In 1971 and 2006, new Charters designed to keep embattled presidents in power

The PCIJ has just finished a three-part series that looks at the uncanny similarities in the manner in which Ferdinand Marcos and Gloria Macapagal-Arroyo have attempted to change the constitutions prevailing during their incumbency. The series was written by Raissa Espinosa-Robles who, in 1984, wrote a 14-part series on the Marcos constitution for Business Day. Raissa dug up her files again and found transcripts, interviews and speeches that attest to how similar the current situation is to 1971-73, when Marcos managed to ram through a new constitution.

This series compares historical material and transcripts of recent discussions in the Consultative Commission (ConCom) and found the following similarities:

Both the 1973 charter and the one currently being proposed were seen primarily as attempts to save an embattled president and keep that president in power by changing the form of government.

In both, there were sweeteners. In 1972, Marcos offered ConCon delegates who approved the constitution membership in a new National Assembly. In 2006, local officials and congressmen were offered a “no-election” scenario in exchange for their support for the charter.

Both the 1973 charter and the proposed one give the president extraordinary powers not in the preceding constitutions. These extraordinary powers are to be exercised during a “transition period” where the incumbent president assumes the combined powers of president and prime minister.

Both the 1971 ConCon and 2006 ConCom proceedings were marked by last-minute provisions and secret dealmaking with Malacañang. Those who are pushing for charter change now are also the same ones who cooperated with Marcos more than 30 years ago: Jose de Venecia, Jose Abueva, Gilberto Duavit, Alfredo Abueg, Pedro Romualdo and Gerardo Espina Sr.

The 1973 constitution was ratified by hurriedly convened and questionable “citizens’ assemblies,” similar to the ones recently called to certify the people’s initiative for charter change.

Arroyo’s late father, former President Diosdado Macapagal, headed the 1971 Constitutional Convention that produced the constitution that legitimized the Marcos dictatorship. Macapagal said that Marcos grabbed control of the convention by obtaining “the loyal support of certain delegates through the inducement of money, patronage, and other favors in enough number to be able to decisively influence the Convention.”

THE CONSTITUTIONAL convention that met in 1971 was formed because of a growing public perception that the country was in crisis and needed drastic change. There was a clamor for a new constitution, particularly in the light of suspicions that Marcos had cheated and spent heavily in the 1969 elections in order to win a second term.

If businessmen, politicians and student activists all wanted a new charter then, it was because they hoped to curtail the powers of the president and to reform what they thought was a rotten political system. The political opposition, in particular, wanted to block Marcos’s attempts to perpetuate himself in power by shifting to a parliamentary form of government.

But Marcos outfoxed his opponents. He managed to subvert the convention into producing a constitution that did precisely the opposite: give him enormous powers and extend his term indefinitely.

The present moves toward charter change echo many of the circumstances that took place more than 30 years ago. Last year, in an effort to save a presidency reeling from allegations of election fraud, President Gloria Macapagal-Arroyo formed a Consultative Commission (ConCom) to “review” the 1987 constitution.

Members of the commission would find out during their trips across the country that many people wanted a new charter mainly to get rid of the present administration. Yet the draft constitution the ConCom has produced is, like the 1973 charter, designed to bring about the opposite result: perpetuate the present political order in power.

Lessons of history
“We had Marcos after 1971 for the next 14 years,” says Jose Luis ‘Chito’ Gascon, who was a member of the 1986 Constitutional Commission and who resigned from his post as education undersecretary at the height of the presidential crisis last year. “We will probably have GMA (for longer than her term) unless we learn from history.”

Arroyo, however, may have studied that chapter in the nation’s history too well. Just like Marcos’s ConCon, her ConCom would:

  • Break up into subcommittees and form a “special committee” that would insert into the draft new powers for the incumbent president;
  • Present these new powers at the very last minute to the rest of the body;
  • Suspend the rules and tell everyone to speed up approval;
  • Refuse to accept amendments; and
  • Make last-minute unauthorized insertions.

Ironically, the man many say could have dealt a serious blow to Marcos’s martial rule was no other than President Arroyo’s late father, former President Diosdado Macapagal, then head of the ConCon. But instead of adjourning the convention and depriving Marcos of a constitution that would legitimize his dictatorship, Macapagal decided to see the ConCon through.

Macapagal died in 1997, but in 1984 this reporter interviewed him extensively about the ConCon. He described himself as essentially helpless, “a figurehead with very limited authority.” He also said, “It was not I, but the convention, which decided to continue with the sessions.”

“If it were in my hands,” Macapagal said, “I would have wanted to declare an indefinite recess but it could not be done under the rules of the convention against the will of the majority, especially since at that time Malacañang had already an unchallenged dominance over the Convention.”

Grabbing control
Macapagal said that Marcos grabbed control of the convention by obtaining “the loyal support of certain delegates through the inducement of money, patronage, and other favors in enough number to be able to decisively influence the Convention.”

He probably never foresaw that one of his daughters would later be suspected of employing similar tactics with another body tasked with charter change.

Initially, Marcos had influenced the ConCon to choose another former Philippine president, Carlos Garcia, as its head. But Garcia suddenly died three days after being elected. That led to Macapagal’s being voted ConCon president — apparently through Marcos’s influence. Throughout the convention’s 17 months of existence, Macapagal could never shake the image that he had been “selected” instead of “elected.”

His sensitivity about this was apparent to others. Delegate Antonio de Guzman later recalled that Macapagal, as convention chief, was “very careful not to alienate delegates who might otherwise move for the vacancy of his position.”

Still, when the crunch came, Macapagal had an opportunity to play the hero. On Sept. 24, 1972, just a few days after Marcos declared martial law, Macapagal met with 20 delegates, among them the late Ramon Diaz, to decide what to do. Years after, Diaz would tell this reporter that the delegates decided to adjourn the convention.

Diaz recalled that Macapagal seemed reluctant to suspend the convention. “Macapagal said we would be able to withstand all pressures even during martial law,” Diaz said in a 1984 interview.

Foiled game plan
Nevertheless, the delegates agreed to recess the convention and worked out a game plan. At the start of the next day’s session, Macapagal, as convention president, would call on Diaz, the steering council chair, to set the day’s agenda. Diaz would quickly file a motion to recess, which Macapagal would immediately approve by banging the gavel before anyone else could intervene.

That never happened. The next day, Macapagal didn’t call Diaz, instead opening the floor to a debate on whether or not to recess. One of the delegates, Teofisto Guingona Jr., said Macapagal entertained so many objections “from Malacañang boys” that in the end, the motion to adjourn was voted down.

Before martial law was imposed, Macapagal had proclaimed, “I am resolved to exhaust all my remaining lights and energies to give meaning and reality to my oath as delegate and convention president to uphold the independence of the convention.” Unfortunately, despite his assurances that the ConCon could continue functioning independently even under martial law, subsequent events showed who the real boss was.

Marcos was soon promising the convention delegates automatic membership in the Interim National Assembly if they approved the transitory provisions. He made the same promise to all congressmen and senators who expressed their desire, in writing, to serve in the assembly. One of those congressmen — a man from the opposition Liberal Party named Jose de Venecia Jr. — immediately signed a statement praising the “sweeping Marcos reforms, which coincided with the reformist goals of the opposition.”

(Now Speaker of the House, de Venecia is among the major proponents of charter change and has made no secret of his wish to have an interim parliament by July.)

Unprecedented speed
Working with unprecedented speed, the ConCon decided on Oct. 20, 1972 to suspend the rules requiring second and third readings and immediately put Marcos’s awesome powers to a vote: 264 said “yes,” while only 14 had the courage to vote “no” — among them, Marcelo Fernan, the late Supreme Court chief justice, Margarito Teves, now finance secretary, and Macapagal’s provincemate, Jose Suarez.

Several other ConCon delegates had been hauled to prison when martial law was declared and they refused to endorse the new charter; among them, businessman Jose Concepcion Jr., economist Alejandro Lichauco, Antonio Araneta, former vice president Teofisto Guingona Jr., and Sen. Aquilino Pimentel Jr.

Among the many who voted yes were former Supreme Court chief justice Hilario Davide Jr., Supreme Court associate justice Adolfo Azcuna, Senators Edgardo Angara and Richard Gordon, lawyer Romeo Capulong, the late senator Raul Roco and former senator Heherson Alvarez.

Floor leader Arturo Pacificador later recalled that the rules suspension was meant “to expedite proceedings” but Diaz said the actual effect was that, “nobody had a chance to restudy and reread the entire thing.”

In 1984, Macapagal told this reporter that these provisions were “known to have been prepared in Malacañang.” Yet he never opposed them during deliberations.

On Oct. 23, 1972, Macapagal steered the convention to suspend its rules for good and form a smaller body, the 166-man Special Committee, to draft a completely new charter. The next day, he convened the Special Committee and appointed political scientist Jose Abueva as its secretary. Macapagal would say later, “I was agreeable to the 166-man committee because in spite of my limited authority as president, I could have some say on the committee’s work.”

In one week, the Committee completed the entire draft of the constitution. Previously, it had taken the convention two weeks just to approve the preamble.

The special committee had divided itself into smaller committees, each of which produced a section of the overall constitution. The smaller committees were free to override and revise whatever had been discussed before. They then passed their output to a 17-man ad hoc panel, which stitched together an entire charter in the record time of four days.

Mysterious insertions
Recalling the process, ad hoc panel chair Antonio de Guzman said in a 1984 interview, “We were practically given a large latitude to exercise our own judgment with the understanding that all delegates would have a chance to present their own proposals.” But the truth was the ad hoc panel accepted only a few proposals and hustled the sections to the steering council, which approved them on Oct. 30.

The rest of the ConCon saw a copy of the draft charter only on Nov. 22, when they were also told they had only eight days to approve it. Some of the delegates noticed that the transitory provisions that they had earlier approved — and which gave Marcos great powers — had mysteriously expanded from six to 15 sections. Because the convention barely had time to deliberate the entire proposed constitution, many of the provisions “were not subjected to the slightest debate,” said delegate Suarez.

Many delegates later said that they were cited as authors of proposals that they were diametrically opposed to or had never made.

The prayer with which delegate Pacifico Ortiz, a Jesuit priest, opened the Nov. 25 deliberations was telling: “Dear Lord, at this juncture of our task, at this point of no return — too late to buck the headwinds towards the independence that we have lost, too soon to discern the deluge in the tailwinds that, against our choice, propel us towards an unknown undesired port — we do not know what to pray for, we simply do not know.”

Despite this concern, 273 out of 320 delegates voted to approve the Marcos constitution four days later. Perhaps the reason lay in a talk Marcos had with a few convention members in Malacañang. There, he promised he would convene the interim national assembly, where all of those who voted to support his constitution would become members. “Trust me,” Marcos reportedly assured them.

Records show that Macapagal did not vote. He would say in 1984 that he “merely certified to its approval by the majority” because he was “strongly against the transitory provisions.” But no records from 1972 show him voicing his opposition. There is, however, a photo of him and Marcos smiling together as he handed the president a signed copy of the charter produced by the ConCon.

Delegate Antonio Tupaz would later say that Macapagal was one of the “two men (who) were silently fashioning the intricate details of suspending the rules” at the ConCon. The other man was Gilberto Duavit. In 1984, Macapagal himself identified Duavit as one of Marcos’s leaders inside the convention.

Last year, Duavit was appointed by Macapagal’s daughter, President Arroyo, to her 55-member ConCom.

Committees at work
Just like the ConCon, Arroyo’s Consultative Commission had begun with few committees. ConCom member Vicente Paterno says that the body at first had only three committees to tackle form of government, federalism and the charter’s economic provisions. He joined the first two as member and asked to co-chair the third.

“Gradually, in order to satisfy the desire of people to be chairs and officers — a very Filipino trait I’m sorry to say — other subcommittees were formed,” he says. This included a special committee that Paterno says was “to put together all the transitory provisions.” This same committee “told the plenary commission” of the provisions giving President Arroyo extraordinary powers “only on the day before the commission was dissolved,” he says.

ConCom chairman Jose Abueva, who had acted as secretary in Marcos’s ConCon, says, “We did not know (the new amendments) until we saw it in the last day…but if you are a member of the committee you know what was happening.”

He says, though, that the amendments “evolved out of the debates and compromises.”

“But there were some givens,” says Abueva. “One given is that the President (Arroyo) was elected to a six-year term ending 2010.”

Yet he also says that some of the insertions in ConCom’s draft constitution were either “flukes” or “nalusutan (sneaked in).” Among the flukes was a proposal to let Arroyo appoint 30 new members to the interim Parliament.

“That was proposed I think by (Commissioner) Gerry Espina,” says Abueva. “In the rush of events that was approved along with the whole proposal.”

Abueva says an insertion that effectively restricts freedom of speech, press and assembly was “nalusutan.” He says he learned about the provision only after civil-rights advocates complained about it.

Intended changes?
But other changes could only have been intended, such as a drastic revision of the current preamble, the opening sentence in the constitution that states the nation’s aspirations for its people.

The preamble of the Arroyo administration’s proposed constitution no longer has these phrases and words, which are contained in that of the 1987 charter: “rule of law,” “to build a just and humane society,” “a regime of truth,” “freedom,” and “love.”

In a recent forum, University of the Philippines law professor Ibarra Gutierrez III wondered about their deletion. It was, however, not a matter of the ConCom taking them out. What Arroyo’s Consultative Commissioners actually did was to bodily lift the preamble of the 1973 Marcos Constitution. The only thing they did not retain was the phrase “Divine Providence” — they changed that to “Almighty God.”

(In 1984, when the Batasang Pambansa was debating Marcos’s succession, Raissa Espinosa-Robles wrote a 14-part series on the Marcos constitution for the now-defunct Business Day. She interviewed key players and obtained official records of the Con Con and delegates’ speeches. Diosdado Macapagal declined an interview, but typed out answers to questions from the author.)