislature over a unicameral system. The debates between the opposing sides were both intense and sometimes even comical, but nonetheless extensive with their respective arguments. At the end of the day, the votes were 22-23 in favor of a bicameral system.

The rationale for a bicameral body is obvious as the sun; simply put,two heads are better than one. Legislative decisions, whether Congress acting as a constituent assembly or performing a legislative function, require far-reaching deliberations and debate, thus the need for collective wisdom. This is logical because the Senate tends to view transcendental issues from the national perspective while the House of Representatives favor the parochial approach in resolving problems confronting the nation. In other words, there is the built-in system of checks and balances which is the essence of a bicameral system. Clearly then, the framers of the 1987 Constitution deliberately manifest their intention to establish a legislative body with a bicameral structure and obviously, the people overwhelmingly approved their handiwork as the supreme law of the land.

Bicameralism necessarily entails the idea of dual decision. As such, the same applies even when Congress proposes amendments or revision in the exercise of its constituent powers. Since Congress is composed of two Houses, how then can it propose amendments or revision to the Constitution when it sits as a constituent assembly? Basically, when Congress enacts ordinary legislation both Houses have separate deliberations and voting separately. But proposing amendments or revision is not a legislative function as enshrined in Article VI, what we have here is a constituent function pursuant to Article XVII. To reiterate, the Constitution simply says, ““Any amendment to or revision of, this Constitution may be proposed by: (1) The Congress, upon the vote of three-fourths of all its members…” But again, how can we determine the “three-fourths vote” of all its members when what we have is a bicameral Congress, each with its respective number of members. Can both Houses propose amendments to the Constitution in a joint session? If so, how about the manner of voting? Must they vote separately or not?

It appears however that majority of the Congressmen who sponsored House Resolution No.1109 have a distorted interpretation of Article XVII section 1 of the Constitution. The gist of the resolution clearly excludes the participation of the Senate in the process of proposing amendments. For obvious reason, HR 1109 openly enunciates the “joint voting” formula as the correct interpretation in determining the three-fourths vote requirement. Under this view, the phrase, “three-fourths of all its members” should mean three-fourths of all the members of the House of Representatives and the Senate taken together as one legislative body. To illustrate, let us suppose that at present we have a total of 293 members, 269 of them belong to the House while 24 to the Senate. Following the joint voting formula under HR 1109, three fourths of 293 would be 219. Thus, even assuming all the 24 Senators voted against the proposed amendments still it would not be enough to overturn the decision of the majority in the House. This of course is an outrageous interpretation of the 1987 Constitution. “Under this view,” wrote Justice Vicente Mendoza, “it does not matter if the three-fourths vote casts in favour of a proposed amendment or revision come from the House nor if all the members of the Senate object.” The joint-voting formula not only distorts the text of the Constitution, but it also destroys the very intent of the framers when it opted to go for a bicameral legislature.

To support this analogy, a perusal of the 1987 Constitution provides for the instances when the two Houses must convene together in joint session but vote separately: (1) When Congress declares the existence of war, (2) When it confirms the president’s nomination of a member of the Senate or of the House to be Vice President in the event of a vacancy in that office, and (3) the canvassing of votes for president and vice-president. Note that in these three instances, like proposing amendments or revision under Article XVII, Congress is performing a non-legislative function.

Corollary, I therefore subscribe to the view of Fr. Bernas that to be consistent with the bicameral structure of Congress, the “three-fourths vote of all its members” must be interpreted to mean three-fourths of all members of each house voting separately.

As to the question whether the House and the Senate should convene jointly or in separate sessions, I think it is best that both Houses cross swords with each other─ face to face. Take note that what is at stake here is not ordinary legislation but amendments to the Constitution. Albeit the Constitution does not command a joint session in the manner of proposing amendments, neither is there a prohibition for them to do otherwise. In any case Congress certainly has the discretionary power to set its own internal rules as an independent branch of the government.

The notorious House Resolution 1109 is nothing more but an utter display of hubris by the majority of the members of the House. While admittedly the constitutional provision on the amendatory process is badly worded, the same should not be utilized as an avenue for vain political motives. I have always maintained (see: Charter Change Revisited article) that if we venture to change our Constitution it has to be done under a less politicized environment. But be that as it may; if the House so decides to push through with the amendatory process by deliberately excluding the Senate, then this will be the proper time to bring the case to the Supreme Court for adjudication.

PBA091qr8p20