Reminding Duterte of constitutional basics

Many were surprised and taken aback by the President’s threat to his critics that he would suspend the writ of habeas corpus, jail all of them and declare a revolutionary government. But then again, after three years into this administration, who would be surprised by the president’s penchant for theatrics not to mention profanities? Yet as a lawyer from one of the premier law schools in the country, one could only expect that the president would be aware of the legal repercussions of his every pronouncement.

The 1987 Constitution is crystal clear. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. Suspension of the writ shall be for a period not exceeding sixty days, Within forty-eight hours from the suspension of the privilege of the writ of habeas corpus (or martial law), he is required to submit a report in person or in writing to the Congress which may, by a vote of at least a majority of all its Members in regular or special session, revoke such proclamation or suspension, which revocation shall not be set aside by the President. Congress may extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

In the few instances that the chief executive suspended the privilege it was during the time of rebellion and necessity of public safety. In 1950, President Elpidio Quirino suspended the privilege of the writ of habeas corpus due to impending communist threat from Hukbong Bayan Laban sa mga Hapon (Hukbalahap). The late dictator Ferdinand Marcos suspended the privilege in 1971, after the bomb attack during the rally of Liberal Party at Plaza Miranda in Manila. Former President Gloria Macapagal-Arroyo suspended the writ in 2009, in some areas of Maguindanao province following the Maguindanao massacre. And recently, martial law was declared in Mindanao and the writ suspended by Duterte due to armed attacks, violent acts, and perpetrated by the Abu Sayyaf and Maute terrorist groups.

Nowhere has there been an instance when the writ was suspended to suppress the administration critics. Of course, criticizing an administration is never a ground to suspend the writ much less declaring martial law.

A Constitution, founded on the principles of democracy and civil liberty cannot sanction the suppression of basic freedoms by the State. A healthy democracy can only thrive in an atmosphere of freedom, including the freedom to engage in healthy and constructive criticism of the government. The exchange of ideas and even criticizing the leadership is an essential component of democracy. As one pundit said: “Democracy must be built through open societies that share information. When there is information, there is enlightenment. When there is debate, there are solutions. When there is no sharing of power, no rule of law, no accountability, there is abuse, corruption, subjugation and indignation.”

Aside from the suspension of the writ the president also threatened to declare a revolutionary government. Early on in his administration, in 2016 I think, Duterte also threatened the left and yellows with a revolutionary government. And again, most recently Duterte, outraged by words of caution on his order to review all government contracts, again threatened to suspend the privilege of the writ of habeas corpus and arrest “all” his critics. Duterte also warned he would declare a “revolutionary war” if pushed to a corner.

I can remember only two instances in our history when a revolutionary government was set up. One was declared by Aguinaldo in 1898 and by Corazon Aquino following the ouster of Marcos in the EDSA People Power Revolution. In order to justify a revolutionary government, there must be a revolution just like in 1898 during the war of independence and 1986 people power revolution. For Duterte to threaten the opposition with a revolutionary government is utterly unwarranted, illegal and extra-constitutional, if not laughable. Any upheaval brought about by lawlessness, rebellion or invasion can be remedied by adopting the prescriptions within the constitutional framework.

Pilo Hilbay and Romy Macalintal hit it right in the head when they say that if Duterte declares a revolutionary government, he is in effect resigning and chooses to become a rebel thereby operate outside the law and by operation of the Constitution, VP Robredo takes over the reins of government which makes it her duty to quell the rebellion and stump out the rebels. Robredo said declaring a revolutionary government (RevGov) runs against Duterte’s duties as President and his oath to protect and uphold the Constitution.

Our leaders cannot be onion skinned and resort to intimidation and threats at the drop of the hat. In the case of President Duterte, what makes it more dangerous is that he actually means it. He cannot in fact take criticism and will in fact have his critics arrested if the opportunities arise. Take the case of Senator Leila De Lima, Maria Ressa, and Antonio Trillanes. It is shameful that the Department of Justice and the judiciary have played along and allowed this weaponization of the law.

The President is clearly reacting to the narco list videos and the Philippine Center for Investigative Journalism (PCIJ) report on the Dutertes’ Statements of Assets, Liabilities and Net Worth. (SALN). On the latter, he argues that it is not PCIJ’s business to inquire about their wealth. That of course is not correct. It is the business of all citizens, and particularly media, to ask if their president and other government officials are corrupt or have abused their power. After all, Section 1 of Article 11 of the 1987 Constitution proclaims: “Public Office is a public trust.”

So there: all the President and his men need to do is to go back to the basics of the constitution. I will humbly agree that the President is a brighter lawyer than me; on the constitutional basics I do claim some knowledge as a teacher of the subject in quite a number of schools. It does not take rocket science to know what is constitutional and unconstitutional. And clearly the President’s latest statements are the latter; hence, this reminder from one Mindanawon lawyer to another.


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