Issue of December 3, 2017

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Constitutional crisis

The term “constitutional crisis” is familiarly being mentioned around lately in the Philippines. Senators Franklin Drilon and Francis Escudero used it to warn the House Justice Committee against issuing a subpoena to Chief Justice Maria Lourdes Sereno to appear before it under pain of being detained in case she refuses to obey. Solicitor General Jose Anselmo Cadiz also used it in his oral argument to suppress the petition filed by concerned citizens questioning the legality of the Oplan Tokhang and Oplan Double Barrel being implemented by the Philippine National Police in its war against illegal drugs. So did a group of anti-Duterte rallyists against the proposal to formulate a revolutionary government.

For politicians and legal analysts, it comes quite naturally for them to be discussing about constitutional crisis and invoking its effect on our society as if it is part of every Filipinos’ daily existence. Yet, the ordinary people who are going to be adversely affected by this kind of crisis in government do not really comprehend the concept. I myself am confused and I have to dig into my old notes to be reoriented.

According to my professor in Political Law at the University of the Cordilleras College of Law, “disagreement among the executive, legislative, and judicial departments of any government is a normal occurrence in a country that follows the democratic system.” When this happens, the constitution is called upon to resolve the impasse. “If,” he attested, “there is a breakdown in the ordinary procedures laid down in the constitution to resolve the disagreement, then a constitutional crisis results.”

While researching, I came across an article written by an American author (sorry, due to the need to beat the deadline, I overlooked to get her name) where she explains that there are several situations when a constitutional crisis may result. First is, if the constitution does not have a specific provision on how to resolve a particular situation. By the absence, the officers of the different branches in the government are left to freely interpret what could or should be done. An example is the grant of emergency powers to the President to resolve the traffic situation in Metro Manila. The 1987 Constitution is just about silent on what is meant by and the scope of an emergency power. It does not specify that it includes “traffic,” among other things. Should Congress grant it and should the president assume it by phasing out all vehicles 15 years old or over without the Supreme Court ratifying it, there might arise a crisis. Car owners who may be adversely affected will take to the streets to protest.

Second is, there are specific provisions pertaining to a situation but it is ineffective to resolve the controversy. A case in point is the election protest filed by Ferdinand Marcos Jr. against the proclamation of Leny Robredo as vice president of the republic. Let us suppose the recount is favorable to Marcos and still Robredo does not want to vacate her post. There will be a breakdown of the normal election process which will disenfranchise those who elected Marcos. There will be two vice presidents; one by proclamation and the other by election.

Third is, when a term used in the constitution is capable of multiple interpretations. Chief Justice Maria Lourdes Sereno is being required, by virtue of a subpoena, to appear before Congress to shed light on the impeachment case filed against her. She declines, because for her, the power of Congress to issue subpoena is only “in aid of legislation.” On the other hand, Rep. Reynaldo Umali is of the opinion that the power of Congress to issue subpoena under pain of contempt, extends beyond that. He insists that it is within Congress’s authority to summon anyone in its proceedings. Two interpretations for a single term which may trigger a misunderstanding between two honchos from the government. What if Justice Sereno is correct? What if Umali is wrong and have the Justice arrested and she refuses to submit. Naturally, there will be an unintended breakdown in inter-parliamentary courtesy.

And fourth is, there is a provision, it is apt, it is sufficient, it is clear, yet, another branch of the government refuses to abide by it. At the height of the Marawi siege by Maute militants, Duterte declared martial law. Several members of the opposition filed a petition with the Supreme Court questioning the constitutionality of its declaration and prayed for a temporary restraining order. The President made it clear that even if the Supreme Court issued the restraining order, he will not abide by it. Thank God the High Tribunal said Duterte’s act was constituted. Otherwise, it would have created a constitutional crisis.

So what if there is a constitutional crisis? How will it affect the people? How will it affect the country? The essence of a nation is its government. It must function as a well-oiled machine in order for it to deliver the necessary and basic service to its constituents. If there is a breakdown in the structure of the government and a strong reaction is shown by the people, it will collapse. There will no government to speak of, like a headless chicken running around, going nowhere.

It is, therefore, inviolate that a constitutional crisis be avoided at all cost. This can only be achieved if our public officials obey what the constitution and our laws mandate. As the legal saying goes: “Ours is a nation of laws and none of men.”

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