Beginning the 1970s, the Philippines has endured Constitutional violations committed by no less than the government. To go around the 1935 Constitution’s ban on a third consecutive term, President Marcos campaigned for a constitutional convention to revise the same. With Martial Law in the background, the resulting 1973 Constitution was railroaded and invalidly ratified, partly because not all those who voted were qualified voters under the 1935 Constitution, per the Supreme Court. From then on, erosion of democracy in the Philippines has largely been facilitated by constitutional violations aimed at impairing the independence of institutions and aggrandizing the Executive. This has been the trend in the country in pursuing an authoritarian agenda.
We begin with Marcos. As a lawyer, he wanted a hint of legality on his promulgations, including the said ratification of the 1973 Constitution. The Court in fact noted that “there is no further judicial obstacle to the new Constitution being considered in force and effect.” Bermeo ascribes the same desire for legality as a potential indicator of democratic backsliding. Yet, despite its seeming legality, it remains a fact that the brutal regime which worked under the 1973 Constitution was partly a product of a constitutional violation.
When the people toppled the dictatorship in 1986, President Corazon Aquino formed a Constitutional Commission to draft what would be the 1987 Constitution. Save the 2001 EDSA revolution, the transfers of power in the 5th Republic have so far been peaceful. However, attacks on the independence of the institutions have persisted.
First of these are the repetitive blows against the judiciary. Despite the prohibition on appointments before the President leaves office, the Supreme Court ruled that then-President Arroyo may appoint the next Chief Justice. The ban on midnight appointments, as Justice Carpio-Morales notes, was intended by the constitutional framers to cover the Judiciary to prevent the President from perpetuating her/himself in power. Had Chief Justice Corona (born in 1948) served until the mandatory retirement age of 70, he would have been the Chief Justice throughout the term of Arroyo’s political opponent, President Benigno Aquino. Thus, once anew, a Constitutional violation was committed in order to aggrandize the Executive, extending its influence even way beyond its rightful term in office.
In 2018, CJ Sereno, who replaced CJ Corona, was ousted via a petition by the solicitor general and not by impeachment, which the Constitution provides. This came after she disagreed with several Executive decisions like the imposition of Martial Law in Mindanao. The supreme law was subverted by the government lawyer to remove a political opponent in the judiciary, precisely to strike out a horizontal check.
What is interesting in both narratives is that these Executive actions were cloaked with legality because the Supreme Court itself voted to approve both moves that effectively eroded judicial independence. This is because contemporary authoritarian regimes use judicial review in democratic settings to consolidate power. The judges who voted to oust CJ Sereno were then rewarded with the CJ post. All four Duterte-appointed CJs voted in favor of CJ Sereno’s ouster.
Another independent body, the Commission on Human Rights has been under attack. Having been extremely vocal against the administration’s War on Drugs, in 2017, the Duterte-controlled Lower House attempted to grant the Commission a 1000-peso budget for 2018. This would have effectively abolished the Commission, whose existence is mandated by the Constitution. Though it did not materialize, isn’t this act a warning to the Commission for its criticisms? Again, they want to disregard the Constitution to effectively remove checks on the Executive.
In these instances, the undermining of the Constitution and the constitutionally guaranteed independence of institutions also undermines the process of democratization. This is because the endurance of institutions through time is a signifier of a consolidated democracy. When one subverts institutions, one impedes democratic consolidation.
Furthermore, the Duterte administration is also bent on circumventing the Constitution to possess greater power. Three instances prove this. First, during and after the siege in Marawi, the Executive placed the entire Mindanao under martial law, even if the siege remains contained in Marawi. This is arguably unconstitutional because the entire Mindanao did not qualify for the constitutional conditions of martial law; only Marawi did. In the process, human rights, the upholding of which is essential to democracy, were violated.
Secondly, sitting Senator De Lima, a vocal Duterte critic, has been detained. In order to hasten her arrest in 2017, they filed extreme charges against the Senator, who is supposedly Constitutionally protected from arrest (while Congress is in session) if the charges are of lesser degree. Again, this circumvention of the Constitution and the attacks on De Lima’s right to criticize the government leads to democratic erosion. If people have no security against intimidation by a powerful state, no meaningful political competition is possible. Hence, empowering the Executive to successfully mute dissent leads to democratic backsliding because the Schumpeterian conception of democracy requires competition for elective offices.
Thirdly and more recently, the government enacted the Anti-Terrorism Law which defined terrorism so vaguely and allowed for prolonged warrantless arrest and detention for suspected terrorists. The law violates several rights enshrined in the Constitution such as the presumption of innocence. This indubitably allows the Executive to use state apparatus to conduct a crackdown on government critics. In an era where high-ranking officials can red-tag even non-communists and endanger their lives with impunity, the attacks on government critics will just have a more legal aura with the passage of the unconstitutional Anti-Terrorism Law.
Ergo, under the current administration, democracy backslides in the Philippines because of the attempts to ignore the Constitution. True, there is no military takeover and no martial law proclamation now. But incrementally, and with piece-by-piece violation of the Constitution, the quality of democracy in the Philippines is eroded by the attacks on independent institutions and by aggrandizing the Executive both done by circumventing the supreme law of the land.
Because of such moves, the Philippines cannot also completely fulfill Dahl’s characterization of democracy as “the quality of being completely or almost completely responsive to all its citizens”. The state cannot be completely responsive to its citizens if it suppresses horizontal and vertical dissensions, both of which are enshrined in the 1987 Constitution. How? When there is desecration of the right to speech of certain actors through intimidation and prosecution, the quality of public debate and public information erodes. With higher costs for speaking up, the opposition may be demoralized. Policies, then, cannot be deliberated and scrutinized well. How can the people decide on these policies with incomplete knowledge of these policies’ repercussions?
Because the 1987 Constitution protects wide-ranging rights and empowers independent democratic institutions, no doubt there have been attempts to revise it under Duterte’s rule. In fact, there is one attempt at the moment that is potentially unconstitutional – the House of Representatives is currently deliberating on constitutional amendments without convening both houses of Congress as a constituent assembly, pursuant to the Constitution. The future of this move remains uncertain.
Meanwhile, the civil society in the country is incessantly guarding democracy. The most recent glimmer of hope comes from a coalition of figures from different sides of the political spectrum to challenge administration candidates in 2020, a coalition primarily led by two retired Supreme Court Justices and one career diplomat. So, despite the bleakness of the current times, there is room for cautious optimism.
(Photo: “President Duterte visit-001-20161023-IM3P8499” by IlocosNorte is licensed under CC BY-NC-ND 2.0)
Thanks for this post on the Philippines Joshua! The way that you broke down how Duterte and past presidents were able to subvert the Constitution was very informative and very convincing. My only comment is that it doesn’t seem that unique or special that Philippine Presidents are trying to erode democracy by subverting the Constitution. Is there anything that makes the attacks on the constitution in the Philippines unique from democratic erosion in other countries? If they are distinct, do the actions from Duterte now warrant a different response from those who wish to preserve democracy in the Philippines than other countries?