PEOPLE POWER IN A REGIME OFCoNSTITUTIONALISM AND THE RULE OF LAW

EDSA II, the movement which ousted President Joseph Ejercito Estradafrom office, derived its name from its supposed similarities with the first bloodlessrevolution which dethroned President Ferdinand Marcos from his dictatorial regimein 1986. EDSA II, however, has attracted much criticism from both Filipino andforeign commentators. People power, as a mode of removal of the Chief Executive,was said to have adversely affected rule of law and undermined constitutionalism inthe countty. Ms. Mani Thess Q. Pefia rebuts these criticisms by establishing thatpeople power is a constitutional right which furthers, rather than undermines, theconstitutionalist framework of Philippine society and the rule of law.

Part I of Ms. Pena's paper demonstrates that the Philippines is under aconstitutionalist regime and the rule of law. Part II focu~es on the relationshipbetween these two concepts. Part III analyzes the concept of people power in thecontext of the three manifestations of People Power in the countty's history. PartIV tackles the ostensible incongruity between people power on the one hand, andconstitutionalism and the rule of law on the other. Part V concludes the paper bytying up these concepts based on two arguments: (1) that people power is a rightimplicit in a constitutional framework, and (2) that people power furthers the idealsof constitutionalism and the rule of law.

PEOPLE POWER IN A REGIME OFCONSTITUTIONALISM AND THE RULE OF LAw *

When the Filipinos staged a bloodless people power revolution in 1986,dubbed as EDSA I, to topple constitutional authoritarianism,! people from all overthe world hailed the country as a bastion of democracy and freedom. Fifteen yearsafter, the Filipinos once more gathered in the revered EDSA shrine, this time to ousta corrupt2 president. However, unlike its predecessor, EDSA II drew criticism fromcertain sectors of society3 and even from foreign commentators.4 A few monthslater, while most Filipinos were toying with the idea of having an unprecedentedEDSA III, the forces vanquished by EDSA II, that is, the supporters of formerPresident Joseph Estrada, conquered EDSA to demonstrate their own version ofpeople power .

• This paper was submitted to the Philippine Law Joumal2001-2002 Editorial Examinations .•• 0Jairpersm, Philippine Law Joumal2001-2002. Third Year,ll.B., University of the Philippines College

of Law. BA Political Science, University of the Philippines-Manila.I This refers to the philosophy of government of former President Marcos after the imposition of martial

law in 1972. See Peter Payoyo, The RJJe if L4w and the JM:me.Making Poar:r if the Prr:sident Sane R4/eaims on theCrisis if Caistitutialdl AutJxmtariani.m in the Philippines, 59 Plm.. LJ. 152 (1984).

2 This is merely an opinion of the author, not a conclusion of law.J While a number of the population gathered in EDSA, a considerable number of supporters of the

ousted President Estrada convened in Mendiola to oppose the public clamor for the latter to step down fromthe presidency. Majority of these Estrada supporters were believed to have come from the marginalized sectorsof the society.

4 Anthony spaeth's essay in Time, for example, concluded that "people power has become an acceptableterm for a troubling phenomenon: one that used to be known as mob rule.· See Rigoberto Tiglao, The law isvh# the SC .rays it is, Plm.. DAn.Y INQUIRER,Jan. 28, 2001, at A7.

Amando Doronilla summed up the main points of criticism by the commentators and reporters of theliberal Westem media of People Power IT as follows: "The ouster of President Joseph EstraeJa was 'a defeat fordue process' and has 'left the notion of constitutional democracy in tatters.' Filipinos had the mechanisms-i.e.,impeaclrment--to legally change their head of state, but they chose popular uprising, which method portends a'troubling future for democracy.' Edsa IT was a 'rich people's power' that ejected an elected President in orderto return the old, wealthy political and business elite to power." Amando Doronilla, Edsa II uorries WestemmrJia,PHiL. DAn.Y INQUIRER,Jan. 31, 2001, atA9.

On a superficial level, the Philippines made a name for herself in history asa consequence of three people powers in a span of 15 years. However, therepercussions in the country's legal system are much deeper. The demonstration ofthe will of the people through people power was a departure from the regime ofconstitutionalism and law that characterizes the Philippines. In the words of formerSen. Arturo Tolentino:

The rule of law has been considered, in a government like ours, as equiwknt tothe supremacy of the Constitution. It is general1y recognized that theConstitution sets the limits on the powers of government; it prevents arbitraryrule and despotism; it insures government by law, instead of government bywill, which is tyranny based on naked force.S [Italics supplied.]

The conundrum that people power has created in the legal system arisesfrom the presumption that the will of the people must be expressed in themechanisms provided under the law and the constitution. Arrt extra-constitutionalmanifestation of this will, at least those not sanctioned by the constitution, isfrowned upon by reason of the dangers they pose to the stability of theconstitutional system. One such apparently extra-constitutional expression of VCK

populi is people power.

After EDSA I, it was expected that the Philippines would be in disarray.However, although stability was initially elusive, the country rewted to theconstitutional regime that existed prior to the declaration of martial law, culminatingin the ratification of the present 1987 Constitution on February 7, 1987.6 EDSA IT,under different circumstances, was adjudged by the Supreme Court7 as a mere caseof presidential succession provided under the 1987 Constitution, not a revolution asin EDSA 1. EDSA ill, on the other hand, was suppressed by the government afterPresident Gloria Macapagal-Arroyo declared a state of rebellion and commandeeredthe armed forces.

Indeed, if people power jeopardizes the constitutional regime and the ruleof law, why then has there been not only one, but three incidents of people power inPhilippine history? More succinctly,why is it that people power failed to destroy theconstitutional fabric of the society?

5 Arturo Tolentino, 7beRJJeiflAwtmdourCmstitHtim, 36 U.S.T. L REv. 41 (1985).6 TEODORO AGONCllLO, HIsTORY OF 1HE FILIPINO PEOPLE 586 (8th ed., 1990).7 Estrada v. Desierto, G.R. Nos. 146710-15, 2 March 2001; Estrada v. Macapagal.Anyoyo, G.R. No.

146738,2 March 2001.

TIlls paper seeks to address these questions in order to clarify the status ofpeople power in the Philippines. As this author wi» attempt to show, the variance ofthe concept of people power vis-a-vis the concepts of constitutionalism and the ruleof law is merely apparent. It is entirely possible to reconcile these notions, as may beproven by examining the country's political history. As a matter of fact, thePhilippines has been able to preserve its traditions of constitutionalism and the ruleof law despite its turbulent history.

Part I of the paper will demonstrate that the Philippines is under aconstitutionalist regime and the rule of law. The relationship between theseconcepts will be expounded in Part II. Part III will analyze the concept of peoplepower, in the context of the three phenomenal and historical events. Part IV willdwell on the ostensible incongruity between people power, on the one hand, andconstitutionalism and the rule of law, on the other hand Finally, in Part V, thispaper will attempt to tie up these concepts based on two arguments: (1) that peoplepower is a right implicit in a constitutional framework, and (2) that people powerfurthers the ideals of constitutionalism and the rule of law.

Constitutionalism fIrst developed in the West, when British thinkers such asSir Edward Coke (1552-1634), James Harrington (1611-1677), Richard Hooker(1155?-1600)and John Locke (1632-1704)floated the idea of restricting the authorityof the government. 8

Coke believed that "[n]either the King nor the Parliament was superior tothe law."9 He postulated that the law should control the acts of the Parliament andinvalidate them if proper.

Harrington, for his part, suggested that constitutional devices be put inplace to prevent absolute government. These devices included "a writtenconstitution, the secret ballot, rotation in public offIce, and ... an agrarian law to limitthe amount of landed wealth a subject might possess."lO He likewise argued that asystem of checks and balances is necessary to prevent a single party frommonopolizing power.

8 1 MICHAELCURns, THEGREATPoUTICAL THEORIES 357-360 (1981).9Id. at 358.10Id.

Hooker, on the other hand, invoked the theory of the social contract tobolster his claim that the "ruler must act in the public interest, and observe law."l1According to him, "[t]he king's power was based on and limited by law, and theauthority of the 'whole entire body' of the community."12

One of the more popular liberals, Locke, proposed that the power of themajority should be restrained "to prevent violation of laws of nature, property rights,the inalienable rights of men, or anything in the fundamental compact."13 In TheSecond Treatise of Civil Government, Locke identified the legislative power as thesupreme power in the commonwealth, but restricted its authority such that:

It is not, nor can possibly be, absolutely arbitrary over the lives and fortunes ofthe people ...

[It] cannot assume to itself a power to rule by extemporary, arbitrary decrees,but is bound to dispense justice and to decide the rights of the subject bypromulgated, standing laws, and known authorized judges ...

[It] cannot transfer the power of making laws to any other hands; for it being adelegated power from the people, they who have it cannot pass it over toothers ... 14

Constitutionalism, therefore, was initially conceived to set limitations on theauthority and acts of the government.

In its modern sense, constitutionalism continues to be a theory of limitedgovernment, a characteristic common among the various definitions ascribed to it by

. contemporary writers.

According to McIlwain, the term "constitutional" bears a negativeconnotation. It implies a restriction, as in the case of a "constitutional" monarchy,which is usually perceived as a "limited" monarchy.IS "The characteristic thatdistinguishes this kind of monarchy from others for us is a negative, not a positivecharacteristic. We think first of all of what the monarchy may not do, not of what hemqy dO."I6

11 !d.12 fd. at 359." fd. at 360." fd. at 382-3.15 CHJ\RLES HmVAJU) MCILW.\IN, CONSTITUTIONALISM AND ruE CHANGING WORLD: COLLECTED

PAPERS 244 (1939).16 fd.

%at the government may not do, McIlwain posits, depends on the lawdefining it. The law may be written or unwritten, ''but in every case it is a law thatputs bounds to arbitrary will."17

Giovanni Sartori enumerated the following fundamental attributes of liberalconstitutionalism:

(1) There is a higher law, either written or unwritten, calledconstitution;

(2) There is judicial review;(3) There is an independent judiciary comprised of independent

judges dedicated to legal reasoning;(4) Possibly, there is due process of law; and(5) There is a binding procedure establishing the method of law-

making which remains an effective brake on the bare-willconception of law.1s

[A] system of political arrangements in which there is a supreme law (generallycalled 'constitution'), in which all (particularly the entire system of government)is governed by the supreme law, in which only the people's will (as definedthrough some pre-specified institutional procedure, usually through a super-majority voting mechanism) can supersede and change the supreme law, inwhich changes can only be made infrequendy due to the difficulty of garneringthe requisite popular support, and in which there are separation of power,checks and balances and an independent judiciary dedicated to legal reasoningto safeguard the supremacy of the constitution.19

In simpler terms, constitutionalism is "a determinate, stable legal orderwhich prevents the arbitrary exercise of political power and subjects both thegoverned and the governors to 'one law for all men."'20

G.K. Roberts, in A Didionary rif Political Ana!Jsis, analyzed constitutionalismfrom two perspectives: as a practice and as the positive valuation of that practice.21

17 Id.18 Bo Li, What if ConJtitutionaIiJm?, 1 PERSPECTIVES, at http://www.oycf.org/Perspectives/

6_063000/what _is_constitutionalism.htm (June 30, 2000) quoting GIOVANNI SARTORI, THE THEORY OFDEMOCRACYREVISITED309 (1987).

19 Id.W Irene Cortes, CoftJtitutionali.fm in the PhilippineJ-A View from Academia, 59 PHIL. LJ. 338 (1984) (quoting

J. DUNNER, DICTIONARYOF POLITICALSCIENCE120 (1964)).• 21 Id. at 11.1.

As a practice, constitutionalism "is the ordering of political processes andinstitutions on the basis of a constitution, which lays down the pattem of formalpolitical institutions and embodies the basic political norms of a society."22 The roleof the constitution is not merely to regulate relations of the branches and organs ofgovernment with one another but also to limit the discretionary powers of thegovernment.23 To fulfill these tasks, the constitution itself should providemechanisms for arbitration and enforcement.

As a term of valuation, constitutionalism "refers to the ideas of those whowish to preserve or introduce the political supremacy of a constitution within aparticular state, to act as protector of the citizen from arbitrary government and as astatement of political relationships, especially where these do not exist already insatisfactory form."24

It should be noted, however, that constitutionalism is not synonymous withnor identical to constitution, which is basically "[a] charter of government derivingits whole authority from the govemed."25 Nevertheless, a constitution, written orunwritten, is deemed an essential element of constitutionalism.

In ftne, the concept of constitutionalism has not changed over time. AsMcIlwain observed:

[I]n all its successive phases, constitutionalism has one essential quality: It ISalegal limitation on government; it is the antithesis of arbitrary rule; its oppositeis despotic government, the government of will instead of law. In modern timesthe growth of political responsibility has been added t~ this through the winningof the initiative in the discretionary matters of national policy by the people'srepresentatives, and of that more anon; but die most ancient, the mostpersistent, and the most lasting of the essentials of true constitutionalism stillremains what it has been almost from the beginning, the limitation ofgovernment by law. "Constitutional limitations," if not the most important partof our constitutionalism, are beyond doubt the most ancient.26

22 Id23Id24Id25 Li, supra note 18 quoting BLACK'S LAW DICTIONARY.26 CHARLES HOWARD McILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN 21-22 (1947). ALro

amilable at http://www.constitution.org/ crntl mcilw I mcilw. txt.

That constitutionalism has deep roots in the history of the Philippines isbest evidenced by the various constitutions adopted by the Filipinos since the timeof Spanish colonization.

The earliest constitution drafted was the provisional constitution of theBiyak-na-Bato Republic, "prepared by Felix Ferrer and Isabelo Artacho, who copied,almost word for word, the Cuban constitution of Jimaguayu."27 Signed onNovember 1, 1897, the Biyak-na-Bato constitution established a republicangovernment, under the leadership of a Supreme Council.28

When the truce of Biyak-na-Bato failed, the revolutionaries, led by Gen.Francisco Makabulos of Tarlac, established the Central Executive Committee, whichwas governed by the constitution of Makabulos.29

After the proclamation of independence in Kawit, Cavite on June 12, 1898,a committee was created to draft a constitution, which would later be called theMalolos Constitution. Felipe Calderon, while writing the draft, drew inspirationfrom the constitutions of Mexico, Belgium, Guatemala, Costa Rica, Brazil andFrance.3DAccording to Agoncillo, "[t]he Malolos Constitution is the fIrst importantFilipino document ever produced by the people's representatives."31 True enough, itembodied the fundamentals of constitutionalism, by providing for a governmentwhich was "popular, representative and responsible" and "with three distinctbranches. "32

During the Commonwealth period, another Constitution was drafted andoverwhelmingly ratifIed by the people: the 1935 Constitution. It was patterned afterthe American charter in terms of structure and formal appearance, except that itprovided for a unicameral legislature and a unitary system of government.33 Moreimportandy, the 1935 Constitution incorporated the American political concepts ofdemocracy and government. 34

Under martial law, Marcos maintained constitutionalism, albeit as aninstrument to perpetuate himself in power, by submitting to the people, through the

27 AGONCILW, supra note 6, at 183.28 Id.29 Id. at 185.'" Id. at 206.31 Id. at 207.'2 Id33 Id at 351.,. Id

citizens assemblies, a proposed draft of a new constitution. Thereafter, he signedProclamation No. 1102, announcing the ratification by the Filipino people of the1973 Constitution.35 The validity of the "ratification" of the new Constitution wasupheld by the Supreme Court in Javellana v. Executive Secretary.J6

The tenure of Marcos, however, was terminated by the people powerrevolution in 1986. Then President Corazon Aquino established a revolutionarygovernment by virtue of a Freedom Constitution.37 This constitution wassubsequently replaced by the 1987 Constitution, ratified on February 7, 1987, whichremains as the fundamental law of the land until today.

While the concept of constitutionalism is relatively new, the concept of therule of law owes its origin from the Greek philosophers, Aristotle in particular. InPolitics, Aristotle contrasted the rule of law and the rule of men. Although headmitted that man-made law can never attain perfect justice, he nevertheless stressedthat '''the rule of law is preferable to that of any individual', and that magistratesshould regulate only matters on which the law is silent. Whereas government basedon law cannot be perfectly just, it is at least the lesser evil, when contrasted with thearbitrariness and passion inherent in government based on the rule of men."38

However, while the notion of the rule of law originated from the Greeks,the Western idea of the rule of law, as people now know it, is essentially Roman.This is so because one of the key aspects of the rule of law, i.e., limitation, is lackingin ancient Greek democracy. "[T]here were no limits to the (democratic)governments of ancient Greece, and the popular will, be it short-term pas~ion orlong-term rationality, would always become law if the demos so wished."39

The perception on what was the rule of law differed as time progressed.For instance, during the medieval era, when the belief on the divine right of kingsprevailed, the rule of law was formulated thus: "[T]he king ought not to be subjectto man, but subject to God and the law, because the law makes him king."40

35 !d. at 575.36 G.R. No. L-36142, 50 SCRA 30 (1973).37 AGONCILLO, supra note 6, at 585.38 WILUAM EBENSTEIN, GREAT POLITICALTHINKERS: PLATOTO mE PRESENT 83 (6th ed., 2000).39 Bo Li, What is the &lie r;f Law?, 1 PERSPECTIVES, at http://www.oycf.org/Perspectives/

5_043000/what _is_rule_oUaw.htm (April 30, 2000).40 Peter Payoyo, supra note 1, at 157 quoting PI-llLUPS, THE CONSTITUTIONALLAW OF GREAT BRITAIN

AND TIlE COMMONWEALTII27 (1952).

Thereafter, the rule of law was conceived as the supremacy of the common law,"subject to such changes as king or parliament might make from time to time."41

The Age of Enlightenment brought about a change in the understanding ofthe rule of law. As a case in point, John Adams' writings were instrumental intransforming the rule of law "into a social conviction about the virtues of aconstitution that acknowledged separation of powers."42

As it is currently formulated, the rule of law is based on principles placing"restrictions on how government is permitted to operate and how political powermay be exercised."43

One theory suggests that the rule of law operates on principles whichinclude the recognized requirements "that law be rule-like so far as appropriate, thatit be clear, that it be public, and that it generally be prospective."44 Summersenumerated eighteen (18)45such principles of the rule of law.

41 Id. at 158 allng PHILUPS, THE CONSTITUTIONAL LAw OF GREAT BRITAIN AND TIIECOMMONWEAL1H 28 (1952).

42 Id. at 160.43 ANDREW ALTMAN, ARGUING ABOUT LAW 3 (1997).44 Robert Summers, Propter Honoris &spedum: The Prindples of the RHIe olLow, 74 NOTRE DAME L. REv.

1691 (1999).45 The principles of the rule of law consist of the following:

(1) that all forms of law be duly authorized, and thus conform to established criteria ofvalidity;

(2) that the accepted criteria for determining the validity of law generally be clear and readilyapplicable, and include criteria for the resolution of any conflicts between otherwise valid forms oflaw;

(3) that state-made law on a given subject be uniform within state boundaries, and, so far asfeasible and appropriate, take the perceptive form of general and deftnite rules applicable to classesof persons, acts, circumstances, etc. and also be applicable to offtcials and citizens alike, asappropriate;

(4) that all forms of law be appropriately clear and determinate in meaning;(5) that state-made law, and other law as appropriate, be in some written form, and be

promulgated, published, or otherwise be made accessible to its addressees;(6) that law, and changes in law, generally be prospective rather than retroactive;(7) that the behavioral requirements of a law be within the capacity of its addressees to

comply;(8) that the law on a subject, once made and put into effect, not be changed so frequendy

that its addressees cannot readily conform their conduct to it, or that long term planning cannot befeasible;

(9) that purported changes in the law be made by duly authorized institutions, offtcials, orpersons, and in accordance with known procedures as appropriate;

(10) that a form of law be interpreted or otherwise applied in accord with an appropriate,uniform (for that type of law), and determinate interpretive or other relevant applicationalmethodology, itself a methodology duly respectful of the expressional form and content or that typeof law;

(1) Government must not act or operate above the law;(2) Government should maintain civil order and peace mainly

through a system of general and authoritative rules, specifyingwhatever sanctions are to be imposed for violations;46

(11) that any possible remedy, sanction, nullification, or other adverse consequence of failureto comply with a form of law be known or knowable in advance of the relevant occasions for actionor decision under that law;

(12) that in cases of dispute, a politically independent and impartial system of courts andadministrative tribunals exist and have power, (a) to determine the validity of the law in dispute; (b)to resolve issues of fact, all in accord with relevant procedural and substantive law; and (c) to applythe valid law in accord with an appropriate interpretive or other applicational methodology;

(13) that when an interpretive or other application methodology does not authorize anoutcome under antecedent law, yet a court or a tribunal is urged (sometimes in the guise of suchmethodology) to modifY or otherwise depart from law to achieve such an outcome, courts ortribunals shall have only quite limited and exceptional power thus to modifY or othe'l"ise departfrom antecedent statute, precedent, or other law, so that the legal conclusions and any reasons foraction or decision on the part of the law's addressees which would otherwise arise under valid law,duly interpreted or applied, generally remain peremptory for the law's addressees, including courtsand other tribunals;

(14) that any exceptional power of courts or other tribunals to modifY or depart fromantecedent law at point of application be a power that, so far as feasible, is itself explicitly specifiedand duly circumscribed in rules, so that this is a power the exercise of which is itself law-governed;

(15) that a party who is the victim of a crime, or of a regulatory violation, or of a tort, or of abreach of contract, or of a wrongful denial of a public benefit, or of wrongful administrative action,or of other alleged legal wrong shall be entitled to instigate criminal prosecution insofar asappropriate (with any required official concurrence) or to seek other appropriate redress, before anindependent and impartial court or other tribunal with power to compel the alleged wrongdoer orofficial to answer for such wrong;

(16) that, except for minor matters, no significant sanction, remedy, or other adverse legalconsequences shall be imposed on a party, against his or her will, for an alleged crime, or regulatoryviolation, or tort, or breach of contract, or administrative wrong, or any other alleged legal wrong,without that party having advance notice thereof and a fair opportunity to contest the legality andthe factual basis of any such projected adverse effect before an independent and impartial court orother similar tribunal

(17) that a private party who fails to prevail before such court or tribunal pursuant to (15)and (16) above, whether an alleged victim or an alleged wrongdoer, shall have the opportunity toseek at least one level of appellate review, in a court, as a check against legal error;

(18) that the system and its institutions and processes be generally accessible, that is, (a) thatthere be a recognized, organized, and independent legal profession legally empowered and willing toprovide legal advice, and to advocate causes before courts, other tribunals, and other institutions asappropriate, and (b) that at least where a party is accused of a significant crime or similar violation,denies wrongdoing, and is without financial means to pay costs of defense, such party shall beentitled to have defense provided by the state. Id at 1693-1695.

46 Altman said that this second principle has two important corollaries:(1) No action can be regarded by government as a crime unless a specific law prohibits the

action;(2) No individual can be legitimately punished by government unless they have committed a

crime, and the punishment must be limited to that which is provided for by the law.

(3) General and authoritative rules through which the governmentmaintains order and peace should meet dle followingconditions:

(a) made public;(b) reasonably clear in meaning;(c) remain in force for a reasonable period of time;(d) applied prospectively, not retroactively;(e) applied in an impartial manner that is consistent wiili ilieir

meaning;(f) capable of being complied with; and(g) enacted in accordance wiili preexisting legal rules;

(4) Government must give all persons charged with violating theauilioritative rules a fair chance to defend iliemselves againstilie charges; and

(5) Sovereign people must act widlin ilie requirements oflegality.47

Hager conceptualized the rule of law as consisting of several corecomponents:

(1) constitutionalism;(2) law governs the governments;(3) an independent judiciary;(4) law must be fairly and consistendy applied;(5) law is transparent and accessible to all;(6) application of the law is efficient and timely;(7) property and economic rights are protected, including contracts;(8) human and intellectual rights are protected; and(9) law can be changed by an established process which itself is transparent

and accessible to all.48

The most famous definition of the rule of law was iliat given by Dicey, whonoted three elements: limitation on government arbitrariness and power abuse,equality before ilie law and formal or procedural justice.49

47 ALTMAN, Jupra note 43, at 3-7.'" BARRY IL~GER, RULE OF LAW A LE.'XICON FOR POLICY MAKERS (2000), ""ai/able at

http://www.mcpa.org/ rol/lexiconcom.pdf.49 In particular, Dicey, as mentioned by Peter Payoyo, supra note 1, at 162, enumerated the elements of the

rule of law as follows:(1) That no man is punishable or can lawfully be made to suffer in body and goods except

for a distinct breach of law established in the ordinary legal manner before the ordinary courts ofthe land;

In essence then, the rule of law guarantees that a government is agovernment of laws, not of men.50 As one Filipino politician wrote: "Rule of Lawmeans that no one is above the law, that all must obey. It mandates fair play. Itguarantees rights to citizens. It guards against deprivation of life and possessionswithout due process."51

In the Philippines, the development of the rule of law coincided with thedevelopment of constitutionalism. 52

The concept of the rule of law ftrst developed in the Philippines during theAge of Enlightenment (17th and 18th centuries) when men began to question thedivine right to rule.53 European liberalism and the modern ideas of Liberty, Equalityand Fraternity "began to penetrate the minds of the natives."54 Eventually, theseideas fermented the dissatisfaction of the Filipinos with the Spanish government andtheir longing for freedom, leading to the eruption of the revolution.

The American occupation afterwards further developed the principle of ruleof law in the Philippines. The perpetuation and institutionalization of the rule of lawin the country was consummated through President McKinley's instructions of April7 j 1900 to the Philippine Commission. 55 Based on these instructions, the PhilippineBill of 1902, the Jones Law of 1916 and the Tydings-McDuffte Act were enacted. 56''What remained constant throughout all of these signiftcant developments has beenthe concept of the Rule of Law as a fundamental, and deflning, principle of'democratic government."57

(2) That not only is no one man above the law but that- what is a different thing- here,every man whatever be his rank or condition is subject to the ordinary law of the realm andamendable to the jurisdiction of ordinary tribunals; and

(3) That with us the law of the constitution, the law of a constitutional code are not thesources but the consequences of the rights of the individuals as defmed and enforced by the courts.

50 JOAQUIN BERNAS,THE CONsTITuTION OF TIffi PHILIPPINES,A CCMMENTARY20 (1988). For moredefinitions of the rule of law, S8"! Carlo Carag, MaIaJm tmd the Rule if"Ltzw: A Strucb.trrr1 R«rilatim, 56 PHll... LJ.169 (1981).

51 Teoflsto Guingona, Rule if"Ltzw tmd Derrnracy in the Philippines, in RUE OF LAWAND DEMOCRACYINTIffi PHILIPPINES 15 (Beatrice Gorawantsehy, Roya Moghaddam & Eduardo Pedrosa eds., 1997).

52 The relationship between constitutionalism and the rule of law will be explained in the latter part of thepaper.

53 Andres Narvasa, Ruleif"LtzwtmdI.>uncaw:y: BritfHisturirAJ Examus, in RUE OF LAw ANDDEMOCRACYINTIffi PHILIPPINES 12 (Beatrice Gorawantschy, Roya Moghaddam & Eduardo Pedrosa eds., 1997).

54 AGONCIlLO, supra note 6, at 119.55 Narvasa, supra note 53, at 13.SOld57ld

As the principles of democracy and constitutionalism were infused into theworkings of the government and the State, the principles of the rule of law graduallyseeped into the Philippine legal system.

In Villavicencio v. Lukban,58 the Supreme Court declared that theGovernment of the Philippine Islands is a government of laws. Thus,

No official, no matter how high, is above the law. The courts are the forumwhich functionate to safeguard individual liberty and to punish officialtransgressors. "The law," said Justice Miller, delivering the opinion of theSupreme Court of the United States, "is the only supreme power in our systemof government, and every man who by accepting office participates in itsfunctions is only the more strongly bound to submit to that supremacy, and toobserve the limitations which it imposes upon the exercise of the authoritywhich it gives." (U.S.vs. Lee [1882),106 U.S., 196,220.)59

One of the fundamental principles of the rule of law, the separation ofpowers, was applied by the Supreme Court in Government v. Springer6° where it heldthat "the powers which the Congress, the principal, has seen fit to entrust to thePhilippine Government, the agent, are distributed among three coordinatedepartments, the executive, the legislative, and the judicial." The Court emphasizedthe doctrine of non-encroachment, whereby "[n]o department of the Government ofthe Philippine Islands may legally exercise any of the powers conferred by theOrganic Law upon any of the others."61

Yet another basic principle adopted in the Philippines is the power ofjudicial review, the exercise of which was justified in Marbury v. Madison.62 In Angarav. Electoral Commission,63 the Supreme Court explained the nature, significance andnecessity of judicial review in a constitutional system of government. In the wordsof Justice Laurel:

The Constitution is a definition of the powers of government. Who is todetermine the nature, scope and extent of such powers? The Constitution itselfhas provided for the instrumentality of the judiciary as the rational way. Andwhen the judiciary mediates to allocate constitutional boundaries, it does notassert any superiority over the other departments; it does not in reality nullify orinvalidate an act of the legislature, but only asserts the solemn and sacredobligation assigned to it by the Constitution to determine conflicting claims ofauthority under the Constitution and to establish for the parties in an actual

58 39 Phil. 780 (1919).59ld at 787.60 50 Phil. 259 (1927).61 ld at 273.625 U.S. (1 Cranch) 137 (1803).6363 Phil. 139 (1936).

controversy the rights which that instrument secures and guarantees to them.This is in truth all that is involved in what is termed "judicial supremacy" whichproperly is the power of judicial review under the Constitution.64

II. THE RELATIONSHIP BETWEEN CONSTITUTIONALISMAND THE RULE OF LAW

Though the concepts of constitutionalism and the rule of law developedseparately, it is wholly reasonable to suppose that they are related to each other.

Indeed, most writers adhere to the belief that constitutionalism and the ruleof law are at most, identical or synonymous, and at the least, that one is thecomponent of the other.

Payoyo, for example, after surveying the history of constitutionalism andthe rule of law, deduced that

From the viewpoint that the concept of Rule of Law must be understoodhistorically, the derived conclusion is that todqy's concept of &tIe of Law coincideswith, and is identical to, constitutionalism. Constitutionalism, in turn, has acquired itsmost recent and logical meaning as a principle of government that purposivelyaims to attain and fulfill Human Rights through the mechanism of separation ofpowers in government. In Western constitutions, human rights andconstitutionally guaranteed individual rights are one and the same. The essenceof present-day Rule of Law, of Constitutionalism, is its advocacy of individualhuman rights by state adherence to internationally evolved standards of humandignity and decency.65 [Italics supplied.]

However, the other theory that constitutionalism is a component of the ruleof law cannot be simply dismissed. Hager, for instance, posited thatconstitutionalism is a core component of the rule of law.66 How the concept ofconstitutionalism fits into the model of the rule of law was apdy discussed by Hagerin this wise:

Constitutions then are meant to be the fundamental statement of what a groupof people gathered together as citizens of a particular nation view as the basicrules and values which they share and to which they agree to bind themselves.The significance of a constitution is that once it is ratified by a democraticprocess, which confirms that it is supported by "we the people", in the initialphrase of the U.S. Constitution, it then serves both as an architectural blueprintfor the organization of the institutions of that government and as the standard

64 lei. at 158.65 Payoyo, supra note 1, at 164.66 HAGER, supra note 48.

by which any subsequent actions of the government may be checked to ensuretheir validity. The constitutional standard of validity is inherently that of respectfor the consent of the governed.67

Dicey, on the other hand, viewed the relationship between the two conceptsdifferently. He considered '''the universal rule or supremacy ... of ordinary law' asone element of English constitutionalism."68 In fact, he formulated his theory of therule of law within the framework of 19th century constitutionalism.69

Kay took a different position. He theorized that "constitutionalismimplements the rule of law: it brings about predictability and security in tlle relationsof individuals to the government by defming in advance the powers and limits ofthat government. "70

Li, for his part, postulated a four-fold connection between constitutionalismand the rule oflaw.

First, according to Li, "constitutionalism is a necessary foundation for therule of law."7! One of the core elements of the rule of law is limitation, which meansthat the law has to limit the activities of the government and prescribe the conductof its business. Constitutionalism provides the necessary mechanisms tooperationalize these limitations, through the principles of separation of powers,checks and balances, independent constitutional review and the existence of anindependent judiciary, among others.?2

Second, "constitutionalism provides a minimal guarantee of the justice ofboth the content and the form of law."73 On this point, Li explained thatconstitutional devices, such as representative democracy, competitive and periodicelections and the guarantee of a free press, ensure the just content of laws. At thesame time, a constitutional government provides a minimum safeguard for the formof law to be just.

In order to have procedural justice, specific procedures have to be either writteninto statutes by legislators or articulated by independent judges in case law. Aconstitutional mandate and culture of rights protection is necessary for theestablishment of fair and transparent procedures. In addition, there must be

67 ld at 29.68 Li, Con.rtitutionalism and the RHle 0/ Lzw, 2 Perspectives, at http://www.oycf.org/PcrspectiYes/

7_083100/ constitutionalisffi_and_the_rule_o.htm (Aug. 31, 2000)."9ld70 CONSTITUTIONALISM:PHILOSOPHICALFOUNDATIONS4 (Larry Alexander ed., 1998).71 Li, supra note 68.72 !d." !d.

independent judges dedicated to legal reasoning to see to it that well-establishedprocedures are complied with. A constitutional structure of separation ofpowers, checks and balances and independent judiciary is necessary for theeffective and consistent implementation and enforcement of well-establishedprocedures. 74

Third, "constitutionalism strikes a proper balance between rule of law andrule of person."75 This theory proceeds from the assumption that either the rule oflaw or the rule of person per se is inadequate. 76 The proposed solution was theinstitutionalization of liberal constitutionalism.

Liberal constitutionalism is the technique of retaining the advantages of [the ruleof legislators and the rule of law] while lessening their respective shortcomings.On the one hand, the constitutional solution adopts rule by legislators, but withtwo limitations: one concerning the method of lawmaking, which is checked bya severe iter legis; and one concerning the range of lawmaking, which isrestricted by a higher law and thereby prevented from tampering with thefundamental rights affecting the liberty of the citizen. On the other hand, theconstitutional solution also sees to it that the rule of law is retained within thesystem. Even though this latter component of the constitutional rule has beengradually displaced by the former, it is well to remind ourselves that the framersof liberal constitutions did not conceive of the state as being a machine a fairelois, a lawmaking machine, but conceived of the role of the legislators as acomplementary role according to which parliament was supposed to integrate,not to replace, judicial law finding.?7

Fourth and last, "constitutionalism is safeguarded by the rule of law.Without the rule of law, there is no constitutionalism." 78 According to Li, the ruleof law protects the integrity of a constitutionalist system. She justified thisproposition by arguing that

[I]f laws are exclusively the results of the "sheer will" of the legislators, therecan be no constitutionalism. For a constitutional structure of separation ofpowers, checks and balances and rights protection to exist, there must be somelimits on what the legislators can do. This limit is imposed by the rule of lawand implemented through an independent judiciary, the process of judicial

74 Id75 Id.76 According to Li, titing GIOVANNI SARTORI,THE THEORY OF DEMOCRACYREVISITED 308 (1987), [i)n

a representative democracy, the rule of person means the rule of legislators. Under the rule of person in arepresentative democracy, law is the product of the "sheer will" of the legislators. The rule of person, leftunchecked, presents the danger of tyranny. In contrast, under the rule of law, law is the product of judges'"legal reasoning". The rule of law, by itself, can be inadequate for three reasons. First, the rule of law can be toostatic; secondly, the rule of law can result in the tyranny of (unelected) judges; and finally, the rule of law, byitself, may not address the problem of political freedom. Id

77 Id. quoting GIOVANNI SARTORI,THE THEORYOF DEMOCRACYREVISITED308 (1987).78 Li, supra note 68.

review, and the notion that law is, at least in part, the product of independentlegal reasoning by judges79

In another sense,

The letters of the constitution, by themselves, are neither enabling norconstraining. For constitutional provisions to be meaningfully and effectivelyoperative, there must be an institutional and cultural apparatus, which is partiallycreated by the constitution itself, to implement, enforce and safeguard theconstitution. The rule of law is one key component in the constitution-implementing and -safeguarding apparatus. An independent judiciary,independent constitutional review, and the notion of the supremacy of law allwork together to ensure that the letter and spirit of the constitution arecomplied with in the working of a constitutional government. 80

Some call it civil disobedience. Others call it revolution. The Filipinos call itpeople power.81

This, perhaps, is the simplest way to understand the phenomenon of peoplepower. For Filipinos, however, "people power", as a concept has attained a specialmeaning82 Hence, although history points to three distinct incidents of peoplepower, it is debatable whether, indeed, there were three instances of EDSA peoplepower.

Considering that there is, as yet, no exact meaning of people power, it willbe very instructive to cull the elements of a "genuine" people power from therepository of definitions provided by various authors.83

79Id8°Id"' Perhaps, the concept of people power is richer and more meaningful from a social-psychological

perspective than from a politico-legal point of view. In fact, it existed long before the 1986 EDSA Revolution.As it was previously known, people power was synonymous with concepts like "popular participation","empowerment of people", and "community organizing and mobilization". See PATRlC1ALICUANAN, PeoplePower: A Sodal Psychological AnalyJis, in UNDERSTANDINGPEOPLE POWER 18 (1987) and LEOIVINA CARINO,People Power and Government: TowardJ the Long-Term E.fficary of a &vohetionary Tool, in UNDERSTANDINGPEOPLEPOWER 31 (1987). However, it is the opinion of this author that such understanding refers generally to"people's power", a concept different from "people power".

For the purposes of this paper, people power will be assumed to take its definition from the politico-legal standpoint. It is admitted by this author, though, that "people's power" and "people power" are nearlysynonymous, hence they may consist of common elements.

82 There is, in fact, no settled meaning of people power. Most of the definitions ascribed to people powerconsisted of a suggested enumeration of its elements or a description of what occurred in EDSA. For thepurposes of this paper, these definitions, while strictly speaking insufficient, will be adopted for the time being.

83 This author attempts to provide a set of elements of people power.

People power involves numbers. "[I]ndividuals band together and achievetheir strength in numbers and in groups rather than individual action."84 Thenecessity of numbers stems from the fact that initially, these individuals werepowerless, compared to a President or any other government official with thebacking of the entire State machinery. What numbers are sufficient to stage peoplepower is uncertain, though. "The numbers vary, but numbers are necessary for bothobjective strength and the subjective feeling of strength."85

Numbers alone are not enough, however. Numbers must be built by thethinking constituency, "who cannot be hoodwinked by falsehood."86 Perhaps, this isone of the reasons that some refused to consider EDSA III as true people power. Itwas largely believed that although the crowd that gathered in EDSA on April 2001was massive, its members perhaps even more numerous than the supporters ofEDSA II, it did not constitute people power since most of them came from the"dumb" masa.87 A lot of people were convinced that the masa who participated inEDSA III were paid for their "attendance" and were led to believe that they werefighting a cause.88

This leads to the third important element of people power: the individualsmust be organized for a common causa, that is, for the common good. In otherwords, people power, to be legitimate, should be "directed at elaborating itself in thedirection of justice and democracy."89 It must serve "justice and freedom" and mustseek "to eliminate oppression, exploitation, tyranny and other forces which preventthe full development of people and society."90

Dr. Erlinda Henson, in her empirical survey on the people powerphenomenon, observed that "true people power is one that is resorted to when thereis a right, just and noble cause and when the general welfare of all sectors of societyis at stake."91

84 PAlRJCIA LICUANAN,PeopleP= A Soci4J Psydxi.ugioJ Analysis, in UNDERSTANDINGPEOPLE POWER20 (1987).

8S Id.86 BelindaOIivares-Cunanan, HuwaM!ditbzvebtmrmbnJe?, PHIL. DAlLYINQUIRER,Feb. 22, 2001, atA9.87 Conrado De Quiros, Again, the 'dumb'mtSa, PHIL. DAlLY.INQUIRER,April 30, 2001, at A8.88 These opinions led to a misconception that people power is just middle-class power. Randy David

believes otherwise. In Fir:eQtestims en PeoplePuur!r 2, PHIL. DAlLY INQUIRER,Jan. 28, 2001, at A7, he wrote:"People Power is not so much of the middle class as the informed and critical sectors of the nation, includingthe organized peasantty, labor and the urban poor. Most of all, however, it is the power of the young and thehopeful generation.-

8' PONCIANO BENNAGEN, People's Puur!r Towmi a Just and Durxx:ratic Society, in IsSUESIN SOQo-PoUTICAL'TRANSFORMATIONIN AsIA AND 1HE PACIFIC: THE REcENT PHlLD'PINE POUTICAL EXPERIENCE 100(Carolina Hemandez, Winifreda Evangelista & Edgardo Maranan eds., 1987).

90 LICUANAN,supra note 84, at 21.'1 ERuNDA HENSON, THE "PEOPLE POWER- PHENOMENON A SURVEY OF PARIlCIPANfS'

PERCEPTIONS9 (n.d.).

Specifically, when asked when and on what occasions people power could beused, the respondents' most frequent responses were: a) when there is aviolation of human rights/ abuses of power / oppression/ injustice; b) when thereis a need to change leaders; c) when it involves collective action for a commongoal; and d) incidents similar to the February revolution at EDSA.92

Hence, in both EDSA I and EDSA II, the collective action of the peoplewas directed towards ousting a president perceived to be corrupt and incapable ofgoverning the nation. It was fueled by a general dissatisfaction with the government.The same, however, was not true with respect to EDSA III,93which was impelled bythe desire of the masa to re-install a presidency already tainted with corruption anddishonesty.94

In general, these are the basic components of people power. Most writerswould add more elements, like the intervention of the military, which are critical instaging a successful people power.

Indeed, people power remains an elusive concept. However, it suffices tosay that people power is a concept that is entirely Filipino. It is a creation of theFilipinos' passion for democracy, justice and freedom. The concept of people poweris best encapsulated by these words:

92Id93 Indeed, there are a lot of differences between EDSA II and EDSA III. .According to Randy David in

The third time a.rjarce, PHIL. DAILY INQUIRER, at A7:"Crowds like the one that has gathered at the Edsa Shrine following the arrest of the deposed

president, Joseph Estrada, can in fact accommodate a variety of motives. People may exchange their presencefor nothing more meaningful than a meal or a fee. Some may come for the entertainment. Others may comeout of genuine sympathy for a fallen idol. But many join a crowd like this because it provides a venue for thedischarge of accumulated resentment. What they get is not catharsis, however. The emotions are not purified somuch as they are indulged.

This is not people power; this is its parody, its farcical version. People power is moved by hope; theso-called 'Edsa III' is burdened by despair. People power imagines what life can be if people placed theirdestiny in their hands. This one imagines what life would have been if their patron had not been overthrown.People power desires to move on and remake the world; people resentment desires to dwell in the past anddisplay its wounds.

The only thing they have in common is Edsa. But the place does not make the event; the event makesthe place. Edsa is everywhere there are people who are moved by something bigger than themselves, who findstrength in their solidarity and are determined to change the circumstances of their lives. The Edsa Shrine holdsno meaning for the participants of "Edsa III." They cannot clothe their resentment with the venerablesymbolism of the Edsa Shrine and expect to derive any strength from it. The magic is not in the place but inthe energy that people are able to summon from within their hearts when the memory of greatness movesthem."

94 Belief plays a very important role in determining the element of "for the common good". EDSA IIIsupporters may believe that an injustice was done to former President Estrada and their collective action wasinspired by their desire to correct this injustice. Justice is, liberally speaking, a legitimate goal that inures to thebenefit of all.

The first thing we must recognize about people power is that it is not easy tomount. One cannot just summon it, for it has a will of its own. Cynicalpoliticians will always try to simulate it because they have this impression thatpeople power is nothing more than just bringing large numbers of people to adesignated place, and furnishing them with slogans to shout and banners underwhich to march. They think of people not as willful beings who can makedecisions for themselves but as mobilizable masses that can be manipulated andordered around. They equate people power with crowds for hire. Well, we haveseen what happens to such crowds at the first sign of danger.

Real people power is autonomous, self-willed and well informed. It draws itscourage and determination from the power of its convictions. It is inventive andfree, and not constrained by dogma, political correctness or any party line. It ismoral protest elevated to an art. It is not awed by power. It stands up to power,but it disdains power. That is why it has no leaders, only symbols. It clothesitself in the symbols of everything that is good, decent and responsible.

It is unarmed, non-violent and highly disciplined. It is militant but never sad.Indeed it is festive and celebratory. It is angry at times, but never aggressive. Itdoes not only claim the moral high ground, but it also regards itself as the forceof the new, the vanguard of a hopeful future. Oppressive, morally bankrupt andconupt regimes are its principal targets. The power that installs colonels orgenerals in successful military coups is not people power. That is the power oftanks and armed troops.

The crowds that are mobilized and prompted to sing praises for someonealready in power do not constitute people power. People power is neversycophantic. While it fights tyrants and corrupt leaders, it studiously avoidsbeing used for narrow personal ends. And herein lies its paradoxical strength:people power is a political weapon with political ends; yet it resolutely rejectspolitical ambition.

People power stays aboveground, but it creates its own arena of politicalengagement and its own modes of expression. It fu:mlyopposes power, but itdoes so without attempting to match, weapon for weapon, the armed might ofthe state. Its nakedness is the source of its power. The world out there is its soleprotection. So long as the media bear witness to its stmgglc, no further shield isnecessary. The battle is waged not as a contest of arms but as a fight forlegitimacy. Such terrain is unfamiliar to autocrats, generals and obsoletepoliticians.95

Constitutionalism and the rule of law, understood as setting limitations notonly on the acts of the government but also on the citizens, are undoubtedly at oddswith people power, which is essentially an organized and non-violent action indisregard of the mechanisms provided by the law and the Constitution, in pursuit ofthe common good, and mounted by the people consisting of the country's thinkingconstituency.

As a matter of fact, EDSA II drew flak from some sectors of the societybecause it showed the Filipinos' "propensity" for direct non-institutional action. Inthe context of the events prior to EDSA II, instead of allowing the impeachmenttrial to continue, the people chose to summon its power to oust Estrada.

People Power is clearly the forbidden fruit of politics ... What makes politicaltheorists wary of its use is the belief that for collective life in the modern worldto have any degree of security, it must develop stable institutions under a cultureof law. To fail to do so would be to invite recurrent disorder and destructivecon flict.%

In the usual order of things, people power bows to the primacy of the lawand the constitution.97 It is often observed that "the law may often seem as if itstands among the gods, way above the messy conflict of mortals ... .In the name ofinstitutional stability, political reality is rejected."98 For the sake of stability anddemocracy, sporadic collective action that would endanger the constitutionallyprotected institutions is discouraged.

The contentious issue of the nature of people power Vls-a-visconstitutionalism and the rule of law was brought to the fore in the consolidatedcases of Estrada v. Desierto99 and Estrada II. Macapagal-Anvyo.l00 In these cases, theSupreme Court upheld the legitimacy of the Arroyo presidency, not on the groundthat the people revolted but on the ground that Estrada resigned, therebyoperationalizing the provisions on presidential succession under the 1987Constitution.

Accordingly, what the Filipinos thought to be a People Power II, in thesense that it was understood in 1986, was considered by the Supreme Court as amere exercise of the freedoms guaranteed by the Constitution. In essence, what was

% Id'J7 An obvious exception to this. of course, is a revolution, as what happened in EDSA 1.98 Randy David, People power and the law, PHIL. DAILY INQUlIlliR, Feb. 11,2001, at A9.99 G.R. Nos. 146710-15, March 2, 200l.'00 G.R. No. 146738, March 2, 2001.

perceived to be an extra-constitutional act was declared by the Supreme Court to bean act within the Constitutional framework. The Supreme Court held:

In flne, the legal distinction between EDSA People Power I and EDSA PeoplePower II is clear. EDSA I involves the exercise of the people power ofrevolution which overthrew the whole government. EDSA II is an exercise ofpeople power of freedom of speech and freedom of assembly to petition thegovernment for redress of grievances, which only affected the Office of thePresident. EDSA I is extra constitutional and the legitimacy of the newgovernment that resulted from it cannot be the subject of judicial review, butEDSA II is intra constitutional and the resignation of the sitting President thatit caused and the succession of the Vice President as President are subject tojudicial review. EDSA I presented political questions; EDSA II involves legalquestions. 101

Apparently, the Supreme Court justices adhered to the presumption thatpeople power is incompatible with the institutions of constitutionalism and law, Asa case in point, "while [t]he Constitution prescribes that the sovereign power of thepeople is to be expressed principally in the processes of election, referendum andplebiscite,"102 people power presents an alternative to effect changes in thegovernment and its leadership by advocating popular mass action.

To the minds of the justices, to sanction people power is to court instabilityand anarchy because it allows the people to utilize a mode of chatJ.gedifferent fromthat provided by the Constitution and the laws. In the words of Cooley:

Although by their constitutions the people have delegated the exercise ofsovereign powers to the several departments, they have not thereby divestedthemselves of the sovereignty. They retain in their own hands, so far as theyhave thought it needful to do so, a power to control the governments theycreate, and the three departments are responsible to and subject to be ordered,directed, changed or abolished by them. But this control and direction must beexercised in the legitimate mode previous!J agreed upon. The voice of the people, acting in theirsovereign capacity, can be of legal force on!J when expressed at the times and under theconditions which thry themselves haveprescribed and pointed out I!J the Constitution, or which,consistent!J with the Constitution, have been prescribed and pointed out for them I!J statute;and if by any portion of the people, however large, an attempt should be madeto interfere with the regular working of the agencies of government at any othertime or in any other mode than as allowed by existing law, either constitutionalor statutory, it would be revolutionary in character, and must be resisted and

101 Estrada v. Desierto, G.R. Nos. 146710-15, 2 March 2001; Estrada v. Macapagal-Arryoyo, G.R. No.146738, March 2, 2001, 22.

t02 Id. at 4 (Kapunan, J., separate opinion).

repressed by the officers who, for the time being, represent legitimategovemment.103 [Italicssupplied.]

To rule that EDSA II is of a similar character with EDSA I will onlychallenge the time-tested preeminence of constitutionalism and law in thePhilippines. Seen in this light, it becomes logical for the Supreme Court to draw afine distinction between two types of people power: an extra-constitutional peoplepower and an intra-constitutional one. By making these distinctions, the Court wasable to preserve constitutionalism and the rule of law, particularly by invoking thequintessential power of judicial review.

Justice Ynares-Santiago's separate opinion sums up the inevitable position ofthe Supreme Court on the matter:

The Philippines adheres to the rule of law. The Constitution fixes theparameters for the assumption to the highest office of the President and theexercise of its powers. A healthy respect for constitutionalism calls for theinterpretation of constitutional provisions according to their established andrational connotations. The situation should conform to the Constitution. TheConstitution should not be adjusted and made to conform to the situation.104

IV. RECONCILING PEOPLE POWER WITH CONSTITUTIONALISMAND THE RULE OF LAW

By far, it is accurate to say that the Philippines remains a steadfastconstitutionalist regime. The Supreme Court decision on the legitimacy of thepresidency of Arroyo merely emphasized the foregone conclusion that the Filipinosare supposed to be bound by a commitment to constitutionalism and the rule of law.

This does not mean, however, that people power has no place in thePhilippine legal system. As this author will argue, it is possible for people power tothrive in a system adherent to the constitution and the rule of law.

People power is a right, and even a duty, of citizens in specificcircumstances. In theory, this is referred to as the duty of civil disobedience.lOS

103 lei. at 6 (Kapunan, j., separate opinion, quoting T.M. COOLEY, II CONSTITUTIONAL LIMIT AnONS 1349(8th ed., 1927».

104 lei. at 6 (Ynares-Santiago,j., separate opinion).105 People power and civil disobedience are used in this paper interchangeably.

Cohen characterized this argument as a "higher-law justification of civildisobedience."106 In this type of reasoning, an individual justifies his conduct "byappealing to a law higher than any man-made law-a 'divine' or 'natural' law whoseauthority is supreme. Such laws, he may argue, impose duties so compelling thatthey override any conflicting obligations."107

The existence of this right and duty is explained in the Declaration ofIndependence of July 4, 1776 of the American Congress, which states, among others,that

Prudence, indeed, will dictate that Governments long established should not bechanged for light and transient Causes; and accordingly ally Experience hathshewn, that Mankind are more disposed to suffer, while Evils are sufferable,than to right themselves by abolishing the Forms to which they are accustomed.But when a long Train of Abuses and Usurpations, pursuing invariably the sameObject, evinces a Design to reduce them under absolute Despotism, it is theirRight, it is their Duty, to throw off such Government, and to provide new Guardsfor their future Security. lOB (Italics supplied.]

In turn, this declaration was based on the philosophy of Locke, a staunchadvocate of constitutionalism, who, in The Second Treatise of Civil Government, declared:

But if a long train of abuses, prevarications, and artifices, all tending the sameway, make the design visible to the people, and they cannot but feel what theylie under and see whither they are going, it is not to be wondered that theyshould then rouse themselves and endeavour to put the rule into such hands which m'!Ysecure to them the ends for which government was at first erected, and without whichancient names and specious forms are so far from being better that they aremuch worse than the state of nature or pure anarchy .... 109 (Italics supplied.]

In affirming that constitutionalism itself breathes life to people power (orcivil disobedience), Wheeler has this to say:

106 CARLCOHEN, CIVILDISOBEDIENCE: CONSCIENCE,TACTICSAND1HE LAW 105 (1971).107 Id108 Estrada v. Desierto, G.R Nos. 146710-15, 2 March 2001; Estrada v. Macapagal-Arryoyo, G.R. No.

146738, March 2, 2001, 6 (Mendoza,]., separate opinion).109 1 CURTIS,supra note 8, at 388.

The right and duty of civil disobedience was an essential part of the philosophy of Locke and anotherliberal philospher, Rousseau. As a matter of fact, they inspired the Philippine Revolution of 1896. Accordingto Agoncillo: "Two ph.ilosophers of the Age of Reason left indelible marks on the Filipino intelligentsia of thenineteenth century: John Locke and Jean Jacques Rousseau. Locke in his Two Treatises on G01.rnment (1689)posited that the social contract between the king, who did not exercise absolute powers, and his subjects, meansthat if the king failed to do his duty and did not respond to natural rights, his subjects had the right tooverthrow him. Rousseau re-echoed the same principle in The Social Contratt (1762), agreeing that if thegovernment did not satisfy its subjects, they have all the reason to alter the government to whatever theythought best." AC;ONCILLO,supra note 6, at 120.

Constitutionalism combines two elements: the rule of law and democracy. Thetwo often appear to be incompatible; constitutionalism unifies them. Populardemand sometimes conflicts with the rule of law. Charles H. McIlwain, thegreat authority on constitutionalism, gave a formula for the synthesis of the twoin the form of a political equation: Constitutionalism is "the institutionalization of civildisobedience'~ Civil Disobedience is constitutional populism; the rule of law is constitutionalorder.

Civil Disobedience means that the people can nullify tyrannical governmentalactions. Constitutionalism requires that the capability for doing so must be protected 110

[Italics supplied.]

It is evident that the constitutionalist framework itself allows themechanism of people power in situations where there is abuse and tyranny. In fact, amodern theory of constitutionalism, called the resistance theory, "urges that thepeople have the right to resist a ruler who does not obey or direcdy disobeys theconstitution. "111

It is proposed by this author that the right and duty of the citizens to makeuse of people power, in disregard of the existence of sound constitutionalmechanisms, is justified either because the people deemed it necessary to invoketheir sovereign right or because the institutions are either insufficient or inadequateto resolve the grievances of the people or disrespected by the government itself.

First, the right and duty of civil disobedience arises from the people's rightof sovereignty. According to Bodin,112"[s]overeignty was the absolute and perpetualpower of commanding in a state."113 The real sovereign, in Rousseau's theory, "isthe people, constituted as a political community through the social contract."114 Thesovereignty of the people is inalienable and indivisible. By this, Rousseau meant that"the people cannot give away, or transfer, to any person or body their ultimate rightof self-government, of deciding their own destiny."IIS

110 Harvey Wheeler, The Constitutionality of Civil Dirohedience, at http://www.constitution.org/hwheeler/ConstCivDisobed.htm (2000).

111 Rebecca Bichel, Deconstructing Constitutionalism: The Case of Central Asia and Uzbekistan, athttp://www.icarp.com/publications/pub-deconstruct.html (1997).

112 He was a member of the Politiqucs, a group of French politicians and lawyers in the late 16th century,which asserted the concepts of divine right and sovereignty. Bodin himself provided the classic definition ofsovereignty in The Six Books o/the &publi<' in 1579. 1 CURTIS,supra note 8, at 301.

113 1 CURTIS,supra note 8, at 301.114 EBENSTEIN, .I'upranote 38, at 448.115 Id at 44.

The sovereign is distinct from the government, the latter being a meretemporary agent of the former. According to Rousseau, although the people havedelegated the exercise of their powers to the government, they have not given uptheir so-called legislative function, which is the supreme authority in the state.116

The theory of sovereignty remains an elementary principle of constitutionallaw up to this date. The 1987 Philippine Constitution itself recognizes this age-oldprinciple.ll7 Sovereignty, as it is presently understood, emphasizes the supremacy ofthe people's will over that of the governmental organs that they themselves created.Indeed, a government acting for the common good remains "sovereign" and mustbe obeyed, but once its acts "cease to be for the public good as the people see it,nothing could prevent their abolishing an organ they have ceased to truSt."118 Theright of the people to "abolish" the government is only logical for the latter's"authority comes from the permission of the people."119 What the people haveconferred upon the government may also be withdrawn by them.120

Taking off from the principle that sovereignty resides in the people, it maybe inevitably concluded that the people have a right to depose their leader oroverthrow the government if they failed to discharge the responsibility of attainingthe ends for which the society existed.

However, sovereignty is by no means unlimited. Bodin speaks of thelimitations provided by natural law, eternal law of God and fundamentallaws.121 Incontemporary political thought, sovereignty is restricted by the institutions that thepeople have set up to regulate their affairs. These institutions include thegovernment apparatuses created by the Constitution. This means that the citizensmay not avail of their right to civil disobedience until and unless they have initiallytaken advantage of their political institutions. All the remedies provided by theConstitution and the law should be exhausted first before any resort to civildisobedience or revolution or people power may be had.

These principles provide the bases for the second justification of the rightand duty of civil disobedience. People power is justified if the constitutional

116 Id.111 Art. II, sec. 1 states: The Philippines is a democratic and republican State. Sovereignty resides in the

people and all government authority emanates from them.118 MCILWAIN,.rupra note 15, at 38.119 Id.120 To further bolster this point, it is worth quoting Nono Alfonso, SJ, from the Institute on Church and

Social Issues, who wrote: "The government's hold on power is only incidental. A public office is a publictrust-a privilege loaned to a few as long as they enjoy the trust and confidence of the people. It is ncveranyone', propcrty. No individual, no family, no dynasty has an absolute claim on it; for it belongs to thesovereign people." Nono Alfonso, SJ, Le.r.ron.r on POllJllr, PHIL. DAILYINQUIRER,Jan. 31,2001, at A9.

121 1 CURTIS,.rupra notc 8, at 302.

mechanisms are inadequate or insufficient or are utterly disregarded by thegovernment, provided the citizens at the outset avail of them.

Applying these principles in the Philippine context, it is plain that theFilipinos have in fact given the constitutional machineries a chance to operate beforeresorting to people power. The outbreak of EDSA I, for instance, was triggered bythe failure of the February 7, 1986 snap presidential election to express the trueintent of the people. Although Marcos and his running mate, Arturo Tolentino,were proclaimed winners by the Batasang Pambansa, based on the results arrived atby the Commission on Elections, the opposition candidates, Corazon Aquino andSalvador Laurel, contested the proclamation on the grounds of massive fraud andterrorism.122 It was only when the people felt that the sanctity of their ballots weredisrespected that the people mobilized and demanded the ouster of the president.However, the political crisis already began with the assassination of Benigno AquinoJr. on August 21, 1983.

The Filipinos rose in the 1986 People Power Revolution after President Marcosstole the election. That was the last straw. Marcos' dictatorship controlled theentire apparatus of the political system-the military and police, the courts, thelegislature and the press-and ruled by decree. When he stole' the 1986 snapelection, the people, already fired up by the assassination of Benigno Aquino Jr.in 1983, felt their last chance of changing leaders through a democraticprocess-election-was foreclosed. So, they went to the streets to deposeMarcos.123

A similar situation arose prior to EDSA II. After the disclosure of Gov.Luis "Chavit" Singson accusing Estrada of "taking jueteng payoffs and skinuningexcise tax money,"124a popular call demanding his resignation was deflected by hissubmission to a constitutional process-the impeachment trial. However, thepeople "felt betrayed after the Senate voted 11-10 to seal an envelope containingevidence on corruption."125 The people's confidence in the political institutions,particularly the Presidency and the Senate, was eroded. The impeachment trial,touted as the "constitutional process of last resort,"126was undermined.

Estrada's crisis of confidence derived from incompetent economtemanagement, bad governance and involvement in a wave of corruptionscandals. But the triggering spark of people power was the blasting of the

I22'\GONCILLO, Jupra note 6, at 584.123 Amanda Doronilla, r;dra II womeJ WeJtern media, PHIL. DAILY INQUIRER, Jan. 31, 2001, at 1\9.124 ld125 ld126 Irl

people's confidence in their institutions-e.g., the Senate and the impeachmenttrial. These sparked the rage that culminated in People Power II. Estrada hadundermined key political institutions-such as the political parties, Congressand the Cabinet-as a counterweight to vast presidential powers. When theimpeachment trial collapsed, the people were left without any further option ofdeciding the impeachment case with due process.127

People power, then, remains a sovereign right and duty of the people. It isnecessitated by the breakdown of the political and legal institutions created by thecommunity to safeguard the common good. In particular, this fundamentalsovereign right is exercised if the constitutional or legal processes are rendered inutileby the person or groups of persons to whom the rights of the citizens aredelegated.128

B. PEOPLE POWER FURTHERS THE IDEALS OF CONSTITUTIONALISMAND THE RULE OF LAw

Article II, section 5 of the 1987 Constitution states: "The maintenance ofpeace and order, the protection of life, liberty and property, and the promotion ofthe general welfare are essential for the enjoyment by all the people of the blessingsof democracy."

These are precisely the ideals of constitutionalism and the rule of law. Inparticular, the rule of law helps prevent arbitrary and corrupt government, restrainsvengeance and secures individual liberty.129 The same freedom from arbitrarinessand the guarantee of liberty are likewise the ends of constitutionalism. As Lockesaid:

Men.... enter into society.... the better to preserve himself, his liberty andproperty- ... the power of the society, or legislative constituted by them, cannever be supposed to extend farther than the common good. And so whoever

127 Id128 Amando Doronilla aptly summarized this author's point "Filipinos have a high threshold of patience

to take abuse of power and appalling corruption. But when they are denied the last resort to democratic dueprocess---as in the impeachment trial-they assert their sovereign right to replace their leaders by taking to thestreets.

"The point is that when Filipinos are robbed of the constitutional or legal due process through whichthey can effect political change, they exercise their fundamental sovereign rights. If Marcos and Estrada hadnot scuttled and undermined the integrity of the democratic processes, they could have been changed withoutpeople power. The antidote against future people power is to stn:ngthen countervailing political institutionsand good governance." Id

129 ALTMAN,supra note 43, at 17.

has the legislative or supreme power of any commonwealth is bound to governby established standing laws, promulgated and known to the people, and not byextemporary decrees; by indifferent and upright judges who are to decidecontroversies by those laws; and to employ the force of the community at homeonly in the execution of such laws, or abroad to prevent or redress foreigninjuries, and secure the community from inroads and invasion. And all this tobe directed to no other end but the peace, safety, and public good of thepeople.130

The same values of general welfare, liberty and peace, among others,inspired the idea of people power in 1986. It was backed by "nationalist anddemocratic causes and pro-people causes"131which were all directed to the commongood. As former President Aquino herself said at her swearing in ceremony:"People power shattered the dictatorship, protected those in the military who chosefreedom, and today has established a government dedicated to the protection andmeaningful fulfillment of our rights and liberties."132

More importantly, people power, constitutionalism and the rule of law wereconceived primarily to attain justice in the society. The 1987 Constitution itself isreplete with provisions promoting justice.133 People power, no doubt, was foughtfor by the people to achieve social justice, an ideal close to the heart of everyFilipino.

Social Justice, for us Filipinos, means a coherent intelligible system of law, madeknown to us, enacted by a legitimate government freely chosen by us, andenforced fairly and equitably by a courageous, honest, impartial, and competentpolice force, legal profession and judiciary, that first, respects our rights and ourfreedoms both as individuals and as a people; second, seeks to repair theinjustices that society has inflicted on the poor by eliminating poverty as ourresources and our ingenuity permit; third, develops a self-directed and self-sustaining economy that distributes its benefits to meet, at first, the basic

130 1 CURTIS, JII/Jra note 8, at 381-2 quoting JOHN LOCIill, THE SECOND TRE""nSE OF CIVILGOVERNMENT.

131 HENSON, Jupra note 91, at 8.132 Id at 2.m Some of these provisions are:

Art. II, sec. 9: "The State shall promote a just and dynamic social order that will ensure the prosperityand independence of the nation and free the people from poverty through policies that provide adequate socialservices, promote full employment, a rising standard of living, and an improved quality of life for all."

Art. II, sec. 10: "The State shall promote social justice in all phases of national development."Art. III, see. 1 states: "No person shall be deprived of life, liberty, or property without due process of

law, nor shall any person be denied the equal protection of the laws."Art. XIII, sec. 1: "The Con&'fess shall give highest priority to the enactment of measures that protect

and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, andremove cultural inequities by equitably diffusing wealth and political power for the common good."

Art. XIII, sec. 2: "The promotion of social justice shall include the commitment to create economicopportunities based on freedom of initiative and self-reliance."

material needs of all, then to provide an improving standard of living for all, butparticularly for the lower income groups, with time enough and space to allowthem to take part in and to enjoy our cultures; fOurth, changes our institutionsand structures, our ways of doing things and relating to each other, so thatwhatever inequalities remain are not caused by those institutions or stn1etures,unless inequality is needed temporarily to favor the least favored among us andits cost is bome by the most favored; and fifth, adopts means and processes thatare capable of attaining these objectives. "134

People power, after all, is not an empty concept but a dynamic one fraughtwith ideals. It is, in fact, bolstered by the ideals of a democratic and constitutionalistsystem like the Philippines.

The resiliency of the regime of constitutionalism and the rule of law in thePhilippines was demonstrated by its ability to preserve itself despite the occurrenceof three EDSA people power in a span of 15years. Though it cannot be argued thata constitutionalist regime will explicitly adopt people power as a legal mode ofeffecting change in the government, it has been shown that it is possible to reconcilethe concept of people power with constitutionalism and the rule of law.

This is significant because it clarifies the relationship of people power withconstitutionalism and the rule of law. Indeed, people power should not be viewedoutright as an attack or a serious challenge upon a constitutionalist regime. Instead,it should be viewed as a mechanism to fill the gaps of a system adhering toconstitutionalism and the rule of law.

I think we have been extremely fortunate to have stumbled upon people poweras a tool for resolving difficult political crises at a time when armed uprisingshave become increasingly costly for nations in the modem world. While othersocieties remain trapped in dysfunctional political structures and processes thatimpede their growth, we have been more daring in our quest for solutions,trusting only in the basic goodwill of our people.135

In fme, the concepts of people power, constitutionalism and the rule of lawshould not be regarded as opposing ideas. After all, they all walk for the benefit ofthe people: by enhancing democracy and promoting justice.

134 As defmed by Atty. Jose W. Diokno. BENNAGEN, supra note 89, at 10l.m David, supra note 95.

THE REMOVAL OF PRESIDENT ESTRADA THROUGHPEOPLE POWER: A THREAT TO CONSTITUTIONAL

DEMOCRACY

In contrast with the previous article, Mr. Raymond Vincent G. Sandovalagrees with the criticisms of People Power II regarding its detrimental effect onconstitutionalism and the rule of law. Having been a participant himself in theprotest rallies, Mr. Sandoval recognizes that People Power II was a valid exercise ofthe constitutionally-protected right to freedom of speech and to peaceably assembleand petition a corrupt and inept government for redress of grievances. He stressesthat People Power per se is not harmful to a democracy; under extremecircumstances, such as those surrounding the first People Power in 1986, it may bethe only tool available to enable the survival of a democracy. He argues, however,that such exceptional circumstances were absent during People Power II. Theresultant mode of removal of President Estrada failed to abide by the strict rwes laiddown in the Constitution as regards the succession of the vice president to thepresidency. This thus sets a dangerous precedent which will serve to undermine thefoundation of Philippine society as a constitutional democracy.

Part I of Mr. Sandoval's article discusses the relation of constitutionalism tothe rille of law. Part II analyzes the concept of people power and how the brand ofpeople power used in ousting Estrada from the top position in the nation differedfrom the 1986 EDSA Revolution instrumental in booting out the Marcosdictatorship. Part III focuses on how the removal of Estrada through people powercreated a constitutional crisis, that is, a situation wherein the significance andinviolability of the constitution were disregarded, thus posing as an ever-presentthreat to the Philippine Republic as a constitutional democracy.

THE REMOVAL OF PRESIDENT ESTRADATHROUGH PEOPLE POWER: A THREAT TO

CONSTITUTIONAL DEMOCRACY*

He who bids the law rule mqy be deemed to bid God and Reason alone rule, but he whobids man rule adds an element oj the beast;for desire is a wild beast and passion perverts theminds oj rulers even whm they are the best oj men.

The eventful days of January 17-20, 2001 will never cease to comprise amomentous occasion in Philippine history. The moment the Senate voted 11-10against the opening of the envelope purportedly containing bank records confirmingcorruption charges against former President Estrada, mobile phone text messagesraced throughout the metropolis, instructing the outraged citizenry to gather atEpifanio de los Santos Avenue (EDSA), decry the blatantly party-influenced Senatevote and demand the resignation of Estrada.2 The crowd at EDSA grew in number,at one point exceeding two million in number, until eventually the top military brassshifted their allegiance to then-Vice President Arroyo.3 Then it was all over for

* Submitted during the 2001-2002 Philippine Law Journal Student Editorial Board Examination.** Vice-Chairperson, 2001-2002 Student Editorial Board, Philippine Law Journal. Second Year, Ll.B.,

University of the Philippines College of Law. BA Psychology, University of the Philippines-Diliman.I Alberto Muyot, Amendment No.6 and tbe Rule of Law, 59 PHIL. L.J. 156 (1984).2 Suppm· .•.tim .cpark.1"outrage, PHIL. DAILY INQUIRER,Jan. 17,2001, at A1 ., Christine Herrera et a!., AJC1) deal.rfatal blow to the pre .•.idenry, PHIL DAILY INQUIRER,Jan. 20, 2001, at A1;

Carolyn ArguilJas, Rrye .•.VOWJ to obeyonlYMacapaga/' PHIL. DAILY INQUIRER,Jan. 20, 2001, at A19.

Estrada, who was elected with the largest electoral mandate4 in 1998. He had nochoice but to vacate Malacanang.

News of Estrada's downfall was met with the loudest of cheers not only inthe streets but also in the stock market and across the world.s The peso-dollarexchange rate soared from a historic low of P54.79 to $1 to P47.50 to $1.6 ThePhilippines had allegedly demonstrated once again that it possessed the ability todispose of a corrupt and inept leader who had lost the moral ascendancy to govern,similar to how the Marcos dictatorship was toppled in 1986. Many were alluding tothe successive triumph of "People Power," hence referring to the momentous seriesof events as ''People Power 11."7

Yet, while the removal of Estrada from power may have indeed beensomething to celebrate, many of the legal minds of the country could not help butquestion the unusual circumstances that surrounded the transfer of power.

As will be discussed at length later on in this article, the problem withEstrada's ouster was that it did not abide by the strict rules laid out in theConstitution regarding the succession of the vice president to the presidency. Thecontroversial nature of the extra-constitutional mode of succession which Arroyofollowed lies in its deleterious effects on constitutionalism and the rule of law. Withthe Philippines being both a constitutional government and a representativedemocracy, constitutionalism and the rule of law must be upheld for these are itsvery foundations. As such, Part I of this article will discuss the relation ofconstitutionalism to the rule of law. Part II will analyze the concept of "PeoplePower" and how the brand of People Power used in ousting Estrada from the topposition in the nation differed from the 1986 EDSA Revolution instrumental inbooting out the Marcos dictatorship. Part III will focus on how the removal ofEstrada through People Power created a constitutional crisis, that is, a situationwherein the significance and inviolability of the constitution were disregarded, whichwill be an ever-present threat to the Philippines as a constitutional democracy.

It is submitted that People Power as a direct mode of removal of a head ofstate, under the particular circumstances surrounding Estrada's ouster, threatens thenature of the Philippine Republic as a constitutional democracy.

" Hrook Larmer & Mahlon Meyer, The Retum of People Power, NEWSWEEK,Jan. 29, 2001, at 13; WilliamOverholt, It, "People Power' Again, but thi' Time lPithout tbe People, Intenlational Herald Tribune, Jan. 24, 2001,http://www.iht.conl/articles/8430.htm.

5 Dona Pazzibugan & Jennie !lustre, World praim bloodle.r.rnew people power, PHIL. DAILY INQUIRER,Jan. 21,2001, at A2.

6 C1arisa Batino, Pe.ro make.r dramatic rebound to P47.50, PHIL. DAILY INQUIRER,Jan. 20, 2001, at A2.1Sandra Burton, People Power Redux, TIME,Jan. 29,2001, at 14-19.

Burin has pointed out that ''legally... constitutionalism may be equated tothe rule of law."8 These two abstract concepts are embodied in a "determinate,stable legal order which prevents the arbitrary exercise of political power andsubjects both the governed and the governors to 'one law for all men."'9

Constitutionalism has been described as the ordering of political processesand institutions on the basis of a constitution, which lays down the pattern of formalpolitical institutions and embodies the basic political norms of a society. Theconstitution not only regulates the relationships of organs of government to eachother; it also limits the discretionary powers of government, and, in doing so, itprotects the citizen.

It is stressed, however, that constitutionalism is not identical withconstitutions, which can often be meaningless pieces of paper which are not inaccordance with established political institutions.10 Subsequently, a government mayembody constitutionalism whether it has a written constitution or not.11Nevertheless, where there exists a constitution, the rule of law is manifested eitherexpressly or implicitly. The 1987 Philippine Constitution has expressly referred tothe rule of law in its preamble12 and has likewise indirectly invoked it throughreference to elements of the rule of law. Article II, section 1 of the Constitutiondeclares that the Philippines is "a democratic and republican State" and that"sovereignty resides in the people and all government authority emanates fromthem."

Fernandez has explained that the rule of law is the spirit behind the conceptof the republican state, adding that "the concept of Rule of Law epitomizesrepublican government."13 Furthermore, an essential element of a republican state isthat of the doctrine of separation of powers, which is indispensable to the rule oflaw.14The principle of separation of powers has been adopted because arbitrary rule

8 Muyot, .flfjJra note 1, at 14t.9 Irene Cortes, Con.rtitutionali.rm in tbe Pbilippine.r-A View From Afademia, 59 PHIL. L.J. 338 (19R4), n.1.l{) Id.11 ANDREWALTMAN,ARGUING ABOUTLAW 6 (1997).12 CaNST. Preamble:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just andhumane society and establish a Government that shall embody our ideals and aspirations, promote thecommon good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings ofindependence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, andpeace, do ordain and promulgate this Constitution. [Italics supplied.]

13 Muyot, J"lfjJra note 1, at 142.14 Id.

and abuse of authority would inevitably result from the concentration of powers inthe same persons or body of persons which will be destructive of individualliberty.15

John Adams clearly intertwined the two concepts in the MassachusettsConstitution of 1780:

In the government of this commonwealth, the legislative department shall neverexercise the executive and judicial powers, or either of them; the executive shallnever exercise the legislative and judicial powers, or either of them; the judicialshall never exercise the legislative and executive powers, or either of them; to theend it mc!y be a government of hws and not of men.16 [Italics supplied.]

Dicey has further expounded on the concept of the rule of law by offeringthree perspectives. One, the rule of law may be understood as the absolutesupremacy or predominance of law as against arbitrary powers, that of the ideal of agovernment of laws and not of men: "That no man is punishable or can lawfully bemade to suffer in body and goods except for a distinct breach of law established inthe ordinary legal manner before the ordinary courts of the land." Another is thatthe rule of law may represent the equality of every person, without exception, beforethe law: "That not only is no one man above the law but that - what is a differentthing - here, every man whatever be his rank or condition is subject to the ordinarylaw of the realm and amendable to the jurisdiction of ordinary tribunals." Lastly,based on the English experience, the rule of law is a recognition of the fact that thelaw of the constitution was not itself the source of the rights of the individuals butonly a codification of such rights: "That with us the law of the constitution, the lawof a constitutional code are not the sources but the consequences of the rights of theindividuals as defined and enforced by the COurtS."l?

These three perspectives primarily influenced the International Commissionof Jurists in their "Act of Athens" characterization, wherein the jurists perceived therule of law as entailing that:

(1) The State is subject to the law;(2) The Government should respect the rights of the individual under the

Rule of Law and provide effective means for their enforcement;(3) Judges should be guided by the Rule of Law, protect and enforce it

without fear or favour and resist any encroachments by governments orpolitical parties on their independence as judges; and

15 Carmelo Sison, The SlijJremeCom and the Constitution, 67 PHIL LJ 309 (1993).16 Muyot, slijJranote 1, at 141.17 Id.

(4) Lawyers of the world should preserve the independence of theirprofession, assert the rights of the individual under the Rule of Law andinsist that every accused is accorded a fair trial.18

Regala, in tuIn, interpreted the aforementioned "Act of Athens" asestablishing the important elements of the rule of law: separation of powers andchecks and balances, objectivity in the law, limitations on the government in itsrelation to individuals, fair procedures in the application of law to the individual, andan independent judiciary and an independent bar. In summary, he observed that"the rule of law signifies a state of affairs in which legal barriers to governmentarbitrariness and legal safeguards for the protection of the individual must beobserved."19

Applying the concepts of constitutionalism and the rule of law to actualgovernance, Altman describes a constitutional government (or a democracy, as dletwo terms have been used interchangeably20) as one which abides by the "principlesof legality" or the principles of the rule of law,21that is, certain principles whichplace vital restrictions on how government is permitted to operate and how politicalpower may be exercised. These principles are:

(1) A government should not exercise its power in an arbitrary manner;(2) A government should maintain civil order and peace mainly through a

system of general and authoritative rules, specifying whatever sanctionsare to be imposed for violations; and

(3) The general and authoritative rules through which government maintainsorder and peace should meet the following conditions:(a) made public;(b) reasonably clear in meaning;(c) remain in force for a reasonable period of time;(d) applied prospectively, not retroactively;(e) applied in an impartial manner that is consistent with their meaning;(f) capable of being complied with; and(g) enacted in accordance with preexisting legal rules.

Government must give all persons charged with violating the authoritativerules a fair chance to defend themselves against the charges.22

Observation of such principles of legality distinguishes a constitutionalgovernment from an arbitrary one.23

" Id.19Id.20 CAIU. FRlEDRICI-I, CONSTITUTIONAL GOVERNMENT AND DE.\lOCR.'ICY 571 (1965).21 ALTMAN, Jupra note 11, at 3.22 !d. at 3-6.23Id. at 3.

Constitutionalism and the rule of law have been regarded as crucial parts ofany morally defensible political system from the beginning of Westem civilization inancient Greece, more than 2,500 years ago.24 In other words, for a constitutionalgovernment such as ours to survive and to attain maturity, the rule of law must beupheld. The rule of law requires that the law's decision be accepted even if it violatesone's sense of moral justice.25

For a phrase that has been embedded so deeply into the Filipino psyche,"people power" astonishingly has no clear-cut defmition. Nevertheless, it is widelyknown that Estrada's ouster was referred to by many as "People Power II," that is,the "sequel" to the bloodless people's revolution in 1986 which drove Marcos out ofMalacafiang.26 It is not clear exactly how the term was coined, but it has been usedinterchangeably with such concepts as "popular participation," "empowerment ofpeople," and "community organizing and mobilization." It bears reference to thegeneral term "people's power" which refers to the "involvement of a significantnumber of persons in situations or actions which enhance their well-being."

A few months after the EDSA Revolution in 1986, psychologist Licuanananalyzed the "anatomy" of people's power and discussed its apparent basic elementsor characteristics.27 She surmised that there were six elements of people power:

1) awareness of a problem;2) initialpowerlessness;3) number;4) concrete involvement;5) human and socialdevelopment; and6) psychologicaltransformation.28

The first element, awareness of a problem, involves that aspect of humannature which reveals that people are motivated to act only when they actually feel asubjective threat that comes from physical danger, imminent eviction from one'shome, death of a loved one, etc. Licuanan stresses that "the ordinary person isangered less by the knowledge that unjust structures exist in Philippine society thanfrom firsthand experience with injustice."29 This assertion will be of utmost

24 Id. at 2.25Id. at 19.26 People Power II: History Repeats Itself, PHIL. DAILY INQUIRER,]an. 20, 2001.27 Patricia Licuanan, People's Power. A S ocio-P[Ych%gical Perspective, 23"' Annual Convention of the

Psychological Association of the Philippines (Aug. 5-7, 1986), at 22-31 (transcript available in the University ofthe Philippines Main Library).

28 Id. at 23-26.29Id

significance in differentiating the People Power that drove Marcos out of the countryand that which ousted Estrada.

During the 1986 EDSA Revolution, the economic crisis, the murder ofNinoy Aquino and the election fraud during the snap elections combined to serve asthe proverbial last straw that led the passive Filipino,30 the Filipino whose margin oftolerance for stress and suffering is rather wide,3! to say sobra na, tama na (enough isenough). While poverty and injustice were long part of Philippine society, somethingconcrete had to take place in order that such injustice becomes real and immediate topeople and thus lead them to take action against the dictatorial government. Suchaction leads to the fourth element listed above, concrete involvement. Concretephysical activities at the micro level such as rallies, marches, boycotts and picketsenable the transition from passive to active participation. These micro activities reapthe first fruits of power and are instrumental in maintaining the morale andconfidence necessary to sustain a long-term struggle.

Subsequendy, concrete involvement of a large number of people leads tothe sixth element, psychological transformation. Active participation and a sense ofbeing able to make a difference in society leads to an enhanced self-concept, self-confidence, self-reliance and a sense of dignity. In fact, people's power served as acure to the sense of helplessness which had infected majority of Filipinos during theMarcos years. The censorship and oppression carried out by the Marcos regimecreated a situation wherein most Filipinos had little control over what happened tothem, making them passive, fearful and depressed. In short, the abuses of theMarcos dictatorship led to a cycle of suppression and despair which served toperpetuate Marcos' monopoly of power. It took something as drastic as people'spower to break this cycle.32

People's power necessarily involves people who are initially powerless;people's power is not associated with those who already possess economic, politicalor social power. The wonder of people's power is that these initially powerlessindividuals are able to overcome more powerful groups. Licuanan points out thatso-called people's power in the hands of the powerful is a farce and is in reality aform of bullying. Closely associated with this is the element of number. Initiallypowerless people are able to overcome power cliques through strength in numbers.Large numbers provide objective strength as well as the subjective feelings ofstrength. Objectively, it is obviously more difficult to quell unrest involving

30 Id at 23.31 Alfredo Lagmay, CIIltumi and Philosophical Dimensions of the February &volution, 23'" Annual Convention of

the Psychological Association of the Philippines (Aug. 5-7, 1986), at 32-39 (transcript available in the Universityof the Philippines Main Library).

32 Licuanan, supm note 27, at 24-25.

multitudes than a handful of people. Subjectively, a member of a large group feelsprotected by the law of averages or feels the comfort of shared consequences.33

The fifth element of people's power is human and social development. Thephenomenon of people's power is grounded upon the interests of the commongood. It cannot be manipulated to serve the interests of a powerful few or tomaintain unjust structures.

Particularized in the present context, people power refers to a spontaneous,peaceful, spiritual and widespread civil disobedience movement34 that effects anextra-constitutionaP5 change of leadership in government. While People Power Iand II essentially correspond to this broad definition, there are significant differencesbetween the two.

While the removal of Marcos (people Power I) and of Estrada from power(people Power II) both led to questions of legitimacy regarding the resultantgovernments, the legitimacy of the Aquino government was resolved on the basis-ofthe extra-constitutional nature of its establishment while that of the Arroyoadministration was decided on the basis of the existing 1987 Constitution. TheAquino government was held to be "revolutionary in the sense that it came intoexistence in defiance of the existing legal processes" and in violation of theprovisions of the 1973 Constitution since the Batasang Pambansa had previouslydeclared Marcos as the winner in the 1986 presidential election.36 The FreedomConstitution declared that the Aquino government was established via a directexercise of the power of the Filipino people "in defiance of the provisions of the1973 Constitution, as amended."37 The people of the Philippines had judged andconsequently accepted Aquino as president and had thus rendered her administration

33 Id. at 24.,. CONRADO DE QUIROS, "People Power" and the Paradigm oj'Salwtion, in FEBRUARY REVOLUTION: THREE

VIEWS13-15.35 Rose Marie King, The Legal Status if the Aquino Government: Foundations for Legitimary, 61 PHIL. L.J. 137

(1986).36 Letter of Associate Justice Reynato S. Puno, 210 SCRA 598-599, 29 June 1992.'7 Estrada v. Desierto, G.R. No. 146710-15, 2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No.

146738,2 March 2001.

a de jure government,38 While this pronouncement may not have been entirelycorrect, it is what the Supreme Court at the time declared.39

38 Joint Resolution, Lawyers' League for a Better Philippines and/or Oliver A. Lozano v. Pres. CorazonC. Aquino, et aI., G.R. No. 73748; People's Crusade for Supremacy of the Constitution, etc. v. Mrs. CoryAquino, et aI., G.R. No. 73972; and Councilor Clifton U. Ganay v. Corazon C. Aquino, et aI., G.R. No. 73990,22 May 1986.

39 In King, supra note 35, it was pointed out that a de jure government is a "government of right, agovernment established according to the constitution of the state and lawfully entitled to recognition andsupremacy and the administration of the state" while a de facto government "assumes a character very closelyresembling that of a lawful government." The latter is established when "a usurping government expels theregular authorities from their customary sets and functions and establishes itself in their place, and so becomesthe actual government of the country." The basic distinction is thus that a de jure government is "founded onexisting constitutional laws of the state" while a de facto government is not.

King goes on to mention that a de facto government may be of three kinds:

(1) that government that gets possession and control of, or usurps by force, orby the voice of majority, the rightful legal government and maintains itself against thewill of the latter such as the government of England under the Commonwealth, first byParliament and later by Cromwell as protector;

(2) that established as an independent government by the inhabitants of acountry who rise in insurrection against the parent state such as the government of theSouthern Confederacy in revolt against the Union during the war of secession; and

(3) that which is established and maintained by military forces who invade andoccupy a territory of the enemy in the course of war and which is denominated as agovernment of paramount force, such as the case of Castine in Maine, which wasreduced to a British possession in the war of 1812 and of Tampico, Mexico, occupiedduring the war with Mexico by the troops of the United States.

King points out that the Aquino Government actually fell into the mold of the first type of de factogovernment and not of a de jure government. The government fulfilled the criteria of a de facto governmentwhich are:

(1) actual possession of supreme power over the territory in consideration;(2) acquiescence as evidenced by the habitual obedience to the de facto

government's authority; and(3) recognition of the government as either de facto or de jure by the

cornmunity of nations.

Nevertheless, the Supreme Court unequivocally held that the Aquino Government is "in fact and law ade jure government. Ooint Resolution, Lawyers' League for a Better Philippines and/or Oliver A. Lozano v.Pres. Corazon C. Aquino, et aI., G.R. No. 73748; People's Crusade for Supremacy of the Constitution, etc. v.Mrs. Cory Aquino, et aI., G.R. No. 73972; and Councilor Clifton U. Ganay v. Corazon C. Aquino, et aI., G.R.No. 73990, 22 May 1986)" These cases held that "the legitimacy of the Aquino Government is not justiciablematter. It belongs to the realm of politics where only the people of the Philippines are the judge. And thepeople have made the judgment." Secondly, they invoked the doctrine of acquiescence, saying that "the peoplehave accepted the government of. ..Aquino." Thirdly, it was noted that the new government had already takenup the reins of administration and was "in effective control of the entire country." Finally, it was pointed outthat the Aquino government had been recognized by the community of nations.

King is quick to discern that the elements of a de jure government as identified by the Supreme Courtwere identical to the elements of a de facto government except for the point of origin. King, however,reconciles this conflict by resorting to the hair-splitting opinion of Bernas, that "for so long as the governmentis in possession; it is the only law and it is legal within the context of its structures." King goes on to say that"the question of a government being either de jure or de facto comes into play only when that government is

fmally ousted." As such, Bernas explains that "once a government is ousted, however, for the purpose ofdetennining the validity of the actions taken by the ousted government, it becomes necessary to ask whether itwas merely de facto or de jure."

King thus concludes that "for all intents and purposes, the Aquino Government as it exists at thispoint in time, is a de jure government" She follows up this conclusion with the confusing quote from Philipsv. Payne [92 U.S. 130, 133 (1875») that "a government de facto in firm possession of any country, is clothed,while it exists, with the same rights, powers and duties, both at home and abroad, as a government de jure."

Agnes Maranan, in The Dilemma ofLegitimt1fY: A Two-Phase Resolution, 61 PHIL. L.J. 154 (1986), arguesthat there can be no basis for labeling the Aquino government as revolutionary for the following reasons:

(1) It did not come to power through violent means; and(2) There was no overthrow of the existing legal order, as evidenced by the

absence of radical change in the laws or the structure of government

Similar to King, Maranan agrees with the Supreme Court that the Aquino government was a de juregovernment, but not for the reasons stated by the Court. She stresses that "international recognition is notsynonymous to legitimacy" and that "express recognition by the community of nations is not sufficient topronounce a government de jure." She differentiates between the meanings of "de jure" and "de facto" in theconstitutional law sense and in the context of intemational law. In the former, a de jure government issynonymous with "legitimate" or "constitutional" government, while a de facto government is equivalent to an"actual" or "usurping government." In the latter, however, "de jure" and "de facto" refer merely to ncognition,rather than the actual legal status of the government. A government is recognized as de jure when it isexercising "unrivalled control over the whole of the territory of a State," although said government may notnecessarily be regarded as the sovereign of the territory. As such, "a government may be de facto in theconstitutional law sense, and still enjoy de jure recognition by the community of nations. The grant ofinternational recognition is not a grant of constitutional legitimacy."

Maranan concedes that the Aquino government fulfilled the two-fold test in detennining the existenceof a de facto government, at least superficially: effective control and popular acquiescence. However, Fenwickand Houghton add the requirement of permanence or stability as essential to the de facto character of agovernment, wherein people render "habitual obedience" to the government's authority. Oppenheim addedfurther that "[a) government which enjoys the habitual obedience of the bulk of the population with. a nasonableexp<ttang of permanence can be said to represent the State in question and as such to be entitled recognition."Maranan posits that while the Aquino government was initially Je facto, its ability to maintain stability wasquestionable. She pointed to the "spirally tension and unrest that currently grips the country in the face ofbombings, kidnapping cases and murder, as well as the deepening conflict among officials in government." Sheconcludes that "the government's inability to keep the country stable implies that, using the standard ofpermanence, the Aquino government cannot claim a de facto legal status."

Maranan arrives at a quandary: by any principle of constitutional and international law, the Aquinogovernment cannot be properly classified as de jure or de facto. As such, she proposes a two-phase resolution,by dividing the government's term into the period from Proclamation td Promulgation of the Pro/lisional Constitution,and the period After Promulgation to the Present (the article was published in June 1986). She suggests that duringthe first phase, the Aquino government was a de facto government, but the act of Promulgation transformed itinto a constitutional government, but one under the 1973 Constitution as amended, and not under theProvisional Constitution. The latter assertion is founded upon the fact that the assumption of power by a defacto government in contravention of the provisions of the constitution does not imply automatic abrogationof the same. She suggests that a more theoretically sound proposition would be that at the time a de factogovernment assumes power, the constitution it defied is merely suspended but continues to exist. She believesthat the act of promulgating a Provisional Constitution produced the dual effect of reviving and amending the1973 Constitution, thus rendering the Aquino government a de jure government.

The Arroyo administration, on the other hand, is not revolutionary incharacter and claims its legitimacy from the 1987 Constitution. Arroyo stressed thatshe was discharging the powers of the presidency under the authority of the presentConstitution.40

Some foreign journalists, while correct to a certain extent, haveoversimplified the comparison of the two administrations. Overholt, for one,points out in the International Herald Tribune that People Power I was the validation ofthe 1986 snap elections wherein Aquino was the clear winner, regardless of thepronouncements of the Batasang Pambansa, while People Power II was theinvalidation of Estrada's election, wherein he garnered more than 10 million votes;Hthe largest in Philippine history.42 For veterans of the first People Power, such astatement may strike sensitive chords. People Power I was not merely the validationof an election but the culmination of twenty years of tyrannical martial law rule. Aswas pointed out earlier in this section, election fraud, along with the worseningeconomic crisis in the eighties and the assassination of Ninoy A<pino, were merelypart of the proverbial "last straw" that broke the camel's back, that pushed Filipinosover the edge and led them to declare sobra na, tama na (enough is enough).43Contrary to Overholt's assertion, the electoral contest merely provided theframework and organizing principle for the uprising. It produced an unchallengedfocal point of leadership for the broad anti-dictatorship forces.44

On the other hand, Overholt's statement that People Power II invalidatedEstrada's election is comparably more palatable than his views concerning the 1986EDSA Revolution. While the fraudulent election results and the pitiful Senate votemay have been equally dubious, there lies a significant difference. The former was aprocess wherein cheating was obviously taking place, by virtue of the harassment andintimidation of voters who intended to vote for Aquino, vote-buying, ballot boxsnatching and outright murder which were carried out in broad daylight.45 TheBatasang Pambansa was forced to declare Marcos the winner.46 There was anobjective basis to the public clamor for the proper counting of votes for Aquino.

The Senate vote, on the other hand, was not fraudulent. Rule VI of theRules of Procedure in the Senate on the impeachment trial supports the procedure

40 Estrada v. Desierto, G.R. No. 14671Q.15, 2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No.146738,2 March 2001.

411d.42 Lanner & Meyer, supra note 4, at 13; Overholt, supra note 4, at 13.4l Licuanan, SlI{JYa note 27, at 23.44 Alex Magno, The AnatonyrfPolitiaJ 0J1J4pse, in FEBRuARYREvoLUnON: THREE VIEWS8-9 (1989).45 PEOPLE POWER, 1HE PHnJpPINE REVOLUTION OF 1986: AN EYEWrlNESS HIsroRY outside back

cover (1986).46 Magno, SlI{JYa note 44.

that led to the 11-10 vote preventing the opening of sealed bank documents. Suchdocuments, House prosecutors said, would prove that Estrada had amassed P3.3billion in a secret account with the Equitable PCI Bank.47 The rule simply states that"the President of the Senate or the Chief Justice when presiding on the trial may ruleon all questions of evidence including, but not limited to, questions of materiality,relevancy, competency or admissibility of evidence and incidental questions, whichruling shall stand as the judgment of the Senate, unless a Member of the Senate shall askthat a formal vote be taken thereon, in which case it shall be submitted to the Senate for deci.rionqfter one tYmtrary view is expressed ... Rules of evidence and procedures shall be liberallyconstrued." [Italics supplied.] Then-Senator Tatad called for a vote and SenatorEmile seconded the motion. Chief Justice Davide thus had to submit to the vote ofthe senators.48 While the 11 senators who voted to refrain from opening the secondbank envelope may have done so according to party affiliations, they neverthelesshad a logical basis for their vote. The existence of the President's secret bankaccounts was not included in the crimes alleged against the President in the Articlesof Impeachment49 and was thus immaterial and irrelevant.50 Nowhere in saidArticles of Impeachment was there mention of such bank accounts. To thenintroduce evidence regarding secret bank accounts under the charge of graft andcorruption and to require Estrada to answer to such charges are violative of hisconstitutional right to be duly informed of the accusations against him in order that

47 Juliet Javellana & Martin Marfil, Senate votes to '"led P3-B bank e,'denee, PHIL. DAILY INQUIRER,Jan. 17,2001, at AI.

48 Id.49 Dona Pazzibugan, Velarde account: From PI to P3B in 11 months, PHIL. DAILY INQUIRER,Jan. 18, 2001, at

~I Javellana & Marfil, supra note 47. Furthermore, in the Impeachment Complaint against PresidentJoseph Estrada filed by Private Persons, which when transmitted to the Senate comprised the Articles ofImpeachment, as reproduced in IMPEACHl\,lENTQ & A 102 (Carmelo Sison & Florin Hilbay eds., 2000), underthe charge "that respondent committed graft and corrupt practices," the only supporting pieces of evidenceindicated were the followfng:

President Joseph E. Estrada violated the Constitution and stands guilty of graftand corruption when he directly or indirectly requested or received for his personalbenefit P130 Million out of the P200 Million released by Secretary Benjamin Diokno ofthe Department of Budget allocated under R.A. 7171 in violation of Section 3[cJ ofR.A.3019, as may be seen from the affidavit of Luis C. Singson, Provincial Governor oflIocos Sur, dated Sept. 25, 2000 (Annex "B" hereof).

President Joseph E. Estrada violated the Constitution and stands guilty of graftand corruption when he participated directly in the real estate busin;:ss thru a familycontrolled corporation which constructed 36 townhouses in Vermont park, ExecutiveVillage, Antipolo City as shown in the PCIJ in the article on President Estrada's Familyand Financial Interest. He also violated the Anti-Graft Law he is sworn to uphold. Hefiled his Statement of Assets and Liabilities for the year 1999 stating therein that he andhis wife and children ha\'e business interests in only three (3) corporations. ThePresident by that sworn statement also committed perjury and the offense ofunexplained wealth because records show that he and his wife and mistresses and theirchildren have other interests in other companies outside of the three firms listed in hisstatement of Assets and Liabilities (Annex "C" hereof).

he may prepare an adequate defense.51 All the citizenry could do was to try andinfluence the senators to "vote according to their conscience" through mass protests.The Senators, however, possessed the independence to vote whichever way theyreasonably wished. It must be stressed that the impeachment trial is a politico-legalprocess and is a sui generis proceeding; it is not bound by the conventional rulesgoverning criminal, civil and administrative proceedings. 52

Thus, People Power II had no legal basis to remove a president. PeoplePower II was simply a mass protest in accordance with the individual'sconstitutionally protected right to peaceably assemble and air their grievances againsttheir government. 53 "Whilethe people had the right to express their disgust over thevote of the 11 senators, they were obliged to accept the vote because the senatorssimply performed their duties as senator-jurors in the casting of their votes.

Another fundamental difference between People Power I and II is that theformer was the result of 20 years of pent-up outrage against the oppression andexcesses of the Marcos dictatorship, while the latter was more of a blown-up civildisobedience movement centered on the corruption-laden 31-month term of Estradathat just happened to win the support of the military. People Power II lacked thesubjective threat encompassed in the element of "awareness of a problem" thatPeople Power I possessed to such a great extent. As discussed above, it is difficultfor the average person to become truly angry about unjust structures that exist inPhilippine society by simply knowing such structures exist; one must have firsthandexperience with injustice.54 The tyranny of a 20-year dictatorship provided suchfIrsthand experiences which generated deep-seated emotions while Estrada'scorruption-ridden administration did not. Estrada may have been corrupt but hewas never accused of the widespread brutality that Marcos was blamed for.55 Thecivil disobedience campaign of Aquino, aggravated by the assassination of NinoyAquino and the blatantly fraudulent 1986 snap elections provided the impetus forthe people to have the courage to finallyrelease all their pent-up emotions.56

The 1986 EDSA Revolution which served as the coup de grace installingAquino as president of the country involved the efforts of people from all sectors ofsociety. Initially, the Marcos dictatorship enjoyed the support of the businesscommunity, the middle classes and the Church hierarchy. Martial law guaranteedorder and industrial peace which provided the ideal environment for capital

51 CONST. art. III, sec. 14 (2).52 IMPEACHMENTQ & A 3-4 (Carmelo Sison & Florin Hilbay eds., 2000).53 CONST. art. III, sec. 4.54 Licuanan, s'¢ra note 27, at 23.55 The Philippines: Em~/oped, THE ECONOMIST,Jan. 20, 2001, at 28.56 Magno, s'¢ra note 44.

expansion, thereby winning over the business community. No complaints weremade when peasants were dislocated to cultivate agribusiness and when workers'wages were artificially depressed. Businesses "looked the other way" when resistingpeasants were massacred and when militant trade unionists were abducted andmurdered. Suburban communities became complacent as the white-collar classprospered as a result of the expanding economy during the seventies. The bishopsmaking up the Church's conservative hierarchy disapproved of the handful of priestswho identified with the armed revolutionary movement. The Marcos regime hadsecured its urban bases.57

Nonetheless, support for the dictatorship began to dwindle in the eighties.Businessmen were suffering financial losses from the cronyism and capitalism of thegovernment. The middle class was experiencing a tapering off of prosperity and wasbeginning to be shocked by widespread injustices. The Church hierarchy wassimilarly scandalized by the scale of human rights violations. The working class greweven more disenfranchised as incomes fell and unemployment rose.58

Thus, when the civil disobedience movement that eventually would becomeknown as People Power gained momentum, all spectra of society participated incalling for Marcos to make way for Aquino to become president. People Power IInever had such all-encompassing participation. As mentioned earlier, unlike Marcos,Estrada clearly still retained his popular mandate, as evidenced by "People PowerIII," the show of support for the deposed president at EDSA which took placeshortly after Arroyo became president. While students, professionals and membersof the clergy were present at EDSA during People Power II, very few members ofthe lower-class stratum were there. One homeless individual in the North Trianglearea in Quezon City provided a glimpse into the thinking of the masses. He sharedthat Estrada was "the only President who visited us, the urban poor." He added,"We appreciated Erap (Estrada's moniker) for what he thought of us and tried togive us."59 Estrada was simply unfortunate that the minority who disliked him wascomposed of the elite, the business community and the clergy. He had never beenpopular with the wealthy; they were never comfortable with a president who boastedof his middle-class origins and who was proud of his "capacious" appetites. Theyconsidered him an "uncoutl1 impostor" in the palace who was mentally ill-equippedto rule the country. And true enough, Estrada's brief term as president spelledeconomic disaster for the country: the Manila Stock Exchange plummeted 6% andthe peso traded at an all-time low of 55.75 to the dollar.60 These views, however,were limited to the minuscule, economically privileged sector of Philippine society.

57 Id at 11.58 Id.5? Burton, Jupra note 7, at 18.60 Id.

Thus, they did not bear much weight in the presidential elections against themultitudes of impoverished masses who viewed Estrada as a hero of the poor, as theonly President who truly cared for their sorrowful plight. Manila's elite thus tookadvantage of Ilocos Governor Chavit Singson's political bombshells linking Estradato illegal gambling kickbacks to boot out an incompetent leader they never voted forin the first place. Unfortunately, this is contrary to the essence of a democracy. AsLicuanan pointed out, so-called "people's power" in the hands of the powerful canonly be considered "bullying." As such, in addition to the element of awareness of aproblem, the elements of number and initial powerlessness were lacking in PeoplePower II.61

Lasdy, People Power II was not a necessity when compared to PeoplePower I. Elections, which were scheduled four months after Estrada's ouster, couldhave been used to select a more principled Senate to check on the president'sexcesses. And if all else failed, Estrada's term would have ended in 2004.62 Not onlythat, in a last-ditch attempt to preserve his hold on power, Estrada announced in atelevised statement that he would be holding snap presidential elections concurrentwith the local and congressional May 2001 elections, wherein he would not run andthe results of which he would respect.63 Constitutional obstacles to a snappresidential election aside, it was clear that Estrada's rule would have ended in duetime, in on~ way or another. In contrast, the Marcos regime had no expiration date,and as such there was no other way to boot him out.64

People Power per se, it must be stressed, is not harmful to a democracy; infact, under extreme circumstances, it may be the only tool available to enable thesurvival of a democracy. As exemplified by the 1986 EDSA Revolution, PeoplePower may be a nation's only recourse to end the tyrannical rule of a dictator and tousher in a new age of democracy. People Power, however, must not be abused. It isonly to be sanctioned as a mode of replacing leaders in a democracy in the select fewinstances when the legal institutions in place have been subverted to such an extentthat they can no longer be relied upon to uphold the common good.

As stressed earlier, People Power was not necessary to oust Estrada. Evenwith the apparent failure of the impeachment process to remove Estrada from

61 Licuanan, supra note 27, at 24.62 Rigoberto Tiglao, A Better People Power, Yes Bitt ... , PHIL. DAILY INQUIRER, Jan. 21, 2001, at A7.63 People Power o,.,romeJ, PHIL. DAILY INQUIRER, Jan. 19, 2001, http://www.inq7.net/issues/

jan2001 /jan 19/ index.html.64 Tiglao, Jltpra note 62.

office, other legal processes promised to limit his reign as president. He did notattempt to perpetuate himself in power as Marcos did; his term would have ended in2004 whether he liked it or not. It could be argued that the failure of theimpeachment process was not due to inherent weaknesses of the system, but rather,was due to the haste with which the impeachment complaint was filed and eventuallytransmitted to the Senate. With more deliberation, the impeachment complaintcould have been more comprehensive as regards the pieces of evidence supportingthe charges, and thus the infamous Senate vote would not have taken place.

Thus, when former Presidents Ramos and Aquino, and Cardinal Sin, keyfigures in People Power I, urged Filipinos to essentially disregard the Constitution,not because it was flawed, but because it wasn't getting rid of Estrada fast enough,65the sovereign will was subverted.66 It is the opinion of some that such an ambivalentattitude towards the Constitution, adhering to it and disregarding it whenever it suitsone's purpose, was developed when Aquino "tore up" the 1973 Constitution whenshe ousted Marcos, claiming that he had rewritten it too many times to legalize hisdictatorship. Such an act was said to have planted the «seeds of constitutionaldisregard."67 No matter how noble the end of removing Estrada from power mayhave been, unconstitutional means of doing so will never be justified. And it mustbe emphasized that the nobility of doing so is largely a matter of opinion, and in ademocracy which was responsible for installing Estrada as president with the largestvote total in Philippine history,68 arguing for such nobility would be a seeminglyimpossible task.

Indeed, the Supreme Court itself has stressed that "adoption as agovernment policy of the theOlY of 'the end justifies the means' brushing asideconstitutional and legal restraints, must be rejected, lest we end up with the end offreedom."w A democracy that has no respect for its own Constitution is bound tobe unstable for, as expounded upon in Part I, the very essence of such a form ofgovernment is its adherence to constitutionalism and the rule of law. \Vhile aConstitution is a "pulsing, living law attuned to the heartbeat of a nation,"70 it mustattain a semblance of permanency in order to be an instrument effective at fulfillingthe elements of the rule of law. Particular procedures for amendment and revisionwere laid out in the Constitution to prevent arbitrary changes or subversions of itsprovisions. The methods of initiative and referendum71 are in place to determine

65 Anthony Spaeth, GopJ. f/:"eDId it Again, TIME,Jan. 29, 2001, at 22.66 Cortes, Jltpm note 9, at 347.(.7 Spaeth, Jltpra note 65.'8 Larmer & Meyer, Jupra note 4; Overholt, Jllpra note 4.(" Gonzales v. Hechanova, et aI., G.R. No. L-21897, Oct. 22, 1963.7" ISAGANI CRUZ, PHILIPPINE POLI11CAL LAW 13 (1998).71 CONS"!'. art. XVII; Anna Maria Abad & Evalyn Ursua, Initiali," and Reftrendllm: An E.....-perimentational

People EmpOlvermettl, 63 PIlII.. LJ 382-383 (1988). Pursuant to the constitutional mandate, Congress enacted

whether majority of the constituency agrees with the proposed changes, in tune withthe democratic nature of the instrument. These provisions are meant to block anyarbitrary attempts by a select few to change the Constitution in accordance with theirown needs and desires. Legitimizing any subversions of the Constitution, such aswhat the Supreme Court did in declaring the Arroyo administration as legitimate(and arguably what the Supreme Court did in legitimizing the Aquino administrationas a dejure government72), will be, and already is being,73interpreted as an approvedway of violating the Constitution. If the Constitution, as the fundamental law of theland, can be legitimately violated, what is there to prevent the violation of other lawswhich are merely subordinate to the Constitution? Strict enforcement of theConstitution is a must if our nation is to become a true constitutional democracy inpractice and not simply one in name.

The problem with the assumption of Pres. Arroyo to office is that it did notabide by the process indicated in the 1987 Constitution. Article VII, section 8 of theConstitution indicates the four ways by which Arroyo, as vice president, could haveassumed the presidency: death, permanent disability, removal from office orresignation of President Estrada. Following the rules of statutory construction, it isapparent that the four modes of succession of the vice president to the presidencyare exclusive. The only direct mode of removing the president from office is

R.A. 6735 entitled "An Act Providing for a System of Initiative and Referendum and Appropriating FundsTherefor." R.A. 6735 defines initiative as "the power of the people to propose amendments to theConstitution or to propose and enact legislations through an election called for the purpose. There are threesystems of initiative under the Act:

(1) Initiative on the Constitution which refers to a petition proposingamendments to the Constitution;

(2) Initiative on statutes which refers to a petition proposing to enact a nationallegislation; and

(3) Initiative on local legislation which refers to a petition proposing to enact aregional, provincial, city, mUnicipal, or barangay law, resolution or ordinance.

The Act also provides for an indirect iniliali,~ which is the exercise of initiative through a propositionsent to the Congress or the local legislativebody for action.

Referendum, on the other hand, is "the power of the dectorate to approve or reject a legislationthrough an deetion called for the purpose." Its subject may either be an act passed by the Congress, or a law,resolution or ordinance enacted by regional assemblies and local legislative bodies. The submission of a law toa referendum is by petition of the people. Approval by the people in a referendum is not required under R.A.6735 for the effectivity of laws. In effect, the power of referendum is only a power to reject laws.

72 Rose Marie King, The Leg.J Status 0/ the Aquino Gm:errmmt: Fount:IAtims jar Legitimacy, 61 PHIL. L.J. 137(1986); AgnesMaranan, TheDiJenmaifLegitirrw:y: A T=-Pl.weR~ 61 PHIL. L.J. 154 (1986). See note 39.

7l Estrada alJiesmass at EDSA, PHILIPPINE DAll..Y INQUIRER, April 27, 2001, http://www.inq7.net/nat12001/ apr127 /textlnat.

through the process of impeachment.?4 Although the country was initially hopefulthat the near-miraculous initiation of the impeachment trial would be "a greatadvance in maturity for the country's democracy,"75it became clear that Estrada stillhad enough friends in the Senate to prevent his conviction. Thus, thousands ofpeople took to the streets to demand the resignation of the president.

In spite of mounting pressure for hinl to resign, Estrada stubbornly andemphatically repeated his refusal to step down. Indeed, the press statement heissued upon vacating the palace simply indicated that although he had "strong andserious doubts" about the "legality and constitutionality" of Arroyo's proclamationas president, he was leaving Malacanang since he did not want "to be a factor thatwill prevent the restoration of unity and order in our civil society."76 Nowhere insuch press statement did he indicate that he intended to resign. In addition, Estradaclaims that he sent a letter dated January 20, 2001 to Senate President Pimentel andHouse Speaker Fuentebella indicating that he was taking a temporary leave ofabsence due to his inability to govern, thereby rendering Arroyo an ActingPresident.?7 For an act to be considered a resignation, there must be a clear intent toresign and such intent must be accompanied by acts of relinquishment.?8 Estrada isadamant that he did not resign for he never formally did SO.?9Even the SupremeCourt admits that Estrada did not write any formal letter of resignation beforeleaving the presidential palace on the day of Arroyo's oath-taking as president.8o

The Court, however, in what appeared to be a desperate attempt atlegitimizing the Arroyo admirllstration, rationalized that Estrada could still bedeemed to have resigned by virtue of the "totality of prior, contemporaneous andposterior facts and circumstantial evidence bearing a material relevance on theissue."81 The Court's reasoning could have been plausible had it been able toproperly establish the evidence supporting this conclusion. All that the Courtpresented were newspaper articles and Edgardo Angara's diary which supposedlyopened an "authoritative window on the state of mind" of Estrada.82 It is highlydoubtful whether such secondary sources of evidence may be the sole basis of the

74 CONST. art. XII, sec. 2.75 Deidre Sheehan, Mor< Prayer to the Powed'u!, FAR EASTERNECONOMICREVIEW,Feb. 1,2001, at 18.76 Estrada v. Desierto, G.R. Nos. 146710-15, 2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No.

146738,2 March 2001; New pflJSident Vows lJaderrhip by Example, PHIL. DAILYINQUIRER,Jan. 21, 2001, at AI.77 !d.78 Gonzales v. Hernandez, G.R. No. L-15482, 2 SCRA 228 (1961), dted in Estrada v. Desierto, G.R. Nos.

146710-15,2 March 2001; Estrada v. Macapagal-Arroyo, C.R. No. 146738,2 March 2001.79 Showdowns i/1South-EO-xt Asi", THE ECONOMIST,.Ian. 27,2001, at 16.8" Estrada v. Desierto, G.R. Nos. 146710-15, 2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No.

146738,2 March 2001.81 [d.82 [d.

resolution of such a crucial issue.83 Angara never appeared in court attesting to theauthenticity of his diary which was published in the Philippine DailY Inquirer nor werecopies of the diary ever submitted as evidence by the complainants. Moreover, theSupreme Court has repeatedly held that it is not a trier of facts but of law.84

It is for the lower courts to deal with questions of facts; but in the case ofEstrada, the Supreme Court acted as a trial court, beyond its original jurisdiction,85inconsidering the "totality of circumstances" of Estrada's acts as indicative of hisintention to resign as president.

Neither was Estrada permanently disabled, for Estrada had no healthproblems nor mental illnesses86to speak of which would prevent him from carryingout his duties as president. Lastly, he was very much alive when Arroyo took over aspresident.

The highly questionable decision of the Supreme Court notwithstanding, itis evident from the above discussion that none of the four preconditions for thesuccession of the vice president were present. Instead, seeing that they could nolonger count on the political institutions in place to immediately replace Estrada,people spilled out onto the streets counting on mere moral suasion to force Estradato resign. These people were hoping to replicate the People Power that hadoccurred back in 1986, peacefully yet forcefully evicting Marcos and his family fromMalacanang. And to everyone's surprise and many people's jubilation, it worked.The point of no return for Estrada came when Armed Forces of the Philippines(AFP) Chief General Reyes and Defense Secretary Mercado joined the crowd atEDSA in the afternoon of Friday, January 19, 2001 while Philippine National Police(PNP) Head General Lacson likewise indicated that the police would be protectingthe crowd at EDSA.87 With no military to back up his orders, Estrada no longerpossessed any authority. Indeed, military might is a vital component of tITe

83 RULESOF COURT,Rule 132, sec. 20. Proof of private document. - Before any private documentoffered as authentic is received in evidence, its due execution and authenticity must be proved either:

a) By anyone who saw the document executed or written; orb) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

RULESOF COURT, Rule 132, sec. 21. When evidence by authenticity of private document notnecessary. - Where a private document is more than thirty years old, is produced from a custody in which itwould naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, noother evidence of its authenticity need be given.

84 CRUZ, supra note 70, at 275. The Supreme Court is guaranteed appellate jurisdiction where the caseinvolves "onlY an error or question of law,n

85 CONST. art. VIII, sec. 5 (1).86 CRUZ,.rupra note 70, at 193.87 Herrera et aI., .rupra note 3.

sovereign nature of governments. 88 Thus, Estrada had no choice but to leaveMalacaiiang.

The role of the military in the ouster of Estrada raised yet another questionregarding the legitimacy of the Arroyo administration. Due to the vital role that themilitary played in ousting Estrada, many foreign journalists have described PeoplePower II as a "de facto military coup"89 rather than a peaceful revolution that thefIrst EDSA Revolution embodied. Strict adherence to the Constitution would nothave allowed the AFP and the PNP to have so capriciously and whimsicallywithdrawn support from Estrada. As president, he was commander-in-chief of allarmed forces of the Philippines90 and he likewise possessed authority over thePNP.91 The AFP is sworn to uphold and defend the Constitution92 and is notsupposed to engage directly or indirectly in any partisan political activity, except tovote.93 Likewise, the supremacy of civilian over military authority94entailed that theAFP was subordinate to the President as long as he has not died, becomepermanently disabled, resigned or been impeached. While the military is theauthority on military strategy, tactics and logistics, it is not the competent judge oflegitimacy of governments.95 If military support is the determining factor in powerstruggles in Philippine politics, then we would have no right to call ourselves ademocracy; rather, our system of government would be more appropriately termed amilitary junta.

Article II, section 1 of the 1987 Constitution, which states that "sovereigntyresides in the people and all government authority emanates from them," wasconstantly used as a justifIcation for the series of mass protests which led toEstrada's replacement as president. This reasoning indicated that even if a leaderwas rightfully elected, he could be removed from his position through whatever

88 Perfecto Femandez, Understanding Law as aSocial Phenomelton, 65 PHIL. LJ. 40-41 (1990).89 Overholt, supra note 4.90 CONST. art. VII, sec. 18.91 CONST. art. XVI, sec. 6.92 CONST. art. XVI, sec. 5, par. 1.93 CONST. art. XVI, sec. 5, par. 3.94 CONST. art. II, sec. 3.95 Carolina Hernandez, The ''Military Mind'~· Its Implications for Civil-Military &lations in the Philippines, 23ro

Annual Convention of the Psychological Association of the Philippines (Aug. 5-7, 1986), at 60 (transcriptavailable in the University of the Philippines Main Library).

means available, even if such means were in contravention of the removal processesenumerated in the Constitution.

A written constitution is said to represent the supreme will of the people.Having promulgated it, the people themselves are bound by its limitations.96 If theyfeel that the provisions of the Constitution are inadequate, there are acceptable waysof amending or revising the instrument97 rather than going out onto the streets toskirt around its limitations simply because it wasn't getting rid of Estrada fastenough.98

In addition, the use of the term "the people" with regard to People PowerII was never fully elucidated. Cardinal Sin had repeatedly declared that Estrada hadlost the "moral ascendancy" to govern by virtue of his womanizing, gambling,corruption and cronyism and thus "the people" demanded that he step down.99

Indeed, a "bad national habit" of replacing leaders through the parliament of thestreets had been formed.1oo A precedent was set that if more than a million peoplewere amassed at EDSA and the military was won over, a change in leadership couldlegally be effected. In such a situation, one could always reason out that theincumbent leader resigned as ascertained from the "totality of circumstances"IOIsurrounding the situation. In fact, the supporters of Estrada used this argument injustifying "People Power III," the amassing of Estrada supporters at EDSA to callfor the return of their idol into power. Senator Miriam Defensor Santiagocommented that People Power III would have to be legitimized by the SupremeCourt for "what is sauce for the goose is sauce for the gander ... What was decided(by the Supreme Court) under one set of facts must be repeated in a case presentingthe same set of facts."lo2

Moreover, the show of support for the deposed president tagged as "PeoplePower III" heaped even more doubt on the assertion that Estrada had lost hiselectoral mandate and affirmed the proposition that People Power II was amachination of the elite and the middle class.103 As discussed earlier, the more likelyexplanation is that the elite and the middle class, who never wanted him as presidentin the first place, took advantage of the situation to place a more competent person

96 Cortes, supra note 9, at 339.97 CONST. art. :X'VII.98 Spaeth, .fupra note 65.99 Larmer & Meyer, sHpra note 4, at 11.100 Spaeth, .rupra note 65.101 Estrada v. Desierto, G.R. Nos. 146710-15, 2 March 2001; Estrada v. Macapagal-Arroyo, G.R. No.

146738, 2 March 2001.102 Estrada allies ma.r.rat EDSA, .fupra note 73.103 Sheehan, .rupra note 75, at 16.

in power.I04 These were the "people" referred to in People Power II, not themajority of the voting population of the country. Estrada clearly retained hiselectoral mandate among the poor masses, who comprise more than seventy percentof the population. Indeed, the notion of "the people" has been said to be a "politicalfiction designed to rationalize a political power grab by some particular segment ofsociety,"IOS"too broad a term," serving as a "cloak" for revolutionaries who wish todestroy the constitution and the constituent power.I06 Moreover, "the people" hasbeen referred to as a "constitutional anachronism."I07 Justice Brennan has constantlywarned against this "unabashed enshrinement of majority will" and "blind faith" indemocracy.IOS

Another question which continues to puzzle many legal minds is howArroyo was sworn in as president. She could only have been sworn in as president ifthere was a vacancy. The Supreme Court, in a mere administrative matter,I09effectively declared that there was a vacancy in the presidency by authorizing ChiefJustice Davide to administer the oath of office to Arroyo. What is noteworthy aboutthis administrative matter is its pronouncement that "this resolution is withoutprejudice to the disposition of any justiciable case which may be filed by a properparty." This could be interpreted as an implicit acknowledgment that suchresolution was inherently problematic and would thus spark much controversy whichshould be threshed out in court. Nevertheless, those who tried to have the Courttackle such issues failed due to various technicalities.110

104 Burton, supm note 7, at 18.105 ALTMAN,supm note 11, at 7.106 FRIEDRICH, supm note 20, at 143.107 David Williams, The Militia Moument, 81 CORNELLL.R. 879, 952 (1996).108 Lino Graglia, It's Not Constitutionalism, It's Judicial Activism, 19 HARVARDJ. L. & PUB. POL'y 293 (1996).109 A.M. No. 01-1-05-SC cited in Estrada v. Desierto, G.R. Nos. 146710-15, 2 March 2001; Estrada v.

Macapagal-Arroyo, G.R. No. 146738,2 March 2001.110 Joint Resolution, Jaime N. Soriano et al. v. Joseph Ejercito Estrada, G.R. No. 146528; In the Matter of

the Declaration of Her Excellency, Gloria Macapagal-Arroyo as the Constitutionally Instituted 14'" President ofthe Republic of the Philippines, G.R. No. 146549; Concerned Citizens for Effective and ResponsibleGovernment, Inc., et al., Petitioners, G.R. No. 146579, and Oliver O. Lozano v. Gloria Macapagal-Arroyo,G.R. 146631, 6 Feb. 2001. The Court dismissed the petitions for three reasons. One, the Court pointed outthat the four petitions were for declaratory relief, over which it had no original jurisdiction. Second, thepetitioners were deemed to have no legal standing to ftle the suits. They did not show any "direct and personalinjury as a result of President Arroyo's oath-taking." Petitioner Lozano's alleged interest as a taxpayer wasconsidered "far too detached from the ultimate objective of his Petition, ie., to nullify the oath-taking ofArroyo and declare Estrada as 'President-on-leave.''' Lastly, none of the petitions could be treated as actionsfor quo warranto as such may only be commenced by (1) the Solicitor General, (2) a public prosecutor, or (3) aperson claiming to be entitled to a public offtce or position usurped or unlawfully held or exercised by another.The petitioners were not among these three categories of persons qualifted to ftle an action for quo warranto.

The ftrst defect of the administrative matrer is that the Supreme Court isnot the proper party to determine whether there was a vacancy in the presidency.Such a decision would involve a purely political question, that is, a question which,"under the Constitution, is to be decided by the people in their sovereign capacity; orin regard to which full discretionary authority has been delegated to the legislative orexecutive branch of the government." It is concerned with issues dependent uponthe wisdom, not legality, of a particular measure.111 The judiciary, not having beenelected by the people but simply appointed by the president, is not in a position todetermine the existence of a vacuum in leadership. In fact, it has been pointed outthat judicial review constitutes control by an unrepresentative minority of an electedmajority, an act which may seriously weaken the democratic process.112 This woulddeftnitely be a question for the political branches of government to decide. \X7hil.ethe power of judicial review has been described as a "political weapon" wielded bythe Supreme Court,113 the authority to determine the vacancy of the presidency isobviously beyond such power, no matter how expanded such power of review hasbecome. Furthermore, a perusal of article VII, section 11 of the 1987 Constitutionwould indicate that the determination of the President's incapacity can come onlyfrom three sources: the President himself, his Cabinet and Congress. This bolstersthe contention that the judiciary has no role to play in this determination.

In addition, the court is not a dynamic entity; it can only act if there is apetition ftled before it by a proper party.114 Arroyo wrote a letter dated January 20,2001 to the Chief Justice requesting that she be sworn in as the president,115and thatvery same day she administered her oath. Such a letter can hardly be considered aproper petition.

Assuming arguendo that the court did have the authority to resolve the issue,such resolution could not simply have been treated as an administrative matter.Hearings would have to be held and the requirements of procedural due process injudicial proceedings would have to be followed. Judicial due process entails that:

(1) There must be an impartial court or tribunal clothed with judicial powerto hear and determine the matter before it;

(2) Jurisdiction must be lawfully acquired over the person of the defendantand over the property which is the subject matter of the proceeding;

(3) The defendant must be given an opportunity to be heard; and

IIITaiiada v. Cuenco, 100Phil. 1101,dtaiin CRuZ, supm note 70, at 82 (1998).112 Sison, supra note 15,at 311.113 Pacifico Agabin, The~ifJudicitJlRetit!wOzr EXllCJltiwAeticn: TheSupmneCatrtand Social~ 64

PHIL.LJ. 189, 190-191(1989).IH CRuz, supm note 70, at 257.m AM. No. 01·1·05·SC dtai in Estrada v. Desierto, G.R. Nos. 146710-15,2 March 2001; Estrada v.

Macapagal-Arroyo,G.R. No. 146738,2March 2001.

The lack of judicial power of the Supreme Court to decide the existence of avacancy in the presidency has already been expounded upon. The court did notacquire jurisdiction over Estrada for jurisdiction over a defendant is acquired by acourt by his voluntary appearance or through service of summons.ll7 No suchappearance was made nor was any summons served upon Estrada. Estrada was notgiven any opportunity to defend his presidency. With no hearing, judgement couldnot have been lawfully rendered

The Court likewise forwarded the legal maxim salus populi est suprrma lex, thatis, the welfare of the people is the supreme law, in justifying the administration of theoath of office to Arroyo. This principle is inappropriate for the particular situation.A perusal of applicable jurisprudence on the matter will readily indicate that thisprinciple was used in justifying the exercise of the police power of the state ratherthan rationalizing the interference of the judici:uy in political matters.ttS To applythis reasoning to issues aside from police power would set a dangerous precedent.The Supreme Court may then interfere in practically any controversy with this legalmaxim as their shield And since it is the highest court in the land, no other body inthe government may review their decisions, no matter how erroneous these decisionsmaybe.

It is thus evident that Arroyo's assumption of the presidency was extra-constitutional, and ultimately unconstitutional.ll9

The thirteenth President of the Republic of the Philippines Joseph EjercitoEstrada may have indeed been unfit to rule. The millions of people who protested inEDSA last Janu:uy 17 to 19, 2001, the author included, possessed a constitutionallyprotected right to be there and to express their indignation at the Senate vote whichseemed to guarantee Estrada's acquittal in his impeachment trial. While the countrymay have been entitled to short-term jubilation at his removal from power, it willhave to face long-term democratic weakness and political instability. "People Power

116 CRuz, supra note 70, at 106.117 [d.118 Calalang v. Williams, GR No. 47800, 70 Phil. 726 (1940); In re Edillon, AC. No. 1928 (1978);

Villacorta v. Bernardo, GR No. L-31429, 143 SCRA 480 (1986); and Binay, et al. v. Domingo, et al., GR No.92389,201 SCRA 508 (1991), to name a few.

119 Agnes Maranan, 1beDilenmarfLegitimtcy:A T'lW-JmseRe5Obaim, 61 PHIL. L.J. 154 (1986). Sre note 39.The mere fact that the Aquino administration asswned power through non-constitutional means does notimply immediate abrogation of the fundamental law.

III" came as a very early warning signal of the dire events that may take place as aresult of the grave error that had been committed during People Power II.

'While People Power I will forever be praised as a triumph of democracyover authoritarianism, "as close as the twentieth century has come to the storming ofthe Bastille,"120People Power II opened the Pandora's box of "constitutionaldisregard"121leading to "People Power III". It should be remembered that "publicrespect for the law is essential to preserving the rule of the law."122 "People PowerIII" and any succeeding uprisings of such scale should serve as very potentreminders of how vital it is for a democracy to abide by constitutionalism and therule of law.

120 PEOPLE POWER, THE PHILIPPINE REVOLUTION OF 1986: AN EYEWI1NESS HISTORY outside backcover (1986).

121 Spaeth, supra note 65.122 ALTMAN, supra note 11, at 23.

THE STATE OF REBELLION ANDTHE RULE OF LAw

EDSA III was one of the most harrowing events in modern Philippinehistory. Class lines were apparently drawn, as the months-old Arroyo administrationseemed to totter towards its downfall. Now that the street actions have beenquelled and the threat to government stability thwarted, many questions continue tolinger as to the legality of government actions done during EDSA III.

In this article Atty. Daniel C. Gutierrez, counsel for Sen. Gringo Honasanin the case of Honasan v. De Villa, asserts that the Supreme Court chose to hidebehind the doctrine of "moot and academic" cases rather than to decide squarely onthe constitutionality of Proclamation No. 38 and General Order No.1 and thesubsequent acts under its authority. The article points to the lack of legal basis forthe term "state-of-rebellion" in the 1987 Constitution. It also emphasizes that theproclamation of a "state-of-rebellion" is contrary to the "Rule of Law" doctrinesince it amounts to an action to suppress "lawless violence" that is not within thepowers of the President, as mandated by law.

Atty. Gutierrez also theorizes that Proclamation No. 38 and General OrderNo.1, taken together, were in essence, a declaration of martial law. However, duringthe effectivity of these orders, the writer argues that Constitutional rights wereviolated, including the right against illegal searches and seizures and the freedom ofspeech. All these issues were raised in Honasan v. De Villa, but were left undecided bythe Supreme Court with the dismissal of the case on the ground of mootness.

THE STATE OF REBELLIONAND THE RULE OF LAw

About 500 years before the birth of Christ, Heraclitus of Ephesus in AsiaMinor stated that the major problem of society is how to balance dlat degree ofliberty without which law becomes tyranny with that degree of law without whichliberty becomes license.1

Recent developments in our country are quite alarming. In the balancingprocess between liberty and the maintenance of order, the rule of law has beenfrenetically abandoned. Under Heraclitus' theory, liberty gave way to methods usedonly under tyrannical rule.

Last May 1, 2001, the sight of a ragtag multitude of poor people exercisingtheir constitutional rights of expression, assembly, and petition led to a presidentialdeclaration of a state of rebellion. Unfortunately, this declaration was without anyfactual or legal basis. Nowhere in the Constitution is there a provision governing thesituation or condition of a "state of rebellion." TIlere is a "state of martial law."2The provision, however, exists not as a grant of power nor a status calling for theexercise of power but as a limitation stating what the President may not do in timesof actual invasion or rebellion. Any execution of the laws, preservation of publicorder, or suppression of violence from foreign or domestic enemies during arebellion must be within the operation of the Constitution, the functioning oflegislative assemblies, and the exercise of jurisdiction by civil courts.3 TIus is whatthe Constitution requires.

The author is the legal counsel of Senator Gregorio B. Honasan in the state of rebellion cases. t\graduate of UP Law Class 1983, he is a practicing lawyer and a professor at the Arellano University School ofLaw. This article was originally intended for a lecture series sponsored on the subject by the U.P. College ofLaw and Law Student Government, featuring speakers with varied points of view.

1 VANDERRILT,THE DOCTRINEor SEPARAll0!'J OF POWERSAND ITSPRESENTDAY SIGNIFICANCE37.2 CONST. art. VII, sec. 18, par. 4.3 See definition of martial law during a "state of war" in the Prize cases, 2 Black 635, 17 L. Ed. 459 (1863);

Ex Parte Milligan, 4 Wallace 2, 18 L. Ed. 281 (1866); and Duncan v. Kahanamoku, 327 U.S. 304,90 L.Ed. 688(1946) and during actual rebellion in Lansang v. Garcia, 42 SCRA 448 (1971); People v. Ferrer, 48 SCRA 382(1972); People v. Ferrer, 56 SCRA 793 (1974); Aquino, Jr. v. Ponce Enrile, 59 SCRA 183 (1974); Aquino,Jr. v.

The Constitution provides for actual invasion or rebellion.4 The declarationof a state of rebellion by the President, not specified in the Constitution, and thesubsequent exercise of powers intended only for actual rebellion, have no legaljustification. At the very least, they can probably be understood. The formerincumbent, President Joseph E. Estrada, had just been ousted from office. A newpresident was recently installed not by national elections but by the "people power"gathering called EDSA II, followed by claims of constitutional succession challengedbefore the Supreme Court. The new administration was apparently still nervous anduncertain on the compelling force of its exercise of powers, the backing of militaryand police forces or its acceptance by the country as a whole. What is more difficultto comprehend is the use by the Supreme Court of a technique of avoidance and thedisregard of a judicial power, which is specifically conferred by an amendment in the1987 Constitution. 5

Before proceeding with the implications of the suspension of the Bill ofRights during a so-called state of rebellion, some basic premises must first bediscussed.

Foremost is the rule of law. The Constitution is the supreme law of theland; all acts of government must conform to its mandates and all governmentautll0rity is subject to its limitations. In the landmark case of Ex parte Milligan,6 theU.S. Supreme Court declared, "The Constitution (of the United States) is a law forrulers and people, equally in war and peace, and covers with tlle shield of itsprotection all classes of men, at all times, and under all circumstances."

Moreover, the Court stated that "no doctrine involving more per11lciousconsequences, was ever invented by the wit of man than that its provisions can besuspended during any of the great exigencies of government." The exigency referredto was the American Civil War. It was the gravest threat ever faced by the UnitedStates where hundreds of thousands of soldiers on each side fought fierce and deadlybattles for four years before it became clear that the North would prevail over theSOUtll.

The same court ruled that the theory of necessity upon which tlle doctrineof suspension of liberty was based is false. The Court emphasized that within thebounds of the Constitution, the Government has all the powers necessary to

Commission on Elections, 62 SCRA 275 (1975); ''''quino, Jr. v. Military Commission No.2, 63 SCRA 546(1975).

4 CONST. art. VII, sec. 18.5 CONST.art. VIII, see. 1, par. 2." 4 Wallace 2 (1866), 71 U.S. 2, 18 L. Ed. 281.

preserve its existence. Such a doctrine of suspension leads to anarchy or despotismaccording to the court.

The Philippine Supreme Court waxed equally lyrical in Araneta IJ. Dinglasan7

when it declared:

Never in the history of the United States, the basic features of whoseConstitution have been copied in ours, have the specific functions of thelegislative branch of enacting laws been surrendered to anotherdepartment ... not even when that Republic was fighting a total war orwhen it was engaged in a life and death struggle to preserve the Union.The truth is that, under our concept of constitutional government, intimes of extreme perils more than in normal circumstances, the variousbranches, executive, legislative, and judicial, given the ability to act, arecalled upon to perform the duties and discharge the functions committedto them respectively.8

Under Proclamation No. 38 dated May 1, 2001, President Gloria MacapagalArroyo confIrmed the existence of "an actual and on-going rebellion" but which shefound as existing only in Metro Manila.

It is, however, clear that there was no rebellion in Metro Manila on the dayof said proclamation. This declaration of a state of rebellion had no factual basis.Reference is hereby made to the decision penned by the late Chief Justice RobertoConcepcion in the case of Teodosio Lansang IJ. Brigadier General Eduardo M. Garcia andeight other petitions consolidated with it,9 where the factual foundations for theexistence of a state of rebellion are discussed in detail. Lansang IJ. Garcia found "nodoubt about the existence of a sizeable group of men who have publicly risen inarms to overthrow the Government and have thus been and still are engaged inrebellion ... "10 Comparing Lansang IJ. Garcia with Honasan IJ. De ViI/a, and thesimilar cases fued by Panftlo Lacson, Miriam Defensor-Santiago and others, theformer had clear factual bases for the existence of a state of rebellion which wereabsent in the latter cases.11

7 84 Phil. 368 (1949).'1d at 382-383.9 Lansang \'. Garcia, G.R. No. L-33964; Arienda v. Secretary, G.R. No. J~33965; David Y. Garcia, G.R.

No. L-39993; Prudente v. Yan, G.R. No. L-39982; De Lara Y. Garcia, G.R. No. L-34004; Rimando v. Garcia,G.R. No. L-34D13; Rabago v. Garcia, G.R. No. L-34D39; OretaJr. v. Garcia, G.R. No. L-34265; and Olivar v.Garcia, G.R. No. L-34339, 42 SeRA 448 (1971).

10 Jd. at 478.11 Lacson v. Perez, et aI., G.R. No. 147780; Defensor-Santiago v. Reyes, G.R. No. 144781; Lumbao v.

Perez, et aI., G.R. No. 144799; Laban ng Demokratikong Pilipino v. Dept. of Justice, G.R. No. 147810, May 10,2001; Honasan v. De Villa, G.R. No. 147818, May 10, 2001.

As stated in the dissenting opinion of Justice Sandoval-Gutierrez in theconsolidated casesl2 challenging Proclamation No. 38 and General Order No.1, theweapons used were rocks, sticks, and stones picked up along the way to MalacaiiangPalace. These are hardly the armaments used in a rebellion. There were no firearms,grenades, or mortars, not even bolos or bows and arrows. There was no organizedgroup - no Politburo, no Kilusang Mayo Uno (KMU), no Moro Islamic LiberationFront (MILF), no hierarchy of the Roman Catholic Church, nor any otherorganization - to lead the so-called rebels. EDSA III, as it is colloquially called, wasa spontaneous gathering of disillusioned and angry people without any vastmovement of men and without a complex net of intrigues and plots. The goodJustice stated that what happened near Malacaiiang on May 1, 2001 was merely a riot,a mob, or even a tumultuous uprising, but certainly not a rebellion.

Rebellion is a well-defined crime in the Revised Penal Code13 and 1Il

decisions of the Supreme Court.

Under existing jurisprudence, the acts and utterances in relation to EDSAIII of Senators Gregorio Honasan, Panfllo Lacson, Miriam Defensor-Santiago, JuanPonce Enrile, Ernesto Maceda and other petitioners do not amount to rebellion.For one thing, the Senators were exercising their right to freedom of expression andspeaking as members of the political opposition.

One has to go back to the 1920s and 1930s for cases on sedition but notrebellion for similar utterances. In People vs. PereiJ the accused shouted at a smallgathering, "Filipinos like myself should use bolos for cutting off (Governor GeneralLeonard) Wood's head for having recommended a bad thing for the Filipinos, for hekilled our independence."14 Perez was convicted under the Treason and Sedition Actduring the colonial period.

Evangelista v. Earnshaw,ls People v. Feleo16 and People v. Nabong17 involvedleaders of the Communist Party who were found guilty of speech with seditiousintent and effect. Nabong stated that the Philippine Constabulary seized their flagand shot innocent women. He then declared that "we ought to be united tosuppress that abuse. Overthrow the present government and establish our own

12 !d.13 Arts. 134, 134-a and 135.1. 45 Phil. 599 (1923).15 57 Phil. 255 (1932).1657 Phil. 451 (1932).17 57 Phil. 455 (1932). Other cases are People v. Capadocia, 57 Phil. 364 (1932); People v. Evangelista, 57

Phil. 354 (1934); and People v. Evangelista, 57 Phil. 372 (1932), 57 Phil. 456 (1932).

government, the government of the poor. Use your whips so that there may bemarks on their sides."18

Nabong spoke at a necrological service for the deceased head of theCommunist Party. Another speaker, Feleo, urged the audience at the necrologicalservices to imitate the French soldiers who, instead of pointing their arms at theenemies, decided to shoot at their chiefs.

The 1930's Communist Party leaders were charged with sedition, notrebellion. Moreover, the speeches found seditious in 1923 and 1932 would betolerated under the c1ear-and-present-danger doctrine of today. The c1ear-and-present-danger rule means "that the evil consequences of the comment or utterancemust be 'extremely serious and the degree of imminence extremely high' before theutterance can be punished. The danger to be guarded against is the 'substantive evil'sought to be prevented."19 Our country has gone through many anti-governmentspeeches in the 70 years which followed. Actual taking up of arms and actualuprisings have happened. Entire municipalities have been captured and occupied byHukbalahap or HMB, Moro National Liberation Front (MNLF), and MILF forces.From 1923 to 2001, there is not a single decision of the Supreme Court alluding thatthe tenor of the speeches and acts of Senator Honasan, fellow senators andcompanions would have amounted to rebellion.

Significantly, the May 10, 2001 decision of the Supreme Court in the state-of-rebellion petitions did not, and could not, find any factual basis to show that therewas an actual rebellion. The Supreme Court did not mention a single fact or incidentupon which a fmding of rebellion could be based. The Court did not validateProclamation No. 38 nor General Order No. 1. It, on the other hand, found thatwarrantless arrests were made. In fact, the Court enjoined further warrantlessarrests. The petitions were denied because, on May 6, 2001, the President lifted herdeclaration of a state of rebellion. Hence, the petitions were simply declared mootand academic. There was no decision on the merits.

The Court bypassed the challenges to the state of rebellion. Victims ofwarrantless arrests were told that tl1eyhad adequate remedies in the ordinary courseof law. The Court did not go into the sufficiency of the basis for the exercise ofmilitary power, Proclamation No. 38 having been lifted.

Resort to a decision "not to decide or not to pass upon the 1ssue" isforeclosed by the 1987 amendment to the Constitution. It states that "judicial power

IX People \'. Nabong, 57 Phil. 455 (1932).19 Cabansag Y. Fernandez, 102 Phil. 151 (1957).

includes the duty of the courts of justice ... to determine whether or not there hasbeen a grave abuse of discretion amounting to lack or excess of jurisdiction on thepart of any branch or instrumentality of the Government."20 Note that a decision isa duty.

The expanded definition of judicial power was impelled by the perceptionthat during the martial law regime of President Ferdinand E. Marcos, the SupremeCourt used the techniques of avoidance, especially the political question doctrine, toallow alleged unconstitutional acts to be legitimated by simply refusing to exercise itspower of judicial review.

It may be rash to declare that the political question doctrine has been totallydiscaided.21 For one thing, the convenient inclusion of the phrase "grave abuse ofdiscretion" allows the Supreme Court to justify its non-interference in presidential orlegislative acts when it decides not to interfere. Instead of resorting to the time-honor~d' doctrine of political question, the Court can state that there is no graveabuse of discretion.

At any rate, on the extent of its power of review, the Court has categoricallydeclared that:

Even if the question were political in nature, it would still come withinthe Court's power of review under the expanded jurisdiction conferredupon it by Article VIII, Sec. 1 of the Constitution, which includes theauthority to determine whether grave abuse of discretion amounting toexcess o~.lackof jurisdiction has been committed by the govemment.22

Under the above ruling, a political question is within the power of judicialreview. Nevertheless, even under the old concept of political question, there appearsto be no ground in the state-of-rebellion cases, to invoke it as a method ofavoidance.

The United States Supreme Court has stated that the political questiondoctrine is one of substance and not merely procedural. It is grounded onconsiderations which transcend all particular limitations. It is a rule basic to thefederal system and fixes the Court's appropriate place within that structure.23

20 CONST. art. VIII, sec. I, par. 2.21 For one, this author cannot conceive a situation where the Court would assume jurisdiction over a

presidential decision to recognize the Peoples' Republic of China in Beijing as the legitimate govenunent in lieuof the Republic of China based in Taiwan.

22 Daza v. Singson, G.R. No. 86344, 180 SCRA 496 (1989).23 Rescue Army v. Municipal Court of the City of~s Angeles, 331 U.S. 549,91 L.Ed. 1666 (1947).

After fInding that warrantless arrests were made, the Philippine Court'sdecision not to pass upon the constitutional issue cannot be founded on the olddoctrine of political question. The policy foundations of the doctrine are missing.

The policy's ultimate foundations, some if not all of which also sustain thejurisdictional limitation, lie in all that goes to make up the unique place andcharacter in our schcme of judicial review of governmental action forconstitutionality. They are found in the delicacy of that function, particularlyin view of possible consequences for others stemming also from constitutionalroots; the comparative finality of those consequences; the consideration due tothe judgment of other repositories of constitutional power concerning thescope of their authority; the necessity, if government is to functionconstitutionally, for each to keep within its power, including the courts; theinherent limitations of the judicial process, arising especially from its largelynegative character and limited forces of enforcement; withal in the paramountimportance of constitutional adjudication in our system.24

The decision not to pass upon the merits of a burning constitutional issue isprecluded not only by the textural defInition of judicial power but by traditionalpolicy considerations stating when the Court may not venture into the politicalthicket.

In the state of rebellion cases, Honasan v. De Villa, Lac'Son v. Perev Definsor-Santiago v. Reyes, Lumbao v. Perez and Laban Ng Democ.,.atikong Pilipino v. Department ofJustite/5 no explanation was given as to whether there was an absence of grave abusewhen the warrantless arrests and unreasonable searches were effected. NojustifIcation was given for the Court's avoidance of the basic constitutional issue.No policy considerations were given for the Court's implied reliance on the politicalquestion doctrine or for the use of moot-and-academic technique.

Moving on to the provisions of the Constitution, there is a so-calledemergency powers clause,26which provides:

In times of war or other national emergency, the Congress may, by law,authorize the President, for a limited period and subject to such restrictions asit may prescribe, to exercise powers necessary and proper to carry out a

24 It! at 568-574.2' Lacson v. Perez, et al., G.R. No. 147780; Defensor-Santiago v. Reyes, G.R. No. 144781; Lumbao v.

Pere", et al., G.R. No. 144799; Laban ng Demokratikong Pilipino v. Dept. of Justice, G.R. No. 147810, May 10,2001; Honasan v. De Villa, G.R. No. 147818, May 10, 2001.

26 CO:-<ST. art. VI, see. 23, par. 2.

declared national policy. Unless sooner withdrawn by resolution of theCongress, such powers shall cease upon the next adjournment thereof.

Proclamation No. 38 and General Order No.1 (May 1, 2001) cannot bejustified as resort to emergency powers. There was no war nor emergency, nationalin scope, not even in Metro Manila. Emergency powers are conferred by an act ofCongress. In the declaration of a state of rebellion last May, Congress had no part.No national policy was declared.

If Proclamation No. 38 declaring a state of rebellion, and General OrderNo. 1 ordering warrantless arrests, are to have any constitutional foundations, itwould have to be under the commander-in-chief clause of the Constitution whichprovides the following:

The President shall be the Commander-in-Chief of all armed forces of thePhilippines and whenever it becomes necessary, he may call out such armedforces to prevent or suppress lawless violence, invasion, or rebellion. In caseof invasion or rebellion, when the public safety requires it, he may for a periodnot exceeding sixty days suspend the privilege of the writ of habeas corpus orplace the Philippines or any part thereof under martiallaw.27

The commander-in-chief clause contemplates three contingencies based ontheir nature or extent. They are: (1) lawless violence, (2) invasion, and (3) rebellion.Under the 1935 Constitution, it was not necessary to have an actual invasion orrebellion.28 An "imminent danger thereof" was enough to justify the measures to betaken. However, this does not hold true anymore under the present Constitution.The Constitution presently provides that there has to be an actual invasion orrebellion. "Imminent danger" and "insurrection" have been stricken out as reasonsfor the exercise of the commander-in-chief powers. Last May 1,2001, the Presidentdeclared the existence of an actual and on-going rebellion notwithstanding its realabsence, not even its imminence.

There are three contingencies and there are also three graded measures tosuppress these emergency situations, depending on the extent of the problem. Thefirst is to call out the armed forces to prevent or suppress the lawless violence,invasion, or rebellion. The second is to suspend the privilege of the writ of habeascorpus. And the third is to place the Philippines or any part thereof under martiallaw.

27 CONST. art. VII, sec. 18.28 CONST. (1935) art. VII, sec. 10, par. 2. The 1935 Constitution included "insurrection" as a contingency

justifying the exercise of the power.

The commander-in-chief clause and the provision on emergency powers29

complement each other and show how wide-ranging are the powers of thePresidency. As applied during World War II, the President becomes a constitutionaldictator. The executive power, already grandiose, is embellished with additionalproVlsl0ns.

There is, therefore, all the more reason why the Court should haveexpressed its legal bases when it cut short the challenges to executive power in thestate-of-rebellion cases.

It is apparent from the commander-in-chief clause that the President meetsthe degree of danger to national security with three graduated responses dependingon the gravity of the emergency.

In the fIrst instance, if there is lawless violence, invasion or rebellion, thePresident may call out the armed forces to stamp it out. The use of the phrase"whenever it becomes necessary" shows that the calling out of the armed forces canbe done only in situations where normal police action can no longer handle theemergency. Could not the ragtag mob moving towards Malacaiiang in the state-of-rebellion cases, armed with nothing more lethal than rocks, sticks, and stones, havebeen controlled by the Philippine National Police? Was there a need to call out thearmed forces? And in these cases, is the declaration of a state of rebellion and thesuspension of Bill of Rights provisions even remotely warranted? This leads to awell-founded suspicion that the Court took the easy way out with no explanationbecause the presidential acts being challenged plainly had no constitutionaljustifIcation, and the Court did not want to add to the anxieties of an uneasypresidency at the time.

Under the commander-in-chief clause, if an invasion or rebellion progressesbeyond the state where it cannot be met by simply calling out the armed forces, thePresident may go one big step further and suspend the privilege of the writ of habeascorpus. Obviously, it is only in extremely critical situations that the ultimatepresidential weapon-martial law-may be used.

No careless confusion in the use of graduated power by the President iscontemplated. One kind of power may be exercised only when the situation calls forits exercise. It follows that the Supreme Court should strike down the use of martiallaw when the calling out of the armed forces is more than suffIcient.

The premise of the Honasan petition was that by issuing Proclamation No.38 and General Order No.1, the President exercised her martial law powers andeffectively declared martial law in Metro Manila.

At this juncture, noticeable are the factual similarities of the events on May1, 2001 and on September 21, 1972, when martial law was proclaimed andauthoritarian rule prevailed for the next 14 years. Both involved the issuance ofproclamations formally declaring existence of rebellion and the subsequent issuanceof a general order, addressed to the Armed Forces of the Philippines, ordering it toquell and suppress the said rebellion. However, though the former dictator had thetact to identify his proclamation's number and even show the text thereof onnational television, the present President's proclamation was delivered only throughher spokesperson. This document evidencing such proclamation was never shownor even read during such announcement.

It is dIe theory of the Honasan petition that to formally declare a state ofrebellion pursuant to section 18, article 7 of the Constitution amounts to aninvocation, and marshalling, of an actual exercise of the extraordinary power toimpose martial law granted to the president as commander-in-chief. Such adeclaration by itself was an admission by the President that, in her opinion, the threatto the state is of such a grave and inlmediate nature that the inherent powers shecurrendy exercised as the civilian Chief of State and as Commander-in-Chief of theArmed Forces of the Republic were insufficient and wanting.

The specific mention in the old Constitution of rebellion and insurrectionalong with invasion and imminent danger thereof, shows that the terms "rebellion"and "insurrection" were used therein in the sense of a state or condition of thenation, not in dIe concept of a statutory offense. This is illustrated in the case ofGarcia-Padilla v. Enrile.30 Such a similar declaration is an admission of the inadequacyof the strength of her ordinary powers as the Commander-in-Chief, forcing her tocall upon the extraordinary powers to impose martial law.

A review of Proclamation No. 1081, the 1972 Martial Law Decree, revealsthat then President Marcos used as his rationale his belief that his ordinary powers asCommander-in-Chief were inadequate and ineffective to contain the existingrebellion and that the formal declaration of a state of rebellion necessarily served as awarning on the utilization of the courses of action allowed by the Constitution.

The very nature of a Presidential Proclamation clearly shows that itspromulgation lays down the legal and constitutional basis for subsequent acts

covered by such proclamation. It is not a power descriptive in nature but rather anenabling power.

Under Section 7, Chapter 2, Book III of the Revised Administrative Code, ageneral or special order is issued in the President's capacity as Commander-in-Chiefof the Armed Forces of the Philippines. However, General Order No.1, dated May1, 2001, also directed the Philippine National Police to suppress and quell theperceived rebellion.

The law is clear on the nature of the Philippine National Police. RepublicAct No. 6975 states that its national scope and civilian character shall be paramount.No element of the police forces shall be military nor shall any position thereof beoccupied by active members of the Armed Forces of the Philippines.31

A situation where civilian law enforcement and the entire national policeforce and adjunct agencies are made subject to military orders only occurs in a stateof martial law.

Pursuant to the declaration of a "state of rebellion" in the National CapitalRegion, the executive branch of the government has arrogated unto itself a portionof the power of the judiciary, or that of determining probable cause for the issuanceof a warrant of arrest. A review of the phraseology of the "whereas" clauses of theProclamation and the General Order clearly shows such assumption of judicialpower by its general conclusion on the existence of probable cause.

The arrests made pursuant to the declaration of the President of a "state ofrebellion" were directed against persons who made speeches in front of the pro-Estrada crowd gathered at the EDSA Shrine. Furthermore, police authoritiesprohibited the holding of rallies and meetings in designated areas in the metropolis.This government action has a chilling effect on the exercise of free speech andassembly. As of today, civil society has a false sense of security because of therepressive tactics of the government exhibited in the state-of-rebellion cases. Oneshould learn from history that this calm atmosphere may be but a prelude to greaterrepression of civil liberties.

Honasan's contention in his petition is this: the constitutional safeguardsestablished around the emergency power of the President were ignored and, by meresemantics, she has avoided the duties and responsibilities imposed by the Charter onthe exercise of her martial law powers.

In his dissenting opinion in the state of rebellion cases, Justice Santiago M.Kapunan pointed to the decision in Integrat«i Bar of the Philippines v. Ztmart;t12 wherethe Supreme Court ruled:

[I']he distinction (between the calling out power, on the one hand, and thepower to suspend the privilege of the writ of habeas cmpus and to declaremartial law, on the other) places the calling out power in a different categoxyfrom the power to de,clare martial law and the power to suspend the privilegeof the writ of habeas cmpus, otherwise, the framers of the Constitution wouldhave simply lumped together the three powers and provided for theirrevocation and review without any qualification. Expressio unius est exclusioalterius.

The reason for the difference in the treatment of the aforementioned powershighlights the intent to grant the President the widest leeway and broadestdiscretion in using the "calling out" power because it is considered as thelesser and more benign power compared to the power to suspend the privilegeof the writ of habeas cmpus and the power to impose martial law, both of whichinvolve the curtailment and suppression of certain basic civil rights andindividual freedoms, and thus necessitating affirmation by Congress and, inappropriate cases, review by this Court.32-A

The lesser and more benign "ca11ing-out"power was already being exercisedfully on May 1,2001. No formal proclamation of martial law or suspension of thewrit of habeas corpus was declared. Only the Armed Forces of the Philippines(AFP) and the Philippine National Police (PNP) were called out. Justice Kapunan,however, observed that on May 1, 2001, it was ironic that the more benign power ofcalling-out the armed forces became a heavier burden on civil liberties than the moredrastic remedies of martial law and suspension of the privilege of the writ of habeascorpus.

(1) The period for martial law or suspension is limited to a period notexceeding sixty days;

(2) The President is mandated to submit a report to Congress within fony-eight hoursfrom the proclamation or suspension;

(3) The proclamation or suspension is subject to review by Congress, which mayrevoke such proclamation or suspension. If Congress is not in session, it shallconvene in 24 hours without need for call; and

32 G.R. No. 141284, Aug. 15,2000,338 seRA 81.32-A 338 SCRA 81, 108·110.33 CONsr. art. VIT, sec. 18.

(4) The sufficiency of the factual basis thereof or its extension is subject to review bythe Supreme Court in an appropriate proceeding.

To the above, we may note the other safeguards of the Constitution. Astate of martial law does not suspend the operation of the Constitution. It does notsupplant the functioning of civil courts or legislative assemblies. It does not conferjurisdiction on military courts and agencies over civilians in places where civil courtsare able to function. And it does not automatically suspend the privilege of the writof habeas corpus. Suspension has to be expressly proclaimed.34

The Constitution also provides that persons must f1!st be charged in courtfor rebellion before the suspension of the privilege of the writ may apply to them.The arrested person must be judicially charged in court within three days otherwise,he must be released.35

The contingency of "invasion" has never been raised in the Philippines. Nocourt cases involving the suspension of civil liberties were flIed or could be ftledwhen Japan invaded the Philippines. However, the Constitution provides that thesuspension of the privilege of the writ is basically for offenses inherent or direcdyconnected with invasion.36

In the state-of-rebellion petitions,37 the Supreme Court ruled that after theissuance of Proclamation No. 38 and General Order No.1, there were warrandessarrests. The Court stated: ''Warrandess arrests of several alleged leaders andpromoters of the 'rebellion' were thereafter effected. Aggrieved by the warrandessarrests, and the declaration of a 'state of rebellion', which allegedly gave a semblanceof legality to the arrests, the following four related petitions were ftled before theCourt."

In the joint comments ftled by the respondents, they stated that it was"already the declared intention of the Justice Department and police authorities toobtain regular warrants of arrests from the courts ... preliminary investigations willhenceforth be conducted."

It is clear from the joint comments of the respondents that what they hadwas only an "intention" to secure warrants of arrest. This was an after-thought madeafter petitions had been ftled and the Supreme Court was already looking into the

34 Id35 Id36 Id37 Lacson v. Pelez, et aI., G.R. No. 147780; Defensor-Santiago v. Reyes, G.R. No. 144781; Lumbao v.

Perez, et aI., G.R. No. 144799; Laban ng Demokratikong Pilipino v. Dept. of Justice, G.R. No. 147810, May 10,2001; Honasan v. De Villa, G.R. No. 147818, May 10,2001.

matter. Major newspapers published the respondents' remarks that rebellion chargeswould be flIed only after the petitioners had surrendered.

The truth is that Senator Juan Ponce Enrile was arrested without warrant atfour o'clock of that afternoon following the proclamation at his residence.Ambassador Ernesto Maceda was arrested the following day, also without anywarrant. Senator Honasan and General Lacson were ordered arrested, without theformality of warrants of arrest, but could not be apprehended.

See. 2. The right of the people to be secure in their persons, houses, papers,and effects against unreasonable searches and seizures of whatever nature andfor any purpose shall be inviolable, and no search warrant or warrant of arrestshall issue except upon probable cause to be determined personally by thejudge after examination under oath or afftrmation of the complainant and thewitnesses he may produce, and particularly describing the place to be searchedand the persons or things to be seized.

The constitutional guarantee against unreasonable searches and seizures isthe essence of constitutionalism. It spells the difference between the rule of law andthe rule of whim or caprice. The guaranteed security against warrantless arrests andarbitrary intrusions by the military or police is basic to a free society.

Justice Kapunan, in the state-of-rebellion cases, cited a separate opinion inan American case,39 which stated that "among deprivation of rights, none is soeffective in cowing a population, crushing the spirit of the individual and puttingterror in every heart. Uncontrolled search and seizure is one of the fIrst and mosteffective weapons in the arsenal of every arbitrary government." The Justice addedthat the human personality deteriorates, dignity and self-reliance disappear, wherethere is unheralded search and seizure.

The petitioners in these instant cases are senators or former senators of theRepublic. Their spirits may not have been crushed but there was some terror in theirhearts for themselves, their families and more importantly for their countrymen.

It is this power of judicial review that petitioner prays the High Court, in allurgency and humility, to exercise and not to abdicate. Without any categorical

38 Art. III, see. 2.39 Brinegar v. United States, 339 U.S. 2084 (1949) Oackson,J., dissenting opinion).

declaration from the Honorable Court on the weighty question before it,petitioner, in all candor and honesty, fears for the future.

In an age where public perception can be shaped through various media ofinformation and events can easily be staged, as Marcos did to justify hisdeclaration of martial law,what is to prevent another President from repeatinghistory? The framers of our Constitution, with admirable foresight, leavenedby painful experience, have sought to preclude history's Sisyphean tendenciesby expressly mandating that the highest court of the land shall have the powerto delve into and rule on the sufficiencyof the factual basis for the exercise bythe President of his extraordinary powers granted under the Constitution.40

Senator Honasan's Urgent Motion to Resolve Prayer for TemporaryRestraining Order and/or Preliminary Injunction stated:

6. With the peculiar and highly alarming position taken by the ExecutiveBranch of government, wherein a person can be subject to warrandess arrestbased on media declarations made by the authorities, sans filing of therequisite charges even if the government itself admits possession of therequisite evidence to charge such a person with a capital offense of acontinuing nature, any citizen can now be charged, through the media, of anoffense of a continuing nature and then arrested without a warrant. Unless, ofcourse, the government intends to disregard and invalidate the Constitutionalprecept of equal protection of the laws by adopting a landmark pro hac viceapproach to petitioner's case.

6.1. Equally troubling are the enforcement implications ofsuch a doctrine. With this chilling doctrine, reminiscent of theMarcos years, the government can now invade, sans the requisitewarrants, the privacy of the abode of any Juan dela Cruz, in theguise of apprehending the petitioner. A person can now bearrested, even while engaging in his private moments, without anyforeknowledge of any charge against him, just because thegovernment, in a secret decree or instruction, has declared, or evensuspects, him of engaging in rebellious activity.41

The President of the Philippines has never been constrained like PresidentAbraham Lincoln to scrounge for constitutional foundations to shore up his actionsin an emergency. The present President is given all the powers she needs by thecrisis provisions of the Constitution. Moreover, she can always cite the use of powerby Lincoln, Wilson, and Roosevelt as precedents during genuine emergencies in theUnited States. But even when crisis powers are used for purposes different fromthat for which they were intended, the President should always point to a plausibleconstitutional basis for the use of power .

.."G.R. No. 147818, at 5.41 Id. at 4.

In the emergency powers cases, President Manuel L. Quezon was givenlegal authority by Congress to legislate upon the start of the Japanese invasion.42

There is no question that war powers were needed. The necessity was patent plusthe fact that the Japanese occupation was so speedily accomplished that no courtchallenge to the grant of powers was conceivable. However, when the emergencypowers were used for purposes not related to the waging of war, the Supreme Courtstruck them down.

After the surrender of the Japanese imperial forces to the allied countries,President Elpidio Quirino continued to legislate. He enacted an appropriation lawfor the operation of the government in fiscal year 1949-1950. He issued an export-import control order. He was exercising legislative powers concurrendy withCongress.

In Araneta v. Dinglasan,43 the Supreme Court ruled that when Congress metin regular session on May 25, 1946, the emergency powers statute, CommonwealthAct No. 671, became inoperative. Because an uncooperative Congress failed toenact appropriation measures for public works and aid to victims of calamities,President Quirino was forced to continue the exercise of emergency powers neverintended to extend beyond World War II. When Congress passed an act formallyterminating emergency powers, the President vetoed it and it never became law.

The Court, in Rodriguez v. Gella,44 explained at length why this exercise ofWorld War II powers could not be validated. It squarely passed upon the issues.

There was a severe shortage of rice in 1962. To purchase rice, a statutoryrequirement provided that a certification of a rice shortage had to be obtained fromthe National Economic Council. For various reasons, President DiosdadoMacapagal could not secure the required authority. He decided to use the powers ofthe President under intemationallaw. Macapagal entered into executive agreementswith governments of foreign countries to buy rice. To further strengthen theexercise of executive power, he also used the commander-in-chief clause to buy riceostensibly for the armed forces. It did not matter that the thousands of tons of ricepurchased would have lasted the armed forces for over a century.

The Court in Gonzales v. Hechanova,45 struck down the unconstitutionalexercise of power. It did not use any technique of avoidance. By the time, the Courtgot around to rendering a decision, rice had already been shipped to the Philippines.

42 Com. Act No. 671 (1941).43 84 Phil. 468 (1949).44 92 Phil. 603 (1953).4S G.R. No. L-21897, 9 SCRA 230 (1963).

There was no way whereby the illegallypurchased rice could be ordered returned.The country needed rice badly. The Court did not issue any moot and academicdecision. It still decided the case squarely on its merits.

The tradition set in the emergency powers case and in Gonzales v.Hechanova'6 was not followed in the state-of-rebellion cases being examined. Thenecessity for a decision on the merits was especiallycompelling in the months whichfollowed EDSA II.

In the petitions for habeas corpus, prohibition, injunction and mandamusfued only months ago, the petitioners stated that at no point since the post-Marcoshistory has the role of the judiciary been more crucial.

The power of judicial review has been classified by some legal scholars intothree general categories: first is the checking or umpire function; second is thelegitimating or validating function; and third is the symbolic or educationalfunction.47

The checking or umpire function is the traditional concern of judicialreVIew. The Court interprets the constitutional division of powers among thevanous departments of the government. It "reads the constitutional map andallocates constitutional authority among the major structures of government."48 Italso draws the boundaries of fundamental rights or liberties where governmentpower cannot intrude.

The legitimating or validating function serves to firm up popular supportfor controversial government action. In a society which adheres to the rule of law,all public acts must be legal and valid. It is the Court which declares them legal. TheCourt passes upon a statute or a presidential act and announces it as legitimate and,therefore, it should be acceptable to the people. It is the role of the Court to showthose who are subjected to exertions of unpopular government power that theexercise of that particular power was not unreasonable, in truth constitutionally just,necessary, and proper.

The symbolic function is educational or informative in nature. It is notenough for dle Court under its checking function to nullify intrusions of state

." Ie!.H For a summary of the functions and for citations of other works on these functions, xee Florentino

Feliciano, On the F1Inctionr o/l1ldilia! Rel'iew and the Doctrine of Politi"JI,QlleJtion, 39 PHIL.1..J. 444 (1964).•, rd.

authority into areas reserved for the individual. It must also formulate the guidingand controlling precept, doctrine, or rule.

For instance, as the Court sheds light upon the different freedoms in theBill of Rights, it pronounces to all concerned the scope and meaning of thesefundamental values of the community. As a rule, the Court is not supposed to decidemoot and academic cases. In the exercise of its symbolic function, it has, however,decided cases and promulgated decisions it was not supposed to render.

When the Court declined to pass upon the substantive merits of the state-of-rebellion cases, it may have unwittingly legitimated, at least for the time being, theexercise of military power by the President under circumstances where its exercisecannot be justified. However, the decision leaves an empty feeling behind. Thepeople have been deprived of enlightenment on the extent of presidential powers.How can the President exercise martial law powers and suspend the application ofthe unreasonable searches and seizures provision when there is neither invasion norrebellion in the limited confines of Metro Manila?

The moot-and-academic decision of the Supreme Court in the state-of-rebellion cases may have been technically correct but, with all due respect, it isunwise and inexpedient. To prevent future warrantless arrests where there is norebellion or other crimes against public order, it would have done an immeasurablegood for the country if the petitions were decided on their merits.

The challenge to executive power in Salonga v. Cruz-Patio, et al.49 becamemoot and academic when upon instructions of President Marcos, Senator JovitoSalonga was excluded by the Minister of Justice from the information charging himas a leader in bombing incidents connected with subversive activities. If criminalcharges have been withdrawn, there is no more reason to continue with a challengeto the use of the iron arm of the law to harass and oppress the accused.

The Court deliberated on whether it should dismiss the Salonga petition forhaving become moot or decide it squarely on the merits. It decided to pass upon themerits. It stated that the Court has a symbolic function to educate bench and bar onthe extent of protection given by constitutional guarantees. Furthermore, theSupreme Court stated that it has the duty to formulate guiding and controllingprinciples and doctrines even in moot and academic cases. The Court added that "ithas the symbolic function of educating bench and bar on the extent of protection

given by constitutional guarantees."50 There was a dissenting view but the Courtstrongly ruled against the use of the moot and academic doctrine.

There are other cases where the Court passed upon the merits of moot andacademic cases. In Deja Camara v. Enage,51 the accused had the right to bail. Whenthe trial court required a bail bond ofP1,195,200.00 for his release, there could be nodoubt that the poor laborer could not exercise his right to bail. While his case waspending, he decided to flee from confinement. Under the rules, he forfeited hisapplication to be released on bail.52 In other words, his petition became moot andacademic. This did not deter the Court from rendering a lengthy decision onexcessive bail. It ruled that "where the right to bail exists, it should not be renderednugatory by requiring a sum that is excessive. So the Constitution commands. It isunderstandable why. If there were no such prohibition, the right to bail becomesmeaningless. It would have been more forthright if no mention of such guaranteewere found in the fundamentallaw."53

In Gonzales v. Marcos,54 the creation of the Cultural Center of the Philippinesthrough the President's executive order was challenged as an ultra vires exercise oflegislative power. Only Congress could create public offices or provide for theircreation. 55 The case technically became moot upon the proclamation of martial lawby President Marcos.

In Aquino v. Commission on Elections,56 the Court in the meantime ruled thatunder martial law, the President could exercise legislative power in the absence of alegislature. The incumbent President could also exercise the same power under the1973 Constitution. 57 President Marcos, therefore, issued a presidential decreeestablishing the Cultural Center. The Gonzales petition challenging his exercise oflegislative powers before martial law and prior to the transitory provisions of the newConstitution became moot. This did not however preclude the Court fromrendering a decision on the merits of the case.

In Aquino, fr. v. Pom-e Enrile,58 habeas corpus petitions were filed questioningthe unreasonable, search, seizure, and detention of 27 petitioners charged with

50 Id. at 463.51 G.R. No. 32951-2,41 SCRA 1 (1971).52 REVISEDRULESOF CRIMINAL PROCEDURE,ltule 114, sec. 21.53 Dela Camara v. Enage, slIjJra note 51, at 8. The Court refened to Stack v. Boyle, 342 U.S. 1 (1951), also

on excessive bail.S< G.R. No. L-31685, 65 SCRA 624 (1975).55 FLO\1) MECHEM, PUBLICOFFICE AND PUBLICOFFICERS, sec. 1; State v. Hawkins, 357 Pac. 411, 53

A.L.R.583.56 G.R. No. L-40004, 62 SCRA 275 (1975).57 CONST. (1973) art. XVII, sec. 3, par. 2.58 G.R. No. L-35546, 59 SCRA 183 (1974).

murder, subversion, and illegal possession of firearms. The use of martial lawpowers including trial of civilians by militaty courts was challenged. While thepetition was pending, 26 petitioners were released from confmement. The habeascorpus cases became moot and academic as to them. Only Senator Benigno AquinoJr. remained under detention. The habeas corpus case he filed had also becomemoot when criminal charges were filed against him. He was already detained underauthority of law. The Court still promulgated a decision which is one of the longestdecisions in the Reports.

There are cases less momentous and not as far reaching as the state-of-rebellion petitions of 2001 where the Supreme Court went into the merits of mootand academic cases. Philippine Associat:im of ~ and r.Jnirersities '[I. S«:retary ofEdui:ation59 was filed by petitioner universities who all had permits to operateeducational institutions and not one suffered any injury or wrong from the statute.Not one of the petitioners had any standing to sue. Yet, they still challenged theconstitutionality of Act No. 2706 requiring prior permits before a school couldoperate. The Court decided the case on its merits and explained at length why ActNo. 2706 was a valid legislation.

In Omena '[I. PendaJun, 60 a member of the Congress was suspended fromoffice by the House of Representatives for disorderly behavior. He had delivered aprivilege speech charging the President with serious offenses he could not prove. Hewas immune from criminal prosecution for libel or slander under the legislativeprivilege communications doctrine but not from the disciplinary powers of theHouse. His colleagues wanted to please the President and suspended him for aperiod lasting beyond his term of office.

The case in Osmeiia '[I. Pendatun61 had become moot and academic becauseCongress had already adjourned. There was nothing more to challenge or prohibitbut the Court still decided on the merits of the case.

There are many other cases wherein the Court decided to go into the issuesbecause it was best for public policy and numerous persons were affected. Morerecent cases may be mentioned, one of them decided only last September 18, 2000.

5997 Phil. 806 (1955).60 109 Phil. 863 (1960).61 Jd. Seeaiso Tropical Homes v. National Housing Authority. G.R. No. L-48672, 152 SCRA 540 (1987)

and Tolentino v. Secretary of Finance. G.R.No. 115455.235 SCRA630 (1994).

The decision in Salva v. MakalintaP reiterates the ruling in Alunan III v. Miraso!3 andViola v.Alunan 111,64where the Supreme Court ruled that:

(C)ourts will decide a question otherwise moot and academic if it is capable ofrepetition, yet evading review. For the question whether the COMELEC canvalidly vest in the DILG the control and supervision of SK elections is likelyto arise in connection with every SK election and yet the question may not bedecided before the date of such elections.

The principle in Salva v. Makalintal applies more strongly in the state-of-rebellion cases. The President could always declare a state of rebellion and then usemethods applicable only under martial law without proclaiming martial law. Theproclamation can be lifted after the leaders have been arrested and the crowd hasdispersed, only for the leaders to be released with the lifting of the proclamation.

The Court may have deemed it impolitic to examine the acts of thePresident and declare them invalid. After all, when the state of rebellion was lifted, itmust have been because she realized that she, the President, was given erroneousadvice or militaristic recommendations by her advisers. Still, resort to the samemodus operandi can be repeated in the future. While challenges are pending beforethe Court, the state-of-rebellion would be lifted. But the damage has been done.Constitutional guarantees have been disregarded.

The issues in the petitions discussed are vital in their significance. Wasthere a rebellion at EDSA III? Were the unreasonable searches and seizures and thewarrantless arrests justified? To what extent should freedom of speech and freedomof assembly in the petitions of the impoverished masses and in the only modes forredress of grievances available to them be allowed and protected?

One can only hope that what happened to the petitioners in these cases willnot be repeated and that the Supreme Court shall always lend its mighty voice in theprotection of essential liberties.

62 G.R. No. 132603, Sept. 18, 2000, the Court citing Southern Pac. Terminal v. ICC, 219 U.S. 498 (1911);Moore v. Ogilvy, 394 U.S. 814 (1969); and Dunn v. Blumstein, 405 U.S. 330 (1972) as precedent decisions ofthe U.S. Supreme Court.

63 G.R. No. 108399,276 SCRA 501 (1997).64 G.R. No. 115844,277 SCRA 409 (1997).

TRADITION, CONTESTATION AND DEMOCRATIZATION:LAw AND THE CHALLENGE OF PHILIPPINE

"FOLK DEMOCRACY"

In this article, Professor Dante Gatmaytan analyses the democratization ofPhilippine politics. From the datus who wielded political and economic power overtheir local chiefdoms during pre-colonial times, to the elite-dominated democracyintroduced by Spain and the United States, he shows that the incorporation of theFilipino's alliance-building practices to the electoral processes institutionalized by ourcolonizers has resulted in what is presently described as a dysfunctional Philippine-style democracy.

Nevertheless, he points out that Filipinos introduced two innovations inPhilippine law designed to democratize electoral processes: local sectoralrepresentation in local legislative councils and the party-list system. Both theseinnovations are designed to skew elections in favor of groups that are historically leftout of politics and public office.

TRADITION, CONTESTATION, AND DEMOCRATIZATION:LAw AND THE CHALLENGE OF PHILIPPINE

"FOLK DEMOCRACY"

Joseph E. Estrada was elected President of the Philippines in 1998 with thelargest margin of victory in Philippine history. I His presidency was also the shortest.Estrada's administration was racked by scandals and hounded by charges ofineptitude and corroption2 that by October 2000, Estrada became the first PhilippinePresident to be impeached by Congress.3 His trial in the Senate followed shordy andwas scheduled to end sometime on February 2001.4

But on January 16, 2001, Estrada's supporters in the Senate blocked theexamination of bank documents that prosecutors claimed would prove that Mr.Estrada kept millions of dollars in secret bank accounts. Angered by the decision,people took to the streets to demand Estrada's resignation from office. As dayswent by, members of the Estrada Cabinet resigrted and the military and the police

• Assistant Professor, University of the Philippines, College of Law. LL.B., University of the Philippines,1991; M.S.E.L., Vermont Law School, 1995; LL.M.~University of California, Los Angeles, 1996. This article isa product of discussions in my Legal Theory course with UP Law class 2004-E. I want to thank that class forforcing me to look deeper into the nature of Philippine society and I hope that this article can further shed lighton what then seemed like a deficient explanation on the quality of Philippine democracy. I also want to thankMani Thess Peiia and Jaime Feliciano (11. B., 2003, expected) for preparing this article for publication.

1 According to the Commission on Elections (COMELEC), Estrada garnered 42.1% of the votes cast inthe May 11, 1998 national elections. See NATIONAL STATISTICALCOORDINATINGBOARD, NSCB STATISTICSSERIESNo. 2001-002, A STATISTICALANALYSISOF lHE COUNTRY'SELECTORALEXERCISES7 (2001).

2 Many of the allegations against Mr. Estrada involved unexplained wealth, cronyism and a profusion ofmistresses. See PHIUPPINE CENTERFOR INVESTIGATIVEJOURNAUSM,INVE.STIGATING ESTRADA:MILLIONS,MANSIONSAND MISTRESSES(Sheila S. Coronel ed., 2000).

3 The impeachment complaint against Joseph E. Estrada accused the President of bribery, graft andcorrupt practices, betrayal of the public trust, and the culpable violation of the Constitution. Articles ofImpeachment, at http://www.nenepimentel.org/trial/ complaint.html (last modified March 21, 2001).

4 For a summary of the events leading to the impeachment of Mr. Estrada, see Marites D. Vitug, Tighteningthe Noose, NEWSWEEK,Nov. 27, 2000, at 39.

brass withdrew their support from the President. Shortly thereafter, PresidentEstrada left the Presidential Palace.

After noon, on January 20, 2001, Vice President Gloria Macapagal-Arroyotook her oath as President of the Philippines. She declared:

I will refer to one of my core beliefs, that of the need for new politics. Politicsand political power as traditionally practiced and used in the Philippines areamong the roots of the social and economic inequities that characterize ournational problems. Thus, to achieve true reforms, we need to outgrow ourtraditional brand of politics based on patronage and personality. Traditionalpolitics is the politics of the status quo. It is a structural part of our problem.

We need to promote a new politics of true party programs and platforms, ofan institutional process of dialogue with our citizenry. This new politics is thepolitics of genuine reform. It is a structural part of the solution.

We have long accepted the need to level the playing field in business andeconomics. Now, we must accept the need to level the playing field in politicsas well. We have long aspired to be a world class economy. Now, we mustalso aspire to develop a world class political system, one in tune with the 21stCentury.s

President Arroyo was a new Philippine leader with an old message-theneed to abandon "traditional politics" and to attack patronage and personalitypolitics. The message was familiar to many Filipinos, but it was welcome.6

Less than a week later, sectors that supported Arroyo's ascension to officestarted to criticize her. Business leaders complained that her Cabinet appointmentsreflected political concessions, rather than competence of her appointees.? Criticsobjected to the return of "traditional politicians" to power-a retreat from thepromise of change they expected from the new government.8

Despite the extraordinary events leading to the fall of the Estradagovernment, radical changes may not be forthcoming from the Arroyo

; President Gloria Macapagal-Arroyo's Inaugural Speech as the 14th President of the Republic of thePhilippines delivered at the EDSA Shrine, Ortigas Avenue, Mandaluyong City, Philippines, Jan. 20, 2001,http://www.kgma.org/speech.htmI.

6 Arroyo herself is the product of traditional politics. She is the daughter of a former President andenjoys tremendous popularity. When she ran for the vice president in 1998, Arroyo garnered even more votesthan Joseph Estrada-49.7% of the "otes cast. See NATIONAL STATISTICALCOORDINA11NGBOARD, NSCBSTATISTICSSERIES No. 20Ot-002, A STATISTICALANALYSISOF mE COUNTRY'SELECTORALEXERCISES7(2001).

7 Clarissa S. Batino and Amy Bainbridge, Cabinet appointm alarm dvil JOdety, PHIL. DAILY INQUIRER,Jan.26, 2001, at At.

• !d. at A16.

administration. Unlike the toppling of Ferdinand Marcos in 1986, observers wereless enthused about the demonstrations that led to the removal of Estrada fromoffice.9 The international media's response to the Estrada's ouster was almosthostile. Estrada's removal from office was branded as a conspiracy by business andpolitical ·leaders to excise an outsider from the seat of political leadership-theexclusive enclave of the elite.lO Business leaders were hurrying the end of theEstrada Presidency, which was pushing the country towards economic ruin.11 Theallegations of corruption and the impeachment trial provided the opportunity to savethe economy.12 Others pointed out that Estrada's removal "was a de facto militarycoup, with only broad upper- and middle-class support"l3 led by "the opportunistcoalition of church, business elite" and the defection of the army brass.14 It was a"soft coup" engineered "to return the old, wealthy political and business elite topower"15and a victory for "mob rule."16

If these charges are accurate, traditional politics, an embarrassing if resilientfeature of Philippine politics, is safe from any threat of upheaval.!7

9 The Supreme Court ruled that the Arroyo government is not a revolutionary government. The Courtexplained that unlike the ouster of Ferdinand Marcos in 1986, which "overthrew the whole government," theremoval of Joseph Estrada was "an exercise of people power of freedom of speech and freedom of assembly topetition the government for redress of grievances which only affected the office of the President." It addedthat the issues concerning the legitimacy of the Arroyo presidency are not political issues because they implicatespecific provisions of the Constitution. The Supreme Court dismissed the petitions of former President JosephEstrada challenging Gloria Macapagal-Arroyo as the de jure President of the Philippines. See Estrada v.Desierto, G.R. Nos. 146710-15 and Estrada v. Macapagal-Arroyo, G. R. No. 146738, March 3, 2001, Decision,21-22, available at http://www.supremecourt.gov.ph.

10 See Peter Cordingley & Antonio Lopez, After the Gloria Euphoria, ASIAWEEK,Feb. 2, 2001, at 21.11 For a summary of the Philippines' economic performance under the Estrada Administration see Mark L.

Clifford, Not a moment too soon, BUSINESSWEEK, Feb. 5, 2001, at 16-19. See also Solita C. Monsod, Mediocre byEmpirical Findings, in PEOPLE POWER 2: LESSONSAND HOPES 207-208 (2001) (discussing the deterioratingeconomic conditions under Estrada's administration).

12 Sandra Burton, People Power Rcdux, TIME,Jan. 29, 2001, at 14, 17.IJ William H. Overholt, It's 'People Power' Again, but thi,. Time Without the People, INTERNATIONALHERALD

TRIBUNE,Jan. 24, 2001, http://www.iht.com/articles/8430.htrn.14 Philip Bowring, Filipino DemocrrlfY Needs Stronger Institutions, INTERNATIONALHERALDTRIBUNE,Jan. 22,

2001, http://www.iht.com/articles/8219.htm. Later reports reveal that the protests at EDSA aborted anattempt by members of the military to stage a coup against Mr. Estrada. Retired and active generals planned todeploy troops, seize the president and arrest more than 50 of his allies. When Armed Forces Chief of StaffGen. Angelo Reyes learned that the coup attempt was imminent, he defected to the opposition leaving thePresident without military support. Worried that an acquittal in Congress would give Estrada new legitimacy,the conspirators planned to oust him before his impeachment trial was expected to end on Feb. 12. See RichardC. Paddock, 'ConJtitutionaICoup' Ended E.rtrat/a'J Rule, THEL.A. TIMES,Jan. 22, 200l.

I; Deidre Sheehan, More Power to The Powerful, FAR EASTERN ECONOJl,fiCREVIEW, Feb. 1, 2001,http://www.feer.com/_0102_01/p016region.html.

16 Anthony Spaeth, Oops, We Did It Again, TIME, Jan. 29, 2001, at 22. I do not wish to suggest that theforeign media's assessment of the ouster of Mr. Estrada is accurate. However, local analysts and journalistsresponded to these views and the rebuttals need not be repeated here. For a summary of the rebuttals, see SethMydans, Expecting Praise, Filipinos are Critici~d for Ouster, NEW YORK TIMES, Feb. 5, 200l.

17 For a discussion on "traditional politics" in the Philippines, see Part III, infra.

Traditional politics is the dominant feature of Philippine politics. Cynicscharge that personalities, patronage, and personal gain are so enmeshed withgovernment that it is the cause of the country's economic and political stagnation.Former House Speaker Manuel Villar probably said it best: "Politics here are thepolitics of personality. If you want to run [for public office] you have to learn todance and sing, it doesn't matter what else you do. Politicians, instead of sharpeningtheir skills in management, sharpen their singing SkillS."IB

Aware of these defects, Filipinos attempted to institute changes in their lawsto end traditional politics. After the fall of the Marcos regime in 1986, they ratified aConstitution with strong provisions on democratization and Congress passed laws toaddress the country's dysfunctional democracy.

This article is an analysis of the democratization of Philippine politics.There are two main parts to this paper. The f1rstanalyzes the literature on Philippinepolitics and will show that the introduction of elections in the Philippines wasskewed to serve the objectives of the colonizers' empires, thereby allowing the eliteto dominate electoral politics. It argues that "traditional politics" is also the productof the incorporation of the Filipino's alliance-building practices with the electionprocesses introduced by the colonizers. Both the colonizers' designs and theFilipino response to the official selection fashioned what is now derided asPhilippine-style democracy.

The second discusses two innovations in Philippine law designed todemocratize electoral contests. It will illustrate how the framers of the Constitutionintroduced local sectoral representation in local legislative councils (sanggunians), andthe party-list system for the House of Representatives to address elite domination ofelectoral exercises. Both innovations were implanted in Philippine law to skewelections in favor of groups that are historically left out of politics and public office.The article will also analyze recent developments regarding these experiments.

Particularly, Part II provides a brief overview of the literature on democracyto show that democracy is an evolving concept, one that accommodates the legal andpolitical developments in the Philippines. Part III will discuss some of the reasonsfor the shaping of Philippine "political culture". Part IV will discuss the laws thatare designed to democratize Philippine politics and the problems that confront them.Finally, Part V assesses the state of democratization in the Philippines.

18 Deidre Sheehan & Rodney Tasker, A Chancefor Change, FAR EASTERNECONOMIC REVIEW, Nov. 2,2000, at 21,22.

In its simplest sense, democracy concerns the role of the people ingovernance. The right to democracy is the right of people to be consulted and toparticipate in the process by which political values are reconciled and choices made,19So broadly defined, many political systems today easily qualify as democracies.Indeed, popular participation in politics is spreading so quickly that there are thosewho argue that democracy may be administered in virtually every country and thatthis system is superior to all other forms of government.20 Others warn, however,that these claims to the invincibility of democracy are limited to the recognition ofmechanisms for political competition, but ignore the ways through which thesemechanisms fulfill the ends of democracy.21

These competing views as to what constitutes a democracy illustrate howthe definition of democracy is far from settled. Indeed, political scientists canidentify more than 550 subtypes of democracy.22

There are many ways of defining democracy. Most studies begin withSchumpeter's definition where "the democratic method is that institutionalarrangement for arriving at political decisions in which individuals acquire the powerto decide by means of a competitive struggle for the people's vote." Othersamplified Schumpeter's "competitive struggle for the people's vote" to mean apolyarchy- or a system, which encompasses the right to vote and contest office, thefreedom to speak and publish dissenting views, the freedom to form and joinorganizations, and the availability of alternative sources of information.23

19 Thomas M. Franck, Lelitimaty and the Democratic Entitlement, in DEMOCRATIC GOVERNANCE ANDINTERNATIONALLAW25,25-26 (Gregory H. Fox and Brad R. Roth eds., 20(0).

20 Brad R. Roth, Evaluating Democratic Progr<ss,in DEMOCRATICGOVERNANCEAND INTERNATIONALLAw493 (Gregory H. Fox and Brad R. Roth eds., 2000).

21 Id. at 494.22 LARRYDIAMOND, DEVELOPING DEMOCRACY:TOWARDCONSOUDATION 7 (1999).23 Id. at 8. Liberal democracies, one variant, look beyond elections. They require the absence of domains

of power for the military or other actors not accountable to the electorate, a system of checks and balances,provisions for political and civic pluralism as well as for individual and group freedoms. TIlls is to ensure thatcontending interests and values may be expressed and compete through ongoing processes of articulation andrepresentation after elections. Diamond continues by explaining that freedom and pluralism can be securedonly through a "rule of law," in which legal rules are applied fairly, consistendy, and predictably acrossequivalent cases, irrespective of the class, status, or power of those subject to the rules. Under a "rule of law,all citizens have political and legal equality, and the state and its agents are themselves subject to the law." Id. at10-11.

Schurnpeter's definition, however, is criticized for being deficient and beingtoo elitist.24 Scholars attempted to generate another defmition of democracy where"citizens had more access to political information, more access to political leaders,and more direct input into political processes, both in choices of candidates and inshaping policy making."25 Studies recognize "possible varieties of democracy"26 andthat

Some conceptions of democracy fall somewhere in between, explicitlyincorporating basic freedoms of expression and association yet still allowingfor constrictions in citizenship rights and a porous, insecure rule of law. Thecrucial distinction turns on whether freedoms are relevant mainly to the extentthat they ensure meaningful electoral competition and participation or whetherthey are, instead, viewed as necessary for a wider range of democraticfunctions.27

Recently, Huntington reasserted the Schurnpeterian definition and defmed ademocracy as a political system where "its most powerful collective decisions makersare selected through fair, honest, and periodic elections in which candidates freelycompete for votes and in which virtually all the adult population is eligible to vote."28He emphasizes the twin requirements of contestation and participation.

Huntington acknowledges that this defmition is minimal but dismisses otherbases for defming democracies as "sweeping and idealistic" or "fuzzy".29 He insiststhat open, free, and fair elections are the essence of democracy explaining that whileelected governments may not live up to the expectations of the electorate, thesegovernments are not undemocratic.3o With this definition, Huntington includes thePhilippines as among those which reverted to the democratic path after the ouster ofMr. Marcos in 1986.31

On the other hand, some argue, that elections alone do not make a politicalsystem democratic. They emphasize the role of citizens in governance, repudiating

24 O'Donnell points out that the criticisms of Schumpeter's definition of democracy are inaccuratebecause Schumpeter did not limit the "democratic method" to elections. Schumpeter cited many, if vague,elements that are required for a democracy. O'Donnell concedes that Schumpeter's defmition is elitist becausehe legitimizes the dichotomy between the elected and those who are not. He challenges the perception,however, that it is "minimalist" claiming that Schumpeter implied that although the primary function of theelectorate is to a produce a government, the electorate is engaged in an enduring quest of selecting and evictinggovernments. See Guillermo O'Donnell, Democrary, Law, and Comparatit'C Politics, IDS Working Paper 118 (2000).

25 JOHN D. NAGLE & ALISON MAHR, DEMOCRACY AND DEMOCRATIZATION 10 (1999).26 Id. at 12.27 Diamond, .fupra note 22, atl3.28 SAMUEL P. HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE TwENTIETH

CENTURY 7 (1993).29 Id. at 930 !d.31 Id. at 23.

the notion that elected officials have a monopoly of policy-making. According toSaward, all citizens are equal with respect to their right to decide the appropriatepolitical course of their community. He argues that there is no reason to believe thatone person or group has a better insight on any issue.32 Because of this presumptionof equality, substantive policy, and political and administrative actions performedunder substantive policy, must correspond to the express preferences of a majorityof citizens.33 A political system, in his view, is democratic only to the extent that, itinvolves realization of responsive rule.34

Democracy in its optimal and substantive sense refers to a political system that,beyond fulfilling minimal procedural criterion, the people's will is being effectedin the processes of governance, and the declared constitutional and legalpurposes and policies are being achieved through the functioning ofgovernmental and political institutions, in relation to democratic norms andexpectations. Democracy is put to the test of policy performance-the capacityof its institutions and leaders to deliver what is promised and expected.35

Democracy, others point out, is the active participation of clt1Zens indecision-making in all aspects of life, and in actualizing these decisions.36Democracy is sometimes regarded as a process of democratization where internalgroups and institutions interact with each other.3? A democracy is not aboutprocedures but about the "actual material benefits and the kinds of social justice thatit dispenses."38

As this article will show, the Philippines satisfies the election requirementbut the outcome of these exercises are wanting.

32 Michael Saward, Democratic Theory and Indices of Democrati?fJtion, in DEFINING AND MEASURINGDEMOCRACY13 (David Beetham ed., 1994).

33 Id. at 13.34 Saward explains that the emphasis is on the outcome and not the procedures because "responsive

procedures" do not guarantee that citizens will get what they want in terms of substance. There must be acorrespondence between the acts of government and the wishes of the citizens, otherwise, values other thandemocracy may be taking precedence over the realization of democratic decisions, and/or proceduralinadequacies are affecting the democratic character of policy decisions. Id. at 6, 13-14.

3S Jose V. Abueva, Philippine Democratization and the Consolidation of Democraq since the 1986 EDSA Re"oIHtion:An O'miew of the Main Issues, Trends and Prospects, in DEMOCRATIZATION:PHIUPPINE PERSPECTIVES1, 2(Felipe B. Miranda ed., 1997).

36 Miriam Coronel-Ferrer, Civil Society: An Operational Definition, in DEMOCRACYAND CITIZENSHIP INFIUPINO POUTICAL CULTURE5 (Maria Serena I. Diokno ed., 1997).

37 Id. at 6.38 See Benilda A. Aquino, Filipino Elections and "Illiberal" Democrcuy, 2 PUBUC POUCY 1, 5 Guly-Dec. 1998).

Observers often deride Philippine democracy as a poor facsimile of theideal-more rhetoric than reality. It is a contest among rival factions of the elite forpublic office and is used as a means for personal enrichment.39 It is for this reasonthat Philippine democracy is known as "elite democracy" where political andeconomic power were shared between shifting coalitions of these elite families,leaving little if any room for policy determination or legislation by majority of theFilipinos.40

Political scientists almost invariably identify the same reasons for thePhilippines' electoral system. Much of the blame is placed on a "political culture"marked by "the primacy of kinship, the influence of particularism and personalism,the importance of reciprocity and patron-client relations, the emphasis on smoothinterpersonal relations and the effect of pervasive poverty on values and behavior."41Together, these features produced a culture "characterized by personalism andparticularism, ambiguous class affiliations, skepticism about the effectiveness ofgovernment and laws, ambivalence about democracy and an uncertain concept ofnationalism."42 Response to the concerns of the majority of the Filipinos, if any, wasachieved on an "ad hoc and self-serving basis."43

This political culture and elite control of the electoral processes createdwhat is known as "traditional politics," which Timberman describes in the followingmanner:

Traditional Philippine politics were characterized by the close correlationbetween landownership, wealth, and political power. Politics were driven bythe rivalries between wealthy families and competing economic interests.Political affiliations and loyalties were determined primarily by family andlinguistic ties, patron-client relationships and patronage. Public office was

39 RENATO CONSTANTINO, The Filipino Politician, in NEOCOLONIAL IDEN111Y AND COUNTERCONSCIOUSNESS: ESSAYS ON CULTURAL DECOLONISA TION 148, 148-164 (1978).

4t1 DAVID G. TIMBERl\lAN, A CHANGELESS LAND: CON11NUITY AND CHANGE IN PHIl.IPPINE POLrncs35 (1991). In the Philippillfs, poverty fosters a short-term, pragmatic, and a conservative approach to life,forcing the poor "to relinquish their one source of collective leverage." The poor exchange their votes forsmall individual favors from politicians. [d. at 21.

., Id. at 15-16.•2Id. at 21-22HId.

seen as a vehicle for the control and allocation of privileges and governmentresources among competing elite factions and their followers.44

Very little elicits praise in Philippine politics. Voters are mobilized toparticipate in elections less by ideology than by selective incentives or threats ofviolence.45 Winning candidates are wealthy and well armed. The proliferation offirearms during elections is meant both to protect candidates and to intimidateopponents. Once in office, politicians recoup the costs of elections and expand theirprivate economic interests through the use of state power and patronage.46

Philippine political parties are parties of the elite, characterized by shiftingmembership and leadership and the absence of ideological differences with otherparties.47 The costs of participating in elections are so high, they prevent manyqualified people from entering public office and it leaves the elite with a free hand inmonopolizing elections. Even as democratic mechanisms and institutions such aspolitical parties may exist, the results of electoral contests often afftrm thedominance and corruption of entrenched powerful groupS.48

The effect of having elite parties dominating politics was the expansion ofan economic system that scarcely benefited the poor. The major political parties didnot attract electoral support by programs or ideology, but rather, through "porkbarrel, patronage, cash, and violence."49

Philippine politics suffered another setback when Ferdinand E. Marcosdeclared martial law on September 21, 1972. Marcos dismanded the existing politicalsystem and attacked other power bases in the country. He centralized the police,arrested elected offtcials and by-passed the courts by resorting to military tribunals totry his opponents,50 oudawed student and intellectual organizations, and co-optedprofessional associations like the Integrated Bar of the Philippines.51 Marcos erected

44 [d. at 49.45 Mark Thompson, Moral Appeals and Collective Action in the 1953 and 1986 Philippine Elections, in OLD TIES

AND NEW SOLIDARITIES:STUDIESON PHILIPPINE COI\IMUNITIES250, 250-251 (Charles J-H Macdonald I.<Guillerm. M. Pesigan eds., 2000).

"'"Id.41 Joel Rocamora, Philippine PoliticIII Parties, Electoral System and Political RefOrm, in PHILIPPINES

INTERNATIONALREVlEW , (Spring 1998).'"' Aquino, supra note 38, at 3.49 DAVID WURFEL, FILIPINOPOLITICS:DEVELOPMENTAND DECAY98 (1988).so Id. at 199.slId. at 207. See also Alex B. Brillantes, Jr., The State o/Philippine Democrag, 31 PHIL.J. PUB. ADM. 404, 407

(1987).

"a one-man constitutional regime which permits him to stay in office indefinitely,with ahnost unlimited powers, under a veneer of parliamentary democracy."52

Philippine politics enjoyed a respite after the ouster of the Marcos regime in1986. Soon thereafter, there was talk of redemocratization-restoring the best ideasand practices from the political past and putting them to good use in the present.53The excitement over the possibility of redemocratization was triggered by the shiftsin traditional power structures that sustained the Marcos dictatorship. One authorexplained that:

The increasing recognItion of the limits of elite-oriented politics and theemergence of mass-based popular democracy is reflected in the realignment ofthe various electoral parties and the opening up of a broader democraticsphere under the Aquino Government. With the ouster of Marcos, thedynamics of the pre-revolution political terrain have been fundamentallyaltered. The political forces sustained by the patronage system of the deposedregime found themselves severely dislocated as supporters of the newcoalition government hurriedly took over. The swift replacement of localexecutives by the Aquino Government threw the local elite network intodisarray. Even traditional power blocks, like the Iglesia ni Kristo, weremarginalizedby the February surge of people power ... 54

The more Opt1m1SUCpredictions about changes in Philippine politicalculture brought about by the fall of the Marcos dictatorship proved unfounded. Astudy of political change in local governments found, among others, that the Aquinogovernment made modest changes towards democracy and not a "decisive reform ofiniquitous social structures. "55

Voting behavior analysis revealed that the poor are too busy trying to makeends meet to take elections seriously. They believed that elections were contaminatedby cheating and were simply contests among those who had little interest in theirplight. Public office was seen as a mechanism to address personal interests and notas a vehicle for public service. These perceptions explained vote-selling, nominal

52 SARA STEINMETZ, DEMOCRATIC TRANSITION AND HUM.>,.NRiGHTS: PERSPECTIVES ON U.S.FOREIGN POLICY 166 (1994).

53 Raul P. de Guzman, Towards Redemocratization of the Political System, in GOVERNMENTAND POLITICSOFnm PHILIPPINES 267-278 (Raul P. de Guzman & Mila A. Reforma eds., 1988).

54 Luzviminda G. Tancangco, The Electoral System and Political Parties in the Philippines, in GOVERNMENTANDPOLITICSOF THE PHILIPPINES77, 110 (Raul P. de Guzman & Mila A. Reforma eds., 1988).

55 Benedict J. Kerkvlet & Resil B. Mojares, Tbemes in TranSItion from Marcos to Aquino: An Introdllction, inFROM MARCOSTO AQUINO: LoCAL PERSPECTIVESON POLITICALTRANSITION IN THE PHILIPPINES 1, 5(Benedict J. Kerkvliet & Resil B. Mojares eds., 1991).

parnclpation in the electoral system, and general indifference towards illegitimategovernments so long as they deliver basic economic needs.56

Ten years after the overthrow of the Marcos revolution, analysts concludedthat Filipino democracy was still in the stage of consolidation. 57 Indeed, subsequentelections, others point out, marked the return of the pre-Marcos days whereoligarchs and political clans ruled.58

Still optimistic, some analysts predicted that because of developments in thestructures, laws and institutions of elections, the 1998 national and local electionspromised change. Developments in technology and the media, as well as theintroduction of new figures suggested that traditional politicians would at least be puton guard. It was hoped that these changes would push Philippine politics into a newperiod of democratization.59

Sadly, traditional power structures reasserted themselves even as newproblems emerged. Shortly after taking power, Estrada reinvigorated the Marcosfamily and its cronies. Political dynasties flourished. There was an infusion of moviestars and celebrities in public office and an increased participation of religious andquasi-religious groups in politics.6o These developments reveal the weak politicalculture of the Filipinos, as Aquino opines:

The Filipino electoral system is flawed because it continues to allow the worstabuses and flagrant excesses of plutocratic, corporatist, crypto-religious andotherwise insidious forces which undermine or frustrate democraticparticipation or genuine interests. It is our view that while the kind ofdemocracy that Filipinos have developed enables them to go through electoralexercises that can be considered open, free, competitive, and so on, it has notnurtured the deeper meaning of economic and social justice that can bringabout a democratic society in the real sense...

The results of the last electoral season are disturbing from a democraticstandpoint. The traditional ills of vote-buying, voter intimidation, "flyingvoters", cheating, and depredations of political dynasties and warlords weresupplemented by inordinate doses of "star-ization", quasi-religious

56 Id at 7-8.57 Abueva, Jnpra note 35, at 48.58 Eva-Lotta E. Hedman, Beyond Bf!Jcott: The Philippine Left and Electoral PoliticJ After 1986, in THE

REVOLUTION FALTERS: THE LEFT IN PHILIPPINE POLI11CS AFTER 1986 83 (patricio N. Abinales ed., 1996).59 Eric Gutierrez, Retail Politics, Term LimitJ and New Player.r: Change and Modernization in Philippine Politics, in

PHILIPPINES INTERNATIONAL REVIEW 16-20 (Spring 1998).60 Aquino, Jupra note 38, at 16-23.

manipulations, excessive mudslinging, VICIOUS propaganda and otherconditions that made one wonder what electoral competition really means.61

Indeed, the elite-dominated political system is likened to a fiesta wherepolitical leaders engage in grandstanding as a form of entertainment for the masses.Others suggest that the success of celebrities in politics is a form of retaliationagainst the insincerity of the politicians who "don't really mean what they say,anyway."62 Today, the entertainment industry has become an important entry pointfor politics, so that actors and actresses and media personalities consider politics asan alternative career. Simbulan places the blame on politicians who have madepublic office a means for personal enrichment. Revulsion towards traditionalpoliticians makes the voters turn to the celebrities who "though not intellectuallyqualified, will at least give them professional entertainment."63

Disgust over electoral politics can explain celebrity success or the buyingand selling of votes. The involvement of religious groups could be viewed as amodification of the rules of the elections. Helpless against the pointlessness ofelections, voters may be looking for guidance from no less than God. Religious andquasi-religious groups are happy to oblige by endorsing candidates. Aspirants topublic office routinely seek church support in the course of their electioncampaign.64

The party system ... was, as it had been since 1907, almost destitute ofnationalism; it was since 1946, guided by no shred of social ethics exceptopportunism. It almost invariably corrupted honorable men and women,making the honest dishonest. It twisted civic values; it miseducated the youth;it was a dark and impenetrable screen that concealed every long-term nationalinterest from the electorate.

61 [d. at 24.62 See Roland G. Simbulan, The Century that Nurtured Filipinos Toward Nationhood, 2000, at http://www.

boondocksnet.com/ sctexts/ simbulanOOa.html.63 [d. One might apply Scott's discourse on "everyday forms of resistance" in the case of Philippine

elections. Scott posited that peasant groups defend their interests "between revolts", avoiding directconfrontation with authority or with elite norms. He suggested that an analysis of folk culture would indicatethe extent to which marginalized groups genuinely accept the social order dictated by the elite. This acceptanceis discerned from an analysis of everything from conversations to humor. See JAMESC. SCOTI, WEAPONSOFTHE WEAK: EVERYDAYFORMSOF PEASANTREsISTANCE28 (1985). While elections are not everydayoccurrences, the election of "incompetent" candidates into office could be viewed as popular repudiation of thesocial order imposed by the Philippine State. Filipinos debase elections by electing those "not intellectuallyqualified"-to use Simbulan's words- to protest elite hegemonic control of the social order.

64 Aquino, supra note 38, at 21-23.

Worst of all, the party system was a consistent failure at its social function: toinstruct the community on political issues and structure public opinion so asto produce electoral decisions about the direction of the national life, as aguide for government. The system allowed the people only the knowledge,after the elections were over, that this candidate won and that one lost ... 65

Again, however, it may be argued that these are the products of Philippinepolitical culture; they are the merely effects of traditional politics. Still, we have noadequate explanation for the factors that shaped Philippine political culture. Itbecomes essential to ask how this culture was shaped.

To understand the roots of political participation in the Philippines, it isnecessary to scan the country's history. Spanish documentation of contact withindigenous populations showed the existence of social stratification-a slave classwith fewer privileges co-existed with groups that enjoyed economic and politicalprivileges.66 It has been noted, however, that one entered the slave class often as apenalty for an offense and that one could, in essence, graduate from this status.Slaves were not chattel; they were regarded as members of the family, albeit inferiorones. Some went so far as to say that their servitude was essentially "benign".67

Families were organized into "barangays" that were headed by a "datu"whose power to rule was determined by lineage and maintained by wealth-basicallythrough the acquisition of slaves and the display of physical prowess. These datuswere part of a loose federation of chiefs bound by ties of personal allegiance. Thehead of such a chiefdom exercised authority over supporting chiefs whose primacystemmed from his ability to control local and foreign trade and to redistribute luxurygoods.68 However, while some datus tended to be autocratic, there is nothing toindicate that this was the general rule.69 The datus did not make up an unproductive

652 ONOFRE D.CORPUZ, THE ROOTSOF THE FILIPINO NATION 572-573 (1989).66 For a synthesis and analysis of the data on the barangay .ree WILLIAM HENRY SCOTI, BAAANGAY:

SIXTEENTH-CENTURYPHILIPPINECULTUREAND SOCIETY(1994).67 Jose V. Abueva, Philippine Ideologies and National Detdopment, in GOVERNMENT AND POLITICSOF THE

PHILIPPINES 18, 23 (Raul P. de Guzman & Mila A. Reforma eds., 1988). Barangay stratification was temperedby kinship ties and bore little resemblance to European models of class distinction. See DAVlD R.STURTEVANT,POPULAR UPRISINGS IN THE PHILIPPINES, 1840-1940 23 (1976). See a/JO WILLIAM HENRYSCOTf, SLAVERYIN TIlE PHILIPPINES 11-17 (1991) (discussing the social conditions and the absence ofharshness in the treatment of "slaves" in the Philippines).

68 SCOTI, .rupra note 66, at 129.69 Id.

leisure class as it was necessary for them to display leadership skills.?o They did notexercise control over agricultural lands beyond settling disputes thereon'?! Theywere entrusted with the duty to care for their people.

In the Tagalog region, the datus were regarded as governors andadministrators tasked to look after the interests of their people. They were not kingsbut "rulers", more closely associated widl. knights.?2 They did not arrogate arablelands to themselves because lands were considered communal properties.?3

The Philippine Islands were colonized by Spain when she accidentallylanded on its shores in 1521. Spain assimilated most of the scattered barangaysunder a centralized system, working with local leaders who enforced the colonizer'swill. These local bosses gained prestige serving the colonial master for personalgain.?4

Spain introduced elections to the Philippines. Concerned with producing agovernable colony, she used municipal elections for the wrong reason-to imposeorder over local rivalries by throwing their support behind one of the candidates.Instead of infusing politics with public ethos, elections heightened factional rivalries,subdely teaching Filipinos to use government for personal ends and not for publicservice.?5

Filipinos waged a successful revolution against Spain ending her three-century reign in 1898. But even as the Filipinos declared their independence, Spainsold the Philippine Islands to the United States, which was then establishing itself asa global power. Unlike Spain, the United States managed to quash the revolutionaryforces in the Philippines in a war that resembled the annihilation of indigenouspeoples in the Americas.?6 The United States then attempted to distinguish itself

70 !d. at 130-131.71 Id.72 Id. at 221.73 Id. at 229.74 Abueva, sHjJra note 67, at 27.75 Ruby R. Paredes, Introduction: The Paradox uf Philippine Colonial Democra,y, in PHIUPPINE COLONIAL

DEMOCRACY1, 7 (Ruby R. Paredes ed., 1989). Under Spain's tutelage, Filipinos were trained to use, not servegovernment. Public officials learned that elections were a charade, and effective only as a means to promoteparticular interests. See Glenn A. May, Gri,' Ritual and Political &ali(y: Munidpal ElectionJ in the lAte NineteenthCentury, in PHIUPPINE COWNIAL DEMOCRACY13, 36 (Ruby R Paredes ed., 1989).

76 For accounts of the Philippine war with the United States, see JOHN M. GATES, SCHOOLBOOKSANDKRAGS:THE UNITED STATESARMYIN THE PHIUPPINES, 1898-1902 (1973); RUSSELLROTH, MUDDYGLORY:AMERICA'S "INDIAN WARS" IN THE PHIUPPINES, 1899-1935 (1981); STUART CREIGHTON MILLER,BENEVOLENT AsSIMILATION: THE AMERICAN CONQUEST OF THE PHIUPPINES, 1899-1903 (1982); andBRIAN MCALUSTERLINN, THE U.S. ARMYAND COUNTERINSURGENCYIN THE PHIUPPINE WAR, 1899-1902(1989).

from other colonizers by allegedly preparing the Filipinos for self-government.Instead, American colonial officials exploited the Filipinos' history of patronagepolitics. Seeking to diffuse pro-independence sentiments, they worked with theeducated elite, who then advocated an end to Filipino resistance to American rule.?7Like Spain, the United States subverted the popular will by allowing the colony toelect leaders who, however, could only exercise power with the colonizers' consent.?8

The islands' ftrst national elections saw a recently enfranchised maleelectorate-some 1.4 per cent of the total population-voting in the NationalAssembly in 1907. By making suffrage conditional upon literacy, property andlanguage qualiftcations, the American colonial administration effectivelyenfranchised an electorate that "closely approximated the small group ofFilipinos who had comprised the principalias in the pueblos during the Spanishregime". Over time, however, formal legislation and other dynamicscontributed to the expansion of electoral participation (both in absolute andrelative terms) under the American colonial regime. ... However, whileexpanding beyond the 1.4 per cent of the total population who voted in theftrst national elections, suffrage remained an exclusive privilege exercised by amere 14 per cent of all colonial subjects at the end of the American period,79

Throughout the post-war period, a national oligarchy "essentially recruitedfrom families of long standing economic wealth or political dominance or both" hascontinued to define the nature and direction of electoral politics as large landowners,commercial magnates, and their scions have filled both houses of Congress as well asthe offices of municipal halls and provincial capitols throughout the archipelago.8o

Significantly, the colonial lineages of this political class endowed it withcontrol over a combination of clientelist structures, coercive mechanisms andmonetary resources, which facilitated sustained oligarchic predominance inPhilippine electoral politics. 81

These circumstances produced what Anderson calls a malignant form ofcolonial-era e1ectoralism. The restrictions on the right to vote limited politicalparticipation to those with a command of English or Spanish and those withsubstantial property.82

77 Paredes, supra note 75, at 8.78 Id. at 7.79 Eva-Lotta E. Hedman & John T. Side!, Troniformirmo and Political Democracy, in PHILIPPINE POLITICS

AND SOCIETY IN THE TWENTIETH CENTURY: COLONIAL LEGACIES, POST-COLONIAL 'fRAJECroRIES 15(2000).

80 !d. at 15.81 Id. at 16.82 Benedict Anderson, Ekctions in Southeast Asia, in THE SPECTRE OF COMPARISONS: NATIONALISM,

SOUTHEAST ASIA AND THE WORLD 265, 273 (1998).

Thus, despite the introduction of democratic institutions, the colonizersfound themselves in an alliance with the Filipino landowning elite thus retaining thepolitics and centralized administration conducted under the Spanish regime.83 UnderAmerican rule, the poor remained "vulnerable to manipulation, or neglect by theruling elite,,,84and because of their dependency and subsistence, they could not exert

'£1 Ii 85any ill uence on po cy.

When the Philippines obtained independence from the United States in1946, little changed as most of the citizens in the provinces remained "poorlyintegrated into the functioning of interest groups, parties, the Congress, and thebureaucracy." They were unable to see their individual problems and interests interms of policy changes and could "neither assert the necessary policy demands onlegislators of administrators, nor provide adequately the required public scrutiny andsupport needed by a well-functioning democracy."86

The political institutions established during the American period could noteradicate the prevailing social inequities. These structures were dominated by arelatively small number of public officials and leaders who came from the elite. Theypreserved their status and privileges and promoted the interests of the elite classthrough elections that were marred with the use of "guns, goons and gold".Personalities, turncoatism, and indistinguishable political parties characterized theparty system. Dominated by the oligarchy, Congress failed to pass laws to improvethe condition of the' poor.8? American colonial experience helped develop theoligarchy, but not the state.88

In short, the introduction of "democratic institutions" was tainted with theulterior motives of the colonizers. As such, they alienated majority of the Filipinosfrom the official lanes of power. Spanish elections were far from democratic:

[Ilhe process of selecting these officials began with a highly restrictiveelection, the results of which were either approved or rejected by the Spanishgovernor general, the top regional colonial official. Supervised by friars andother colonial officials, participation was carefully restricted to members of

83 Abueva, supra note 67, at 45.84 Id. at 46.85 Id.86 Id. at 53.87 De Guzman, supra note 53, at 268-269. For analyses of elite control and domination of Philippine

politics, see Milagros C. Guerrero, The Provincial and Municipal Elites ofu!:(!ln During tbe Revolution, 1898-1902, inPHILIPPINE SOCIALHISTORY: GLOBALTRADE AND LoCAL TRANSFORMATION155-190 (1982) and BenedictAnderson, Cacique DemOt'f'CIryin the Pbilippines: Origins and Dreams, in THE SPECTRE OF COMPARISONS:NATIONALISM,SOUTHEASTASIAANDTHE WORLD 192-226 (19?8).

88 PAUL D. HUTCHCROFT,BOOTY CAPITALISM:THE POLITICSOF BANKING IN THE PHILIPPINES26-27(1998).

indigenous communities that had previously held colonial office, collectivelyreferred to as the principalia. 89

The Americans, on the other hand, carefully orchestrated the introductionof national political institutions "to ensure that national political power would belongexclusively to members of the elite, who, as the main beneficiaries of U.S. colonialpolicies, were also expected to be the most reliable guarantors of U.S. interest in thePhilippines."90

Certainly, the colonizers tainted the electoral process with their motives andthe elite took advantage of the structures that were intended to benefit them. Littleis said about how Filipinos reacted to the system that was introduced to supplantindigenous politics. Is it possible that colonizers and their collaborators have soeffectively rigged the system that those enfranchised can never determine theoutcome of electoral contests? Is it possible that voters use these alien systems tocarry out their preferences despite the fact that the system was skewed against their

ill-

w .

There is an apparent consensus as to how the colonial experience facilitatedelite domination of politics, but little is said about the influence of pre-conquestpower structures on the development of Philippine political culture.

The domination of the landowning elite and the predominance of patron-client relations are usually blamed for the state of politics in the Philippines. Largelyunchallenged, these views are now under closer scrutiny. Sidel, among others, pointsto the legacy of the American colonial era and role of violence and coercion asfactors that explain Philippine politicS.91

Sidel takes exception to the view that holds that patron-client relationsstructure Philippine society and politics. Under this framework, individuals ofunequal wealth, status, and power are bound in a mutually beneficial relationship.The patron uses his own influence and resources to provide for the protection andmaterial welfare of his lower status client and his family. The client reciprocates byoffering general support and assistance including personal services to the patron.92Sidel's objection to this framework is that it cannot explain the coercive pressuressuch as fraud and violence that characterize Philippines elections.93 If the

" JENNIFER CONROY FRANCO, CAMPAIGNING FOR DEJ\fOCRACY: GRASSROOTS CITIZENSHIPMOVEMENTS, LESS-THAN DEMOCRATIC ELECTIONS, AND REGIME TRANSITION IN THE PHILIPPINES 68(2000)

<)() [d. at 79.

91 JOHN T. SIDEL, CAPITAL, COERCION, AND CRlME: BOSSISM IN THE PHILIPPINES 4 (1999).92 [d. at 7.9' [d. at 9.

relationship between patron and client was symbiotic, why are fraud and violence soprominent in Philippine elections?

Sidel also takes exception with the view that the Philippines is a weak statedominated by an oligarchy with roots in large landholdings. He claims that manyentrenched politicians derived wealth from state resources and foreign capital, ratherthan private land ownership. In fact, he argues that the accumulation of landfollows, and does not precede the assumption to public office.94

Sidel proffers an alternative explanation for the problems of Philippinepolitics by looking back to pre-conquest Philippines. He points out that even then,power relations featured the prominence of local "strong men". These "datus"maintained local monopolies on coercion and taxation through violence and theaccumulation of personal followings. They maintained power and earned respect byproviding for material needs of, and projecting prowess to, their followers.95

The colonization of the Philippines by both Spain and the United Statespreserved this brand of leadership with slight modifications. Spain shifted the basisof strongman rule from military prowess to state resources and private capital. TheUnited States expanded private control over the local coercive and extractiveagencies "upward" by subordinating the national state apparatus to provincial-level,and national-level, elected officials. In short:

State formation in the Philippines after the precolonial era permitted thesurvival of private, personal control over the instruments of coercion andtaxation. Successive phases of state formation supplanted the charismaticbasis of local strongman authority with new bases of local power--derivativeand discretionary enforcement of the law and accumulation of land andcapital-and, in the American period, extended private control to include theprovincial and national agencies of an emerging state apparatus.96

Sidel argues that the subordination of "an extremely underdeveloped stateapparatus to elected municipal, provincial, and national officials in the Americancolony" facilitated the emergence of "bossism" in the archipelago. The legacies ofcolonial rule facilitated the emergence and entrenchment of small-town bosses,provincial "warlords", and authoritarian presidents by providing mechanisms forprivate monopolization of these resources and prerogatives of the state.97

94Id. at 11.95 !d. at 13.96 Id. at 18.97 Id. Sidel's observations on the application of the patron-client framework are not new. See Alfred

McCoy, The Re.rtoration of Planter Pour in La CarMa City, in FROM MARCOSTO AQUINO; LoCAL PERSPECTIVESON POUTICAL TRANSITIONIN THE PHIUPPINES 105-144 (Benedict]. Kerkvliet & Resil B. Moares eds. 1991).

Looking further back to pre-conquest Philippines may do more than explainthe emergence and resilience of local bosses in Philippine politics. It may alsoexplain most of the features of Philippine political culture.

As explained earlier, pre-conquest communities were not consolidated intoa centralized form of government. At best, there were loose federations ofbarangays. Barangays had highly decentralized power bases and weak regionalintegration, with relations of political subjugation maintained primarily throughpersonal alliance and clientage ties maintained by continuous gift giving,ceremonialism, and the display of prestige.98

Junker explains this relatively weak centralized structure of Philippinechiefdoms and the highly unstable nature of regional political integration:

[Al high degree of geographic fragmentation and ethnic and linguistic diversitywas likely to have discouraged the long-term formation of large-scale,centralized polities, since the energy investment of militaristic conquest andlong-distance administrative rule would have been significandy greater than inother regions of complex society formation. Comparatively abundantagricultural land, but relatively low population densities, would tend todeemphasize the formation of territorially based political units, but insteaddefine political authority in terms of control over labor and tributary resources(i.e. people) who could augment the agricultural surplus and wealth of aparticular chief. "Clients" and "allies" therefore had to be attracted andpolitical loyalties maintained through constant gift giving and chieflysponsored ritual, which were in turn dependent on a chiefs ability to procurewealth objects through local luxury good production and foreign trade ...

The alliance-building success of Philippine chiefs was not easily transferableintergenerationally because of a number of cultural and social factors. Theseinclude nonunilineal descent systems, a high degree of achievement-basedsocial mobility, and the common practice of polygamy, which were alsosignificant elements in the often chaotic process of kingly succession in morecomplex Southeast Asian polities. The fragility of political alliance and lineagenetworks coupled with the difficulties of intergenerational inheritance ofpolitical authority likely magnified the type of competitive interactions forlabor and resources among elites both within polities and between peerpolities that ultimately result in reconfiguration of the political landscape. Thispolitical cycling, or oscillatory expansion and contraction of polities, would be

98 Prior to the arrival of the Spaniards, only two settlements in the Philippines were on the verge ofconsolidating into suprasettlements. Islamic influence is credited for stimulating greater socio-politicalintegration creating the suprabarangays of Cebu and Manila. Both consisted of several large barangays withtheir own personalistic leaders, although one chief ranked about the other in these loose federations. This "firstamong equals" provided wise counsel, military leadership, and respect for the political rights of the other datusand could mobilize troops from within the suprabarangay and even adjoining settlements in times of crises. SeeRobert R. Reed, Colonial Manila: The Context of Hispanic Urbanism and ProaiSS of MorphogeneJir, University ofCalifomia Publications in Geography 3-6 (1978).

expected to occur with greatest frequency in societies with decentralized andweakly integrated political structures and in a political landscape characterizedby complex societies of widely varying scale and complexity such as [the]island[s] [of] Southeast Asia.99

[T]he dyadic vertical relations between leader and subordinate would likely beof a highly personal nature as in the Sulu political structure, with the strengthand scope of political authority dependent on the ability of individual leadersto transform ascribed status into de facto political power through successfulmanipulation of these alliance networks. That this is the case is suggested bythe observations of Loraca that "freemen" or "commoners" are not obligatedto serve a specific chieftain but rather become allied to particular politicalleaders through the establishment of mutually beneficial economic ties ....Subordinates or "clients" of a chiefly patron held a realistic expectation thatservice to the chief in warfare, maritime commerce, and production activitieswould result in a share of the profits obtained through tribute collection,raiding, and trading expeditions. Dissatisfaction with the benefits of such analliance or harsh treatment by a chief. .. frequently resulted in shifting alliances,with commoners (and sometimes even slaves) attaching themselves to a morebenevolent patron .... 100

Thus while a person may attain the title of datu generally though blood,retention of the title required individual effort in attracting followers and alliance-building expertise. When the chief takes the title of datu, "others come to him andadd credit and esteem to him, and make him a leade'r". Personal ties of reciprocity"were the only means of bringing individuals sphere of influence, and alliance groupmembership was the only effective locus of political action."101

Thus, it would seem that power relations in pre-conquest Philippines wereshaped by geography and ethnic diversity. Prudence dictated allegiance amongfactions rather than the consolidation of a political base. Pageantry played animportant role in politics as a means to attract allies. Leadership demanded displays

99 LAURA LEE JUNKER, RAIDING, TRADING, FEASTING: THE POLITICAL ECONOMY OF PHILIPPINECHIEFDOMS 83-84 (2000).

100 Id. at 76.101 !d. at 77.

of power through ceremonies. By necessity, these alliances were fragile and tendedto expand or construct depending on the leaders' ability to maintain 10yalty.102

Even with a cursory look at the political developments then, one candiscern the origins of patron-client ties. These alliance-building techniques showwhy party loyalties were discontinuous, if at all discernible. They explain theimportance of charisma and personality in politics. They explain elements of showbusiness-the song and dance routine during campaign sorties, and the involvementof celebrities-and the role of dole-outs during elections.

A leader became popular because of the ability to protect the interests ofthe people (the foundation of patron-client relations). These leaders lost theallegiance of people because of their failure to deliver benefits (the precursor ofturncoatism). Thus, leaders had to perpetually maintain loyalty (dole-outs, cronyism,charisma) as their leadership was under constant scrutiny. These leaders wereaccountable and rejected when d1eycould no longer deliver.

Evidendy there are historical bases for bossism and traditional politics in thePhilippines. Sidel may have provided the explanation for the reason behindcorruption in public office. He explains why officials use public office for personalenrichment. On the other hand, Junker may have explained why Filipinos vote theway they do.

When candidates for public office give out money during their campaigns,are they exploiting poverty or are they carrying out an age-old function of winningthe trust of the people? Are they merely offering a promise of things to come?When candidates sing and dance, is it part of the pageantry and ceremonialism thatJunker was speaking about? Are today's political contests the equivalent of ourancestors' lavish displays of political prowess and attempts to win allies?103

102 Others suggest that the practice persisted for centuries and was a regional feature and not unique tothe Philippines. In his study of Southeast Asian peasantry at the turn of the nineteenth century, Elson arguesthat politics was an "often tense and fragile set of arrangements" between central and local bases of power.Power lay with those who could demand the greater following and control of manpower and prevent othersfrom establishing "potentially competitive groupings of vertical alliances." A patron-ruler's prosperitydepended on the ability to enhance following by marriage, bribes, threats, among others. ThroughoutSoutheast Asia, this competition resulted in "fluidity within the population as people transferred their allegiancefrom one patron to another." R.E. ELSON, THE END OF THE PEASANTRYIN SOUTHEASTASIA: A SOCIALANDECONOMICHISTORYOF PEASANTI1VELIHOOD, 1800-1990s 24-25 (1997).

103 As Junker explains, pre-conquest Filipinos staged feasts to allow the chiefs "to engage in status-enhancing displays of wealth aimed at underscoring their resource mobilization abilities, their skills in politicalalliance building through generous gift exchange, and their superior ritual potency." Je. Laura Lee Junker,Competitiz'e Fea.fting in Sixteenth-century Pbilippines, in REFLECTIONSON PHILIPPINE CULTURE AND SOCIETY:FESTSCHRIFTIN HONOR OF WILLIAMHENRY SCOTT54,66 Oesus T. Peralta ed., 2001).

Perhaps this is why kingship values and group rivalry undermine theelectoral system in the Philippines. It is possible that patronage and personalnetworks decide the election results more than "abstract political beliefs."lo4 Inaddition to all the other reasons used to explain the state of Philippine politics, weshould entertain the idea that Philippine voter behavior today is the result of theassimilation of our ancient alliance-building processes with the electoral templateimposed by the colonizers.

Perhaps Filipinos practice a form of "folk democracy" where thedemocratic institutions introduced by the West are now the formal mechanisms bywhich Filipinos build political alliances.lOS In effect, "traditional politics" is thetradition of politics in this country. lOGPhilippine politics today is less about what thecolonizers did to the Filipinos, but what the Filipinos did with the colonizer'sinstitutions to preserve their own culture.

Coercion and violence may sustain the resilience of bossism in Philippinepolitics, but to some extent it is perfected by popular complicity. The former doesnot succeed without the latter.l07

In other words, the implantation of formal structures of democracy in thePhilippines will not determine its strength. As Putzel argues, the strength of ademocracy is determined by "informal institutions" that govern behavior in the state,society, and economy. These are the ways in which human beings have conductednorms of behavior, conventions, or what is commonly called "culture". These are

104 See Diana J. Mendoza, Understanding the Philippine Political Culture, in POLITICS & GOVERNANCE:THEORYAND P&\CTICE IN THE PHILIPPINE CONTEXT 19, 34 (1999).

105 I use "folk democracy" in the same way that Filipinos are said to practice "folk Christianity" in thePhilippines, which is the blend of indigenous ancient practices and Christian religion. See ROSARIOM. CORTES,et aI., TI-IE FILIPINO SAGA: HISTORY AS SOCIALCHANGE 45 (2000). See afro JOHN LEDDY PHELAN, THEHlSI'ANIZ.\1lON OF THE PHILIPPINES 78-81 (1959) (discussing attempts by Spanish authorities to eradicatepagan practices, and how Filipino folk customs were instead gradually, if not superficially, Christianized), andD.WID JOEL STEINBERG, THE PHILIPPINES: A SINGULAR AND A PLUR.-\LPLACE 79-89 (3'" ed., 1994)(discussing how Filipinos selectively grafted features of Roman Catholicism and Islam onto their owntraditions).

t06 There are other explanations for the state of Philippine democracy suggested by other authors. Theycite poverty, hierarchy in decision-making, extreme familialism, a weak sense of public good, and the limiteddiscourse on democracy as reasons for the Philippines' dysfunctional democracy. See Fernando N. Zialcita,Bamm and BridgeJ tll Democratic Cui lure, in DEMOC&\CY& CITIZENSHIPIN FILIPINO POLITICALCULTURE42-49(Maria Serena I. Diokno ed., 1997). What I am suggesting is that Philippine politics is historically grounded onalliance-building practices that are antithetical to electoral process introduced by her colonizers. Otherproblems such as poverty compound the situation and make it harder for Filipinos to change their electoralculture.

107 The clearest example of the primacy of "personality politics" in the Philippines is no less than JosephEstrada's election as President in 1998. When he ran for President, Estrada presented neither a program norplatform of government. He ran on punch lines and still won with 40% of the vote, six million votes morethan his closest rival. See Aquino, Jupra note 38, at 7.

"more impervious to deliberate policies" and "connect the past with the present andfuture."108

Recognizing the ills of traditional politics, policy-makers took advantage ofan opportunity to introduce significant changes in the system by resorting to the law.At the very-least, Filipinos have demonstrated a capacity to recognize the problemsin their system of government and the potential to change them.

After the collapse of the Marcos dictatorship, Filipinos ratified a newConstitution that contains a ban on political dynastieslo9 and provisions onstrengthening local autonomy.ll0 People were given the power to legislate directlywhen Congress fails to pass the laws that they demand,111or to remove officialsfrom office.ll2 The Constitution also enshrined the principle of democratization byrecognizing the right of citizens to participation.l13

The changes introduced in the Constitution go beyond elections andrepresentative government. They are designed to address specific issues that havehobbled effective governance in the Philippines. Significantly, the changes weredesigned to democratize politics circumventing elite control of the national and local

108 James Putzel, Sumw! of an /mpeifu.t Derm::rat:y in the Philippines, in THE REsILIENCE OF DEMOCRACY:PERsISTENTPRACI1CE,DuRABLE IDEA 198 (peter Burnell & Peter Calvert eels., 1999). Putzel continues:

"Thus in the Philippines we can examine why, despite the formal rules of democracy, polities has longbeen characterized by shifting coalitions of clan power, appeals to regionally based language groups, theexchange of votes for favours, the appointment of officials or granting of public contracts not on the basis ofqualifications to get the job done but on connections to those in positions of power, with all these generallyperceived as acceptable practices." [d. at 201.

109 CoNsr. art. IT, sec. 26.110 CoNsr. art. IT, sec. 25, and art. X.111 CoNsr. art. VI, sees. 1, 32.112 CONST. art. X, sec. 3.IIlCONST. artXllI, sees. 15-16 provides:

Sec. 15. The State shall respect the role of independent people's organizations to enable the people topursue and protect, within the democratic framewOlk, their legitimate and collective interests andaspirations through peaceful and lawful means.

People's organizations are booafide associations of citizens with demonstrated capacity to promote thepublic interest and with identifiable leadership, membership, and structure.

Sec. 16. The right of the people and their organizations to effective and reasonable participation at alllevels of social, political and economic decision-making shall not be abridged. the State shall, by law,facilitate the establishment of adequate consultation and mechanisms.

legislatures. Even more significant is the fact that the Constitutional Commissionwas "predominandy elitist" in composition.114

Pursuant to these mandates, Congress enacted two measures that desetvescrutiny because they have a direct bearing on public office monopoly. These are theLocal Government Code's provisions on local sectoral representation and the Party-List System Act. This study focuses on the debates of the ConstitutionalCommission to illustrate the intentions of those who drafted dIe 1987 Constitution,and hopefully, to help bring the political discourse back to dIe drive towardsdemocratization in the Philippines.

The Constitution provides that "Legislative bodies of local governmentsshall have sectoral representation as may be prescribed by law."115 Pursuant to thismandate, Congress enacted the Local Government Code of 1991116and provided forthe election of sectoral representatives to sit in local legislative bodies.11?

Local sectoral representation stirred discussion within the ConstitutionalCommission, triggered by an attempt by Commissioner Davide to delete the entiremechanism and to replace it with a system of proportional representation sinlilar tothe one adopted for the national legislature. Commissioner Davide was under theimpression that the Committee on Local Governments intended "only to carry overto the local legislative body sectoral representation under the party list systemmandated in Section 5 of the proposed Article on the Legislative/NationalAssembly."118

Other Commissioners could not understand why sectoral representationshould be applied to local legislativebodies. Commissioner Monsod was adamant:

MR. MONSOD. The reason for my asking is-l would like to raise the pointof whether proportional representation which is really the party list systemlends itself to application in small bodies like those because I remember thediscussion on the Senate where we were talking about 24 Members of which12 would be elected at anyone time, assuming 6 years and 3 years. But whenwe put a slate of eight people to run for the municipal council, under a partylist system we are sure that not all of those eight will be elected, unlike in a

11. Wilfreda V. Villacorta, Tbe Dynamics and Processes ufWriting tbe 1987 Constitlltion, 32 PHIL..I. PUB. ADM.299,308 (1988).

,,; CONST., art X, see. 9.11(, Rep. Act No. 7160 (1991).117 Rep. AetNa. 7160 (1991), see. 41 (c).118 3 RECORDS OF THE CONSTITUTIONAL COMMISSION 403 (Aug. 16, 1986).

system that we have installed in the Article on the Legislative/NationalAssembly where there is a limit of about 50 seats and anybody who gets morethan 20 percent of the votes can have all the lineup elected. With this we aresure that not all of them will be elected because it is strictly proportional, and Iam not sure that the party list system lends itself well to a small body of eightlike this.1l9

In response, Commissioner Aquino eloquently presented the rationale forthe inclusion of sectoral representation at the local goverrunent level:

MS. AQUINO. I also object to the deletion of sectoral representationbecause the pressing imperative of democratizing the political process in thelocal governments by way of sectoral representation is more than it would bein the national government. We have gone through a lot of public hearingsand there is an overwhelming clamor for sectoral representation in the localgovernment where the people believe that their felt needs are more adeguatelyresponded to by the local governments. Besides, I have serious doubts aboutthe feasibilityof the application of the party system in the local governments,Madam President.12o

MR. MONSOD. I believe that we had a very lengthy discussion on the floorregarding the concept of permanent seats. Here we are talking about an eight-man council and I do not know what is in the mind of the Committee but,certainly, the members are probably thinking about two or three reservedseats; about the municipality where universal and egual suffrage is onlyapplicable to five seats out of the eight; and about a situation where there arepermanent sectoral seats and where some people who belong to favoredsectors would again have two votes, and the rest have only one.121

Commissioner Sarmiento interjected his support for local sectoralrepresentation by claiming that it "will bolster the claims or the statements ofCommissioner Davide about people's power. As a matter of fact, this willsupplement the mechanisms of recall, initiative and referendum."l22

Commissioner Davide withdrew his proposed amendment, butCommissioner Monsod reasserted it as his own. He pointed out that local sectoralrepresentation "is difficult to operationalize and that it is against the system of

1193 RECORDS OF1HE CONSTITUTIONAL COMMISSION 404 (Aug. 16, 1986).12U Id.121 Id.122 Id.

universal and equal suffrage."123 Commissioner Colayco supported Monsod'sposition and then the following exchange took place:

MR.. ffilAYOO .... I support the stand of Commissioner Monsod becausethe legislative bodies in the local level will deal only with local problems. I donot see how the sectoral area or sectoral representative can be of any specialhelp in protecting the rights of the parties represented by them. For thatreason, therefore, I do not see any justification for Section 4....

MS. AQUINO. Madam President I object to the motion of CommissionerMonsod and proceed precisely from the argument of Commissioner Colayco.Regional and other local governments have specific idiosyncracies that areaddressed more decisively by their particular legislative assemblies. Thesewould require specific attention to the particular configuration of theirproblem. When we respect the idiosyncracies of the region, there is likewise anecessity to consider that in certain regions, there are some critical problemsthat can be best addressed by a definitive configuration in their legislativeassembly ....

MR.. OPLE. Madam President, I object as well to the proposed amendmentthat would delete sectoral representation in local legislative bodies for thesimple reason that this is already an earned right. May I volunteer theinformation that right now in the municipal councils or sangguniang bayan allover the country, the farmers and the workers and also the youth are alreadyrepresented. There are usually eight (8) seats in the municipal council orsangguniang bayan, and in the sangguniang panlungsod. In addition to that,these are elected within their political subdivision and each council usually hasa member representing the youth sector. Yes, all the barangay associations inthe town are represented through the Chairman of the Association ofBarangay Captains, and the youth are represented. Optionally, the workers ofthe trade union may also be represented in the case of the more economicallyadvanced municipalities where there are industries and, therefore, tradeunions. Therefore, if we now delete sectoral representation in local bodiesthen this is a step backwards from what these mass organizations alreadyenjoyed under the old Constitution.

I appeal to the Committee to preserve the principle of sectoral representationin local bodies because it is already a working principle which has been provenby experience to be useful and to be desirable for a community ....

MR.. COlA YOO. Weare speaking here of reserved seats, in other words toguarantee that these sectoral areas shall be insured of their representation. Butin the local bodies, these sectoral areas or persons can fight it out on an equalbasis. Everybody knows everybody in a municipality. The idea of sectoralrepresentation was important in the higher provincial and national levelsbecause they are at a big disadvantage. Here, they do not need this protection.

Secondly, what are the issues covered by the legislation on local matters?Licenses probably, minor violations, that is all. The personal rights as a socialmember of a unit are not involved in local legislation. Madam President, I donot think there is need, really, for providing special sectoral representation inthe municipal level at least.

MR. OPLE. I just wanted to point out that the range of lawmaking duties atthe municipal level is much wider than what Commissioner Colayco hadsuggested. There are social and economic development programs covered byappropriate legislation at the municipal level and it is in this respect thatsectoral representation becomes very important. There are problems offishermen and of farmers in a locality. There are the problems of marketvendors and peace and order. If the level of peace in a remote barangay issubstandard, then they cannot go out to plant; they cannot harvest when therice ripens. So, there is a whole range of legislative services now beingprovided by the sangguniang bayan, Madam President .... 124

MR. SARMIENTO. . .. I have been to a number of places and I observedthat many of those in the bodies, legislative bodies, belong to the middle andupper classes of our society. In the province where I come from, the councilis occupied by those who belong to the middle class or upper class. I,therefore, support that the marginal sectors be represented in the bodies sothat their needs and grievances will have a chance to be heard.125

Five Commissioners voted to delete local sectoral representation, while 19voted to retain it.126

The proponents of local sectoral representation were clearly in favor ofdemocratizing local governance. They recognized the elite nature of local politicsand were of the opinion that local interest groups have historically been placed at adisadvantage.

Those opposed to the idea of sectoral representation were concerned withthe difficulties of implementing the system or were under the impression thatelections are essentially fair, and that one candidate has an equal chance of winningin an elective office.

The members of the Commission who supported sectoral representationdemonstrated their ability to assess the state of democratic politics at the local level.Their own experience showed that electoral exercises are skewed in favor of themiddle and upper classes. The proponents, therefore, suggested that the law should

1243 RECORDS OF THE CONSIl1UTION.\L COMMISSION 405 (Aug. 16, 1986).125 3 RECORDS OF THE CONSTITUTIONAL COMMISSION 406 (Aug. 16, 1986).125 Id126 !d.

be changed to accommodate the interests of local interest groups who do not havethe means to secure a seat in a legislative body.

Pursuant to the provisions of the Constitution, Congress incorporated localsectoral representation in the Local Government Code of 1991. The Code in partprovides that:

In addition thereto, there shall be one (1) sectoral representative from thewomen, one (1) from the workers, and one (1) from any of the followingsectors: the urban poor, indigenous cultural communities, disabled persons, orany other sector as may be determined by the sanUJInian concerned withinninety (90) days prior to the holding of the next local elections as may beprovided for by law. The COMELEC shall promulgate the rules andregulations to effectively provide for the election of such sectoralrepresentatives.127

In 1995, Congress amended the Code to stall the election of local sectoralrepresentatives. The law now reads:

(d) For purposes of the regular elections on May 11, 1992 and all generalelections thereafter, the regular elective members of the sanggllniangpanlNngS8Rand sanUJIniang b'!Jan, shall be elected at large in accordance with existing laws.

The Commission shall promulgate rules and regulations to effectivelyimplement the provisions of law lllhich m'!J hereafter be enacted providing for theelection of sectoral representatives.l28 [Italics supplied.]

Whatever the intention of Congress was when it enacted the LocalGovernment Code, local sectoral representation now remains dormant after theCode was amended. As it reads now, another law is required to implement theconstitutional mandate.

The lobby for a new law to implement local sectoral representation enjoyedlittle support from within the government. Ironically, local sectoral representationwas included in the Social Reform Agenda of the Ramos Administration as a flagshipprogram of the Department of Interior and Local Government (DILG). But theDILG itself was reportedly echoing the sentiments of local government units thatresisted sectoral representation due to the financial requirements of having severalmore participants in local development planning and decision-making. Local

127 Rep. Act No. 7160 (1990), sec. 41.128 Rep. Act No. 7887 (1995).

executives are opposing local sectoral representation because they claim that locallegislatures already represent the people or simply because of budget constraints.129

Some point out that many local government units are reluctant to sharepower130 and that local officials argue that paying for the salaries of additionalrepresentatives will burden poor municipalities.131

The other innovation designed to address the ills of traditional politics is theparty-list system for the House of Representatives. The 1987 Constitutionintroduced the party-list method of representation, wherein any national, regional orsectoral party or organization registered with the COMELEC may participate in theelection of party-list representatives who, upon their election and proclamation, shallsit in the House of Representatives as regular members. In effect, a voter is giventwo votes for the House of Representatives-one for a district representative andanother for a party-list representative.132

The introduction of the party list system actually started as a proposal forthe representation of basic sectors in Congress. Commissioner Villacorta proposedit as a response to class bias in the electoral system:

Sectoral representation is a necessity, especially in these times when the peopleare giving the democratic process another chance, if not its last chance.Providing for mechanisms which would enhance the chances of marginalizedsectors in electing their Representatives to the National assembly will keeptheir hopes alive in the principle of peaceful change. This imperative becomesmore urgent when this Commission recently adopted a bicameral system of

129 ATENEO CENTER FOR SOCIALPOLICY, CASE STUDIESNO.4, PEOPLE'S PARTICIPATIONIN LOCALGOVERNANCE80-81 (1995).

130 Arnold S. Tenorio, 12 years after EDSA, demOtTarystill wanting, BUSINESSWORLD;' f1W, 27, 1998,http://codex.bworldonline.com/ codex.others.html.

131 Cecille M. Santillan, Comelec m~ cancel sectoral polls, BUSINESS WORLD, July 11, 1997,http://codex.bworld-online.com.codex.others.html.

132 CaNST. art. VI, sec. 5, pars. 1-2 provides:Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and ftfty

members, unless otherwise ftxed by law, who shall be elected from legislative districts apportioned amongthe provinces, cities, and the Metropolitan Manila area in accordance with the number of their respectiveinhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shallbe elected through a party-list system of registered national, regiona~ and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number ofrepresentatives including those under the party list For three consecutive terms after the 'atiftcation ofthis Constitution, one-half of the seats allocated to party-list representatives shall be ftlled, as provided bylaw, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women,youth, and such other sectors as may be provided by law except the religious sector.

legislature. We have heard apprehensions that the Upper House might bemonopolized by the moneyed sectors and might protect vested propertyinterests. Therefore, Iwould like to know if the Committee on the Legislativewould consider identifying the mechanics of multiparty and multisectoralrepresentation in the Constitution instead of leaving the mechanics to thelegislature and, therefore, unnecessarily make our masses wait much longerbefore they are sectorally represented in the legislature.133

Commissioner Monsod was quick to point out the difference betweensectoral representation and the party-list system by saying that the party-list systemshould avoid the question of which sectors will be represented in Congress.134 Heexplained that, "we do not even have to mention sectors because the sectors wouldbe included in the party list system. They can be sectoral parties within the party listsystem."135 The Commission, therefore, resorted to a compromise-party-listrepresentatives shall constitute 20% of the House of Representatives, provided that"for the first two terms after the ratification of the Constitution twenty-five of theseats ... shall be allocated to party list representatives shall be fllled by selection orelection, as provided by law from ... sectors."136

This compromise, however, triggered a debate on whether party-listrepresentation from sectors would be temporary or permanent.

The proponents of limited sectoral representation suggested that anadvantage be afforded to marginalized groups but only for a limited period. Theyreasoned that these sectors would remain weak because a guarantee of congressionalrepresentation will become a disincentive to strengthen their sectors.137

Commissioner Bernas pointed out that the redistribution of economicpower would take longer than the two-term limit for sectoral representation assuggested by other Commissioners.138 He explained that when the gross inequalitiesof the economic situation have been removed, then the Constitution could be

133 2 RECORDSOF THE CONSTITUTION.~LCOMMISSION84 Ouly 22, 1986). Commissioner Aquino, onthe other hand, claimed: The problem with Philippine politics now is that the concentration of socioeconomicand political power is in the hands of the few, while the majority of the people are destitute and powerless.Now is the time and the unedited opportunity for us to transfer the center of gravity of socioeconomic powerfrom the people on top to the people below .... We know that traditional politics had denied the people theright to make their own mistakes. Elite politics has been a sure-fire formula for depriving us of the luxury ofmaking our own mistakes. I think that it is now the time to return the power to the people ... [I]n other words,let the Filipinos chart their own histories. See 2 RECORDSOF TIlE CONSTITUTIONALCOlYlMISSION566 (Aug. 1,1986).

'34 2 RECORDS01' 'llIE CONSTITUTIONALCOMMISSION85 Ouly 22, 1986).135 2 RECORDSOF TIlE CONS11TUTIONALCOMMISSION86 Ouly 22, 1986).1362 RECORDSOF THE CONSTITUTIONALCm'L\lISS!ON 561 (Aug. 1, 1986).137 2 RECORDSOF THE CONSTITUTIONALCOMMISSION565-566 (Aug. 1, 1986)."" 2 RECORDSOF THE CONSTITUTIONALCOMMISSION566-567 (Aug. I, 19B6).

amended,139 Commissioner Quesada echoed these concerns and said that it wouldbe impossible to determine when these sectors would progress to the point ofcompeting in the political arena.l40

Commissioners Ople, Braid, and Sarmiento once more opposed thepermanent representation of sectors and suggested to lengthen the party-listrepresentation up to three or five years. It was feared that permanent representationwill discourage self-reliance and genuine political maturity. 141 In the end, 19Commissioners voted for permanent representation and 22 voted against.142

There was an attempt to introduce sectoral representation in the Senate aswell but that effort did not materialize.143

Complying with its constitutional duty, Congress enacted Republic Act No.7941 or the Party-List System Act.

A total of 123 parties, organizations and coalitions participated in the lastparty-list elections on May 11, 1998. On June 26, 1998, the COMELEC en baneproclaimed 13 party-list representatives from 12 parties and organizations, which hadobtained at least two percent of the total number of votes cast for the party-listsystem.l44

Party-list votes, however, were cast by only 33.5% of the total number ofregistered voters.145 Many criticized the COMELEC for failing to educate the votersregarding the innovation in the electoral system. Consequently, both voters andCOMELEC personnel did not entirely comprehend the changes introduced under

1J9 2 RECORDSOF THE CONSTITUTIONALCOMMISSION567 (Aug. 1, 1986).14Q 2 RECORDSOF THE CONSTITUTIONALCOMMISSION578 (Aug. 1, 1986).141 2 RECORDSOF '11-IECON~'TITUTIONALCOMMISSION571, 577 & 579 (Aug. 1, 1986).1422 RECORDSOF THE CONSTITUTIONALCOMMISSION584 (Aug. 1, 1986).141 Commissioner Padilla articulated the opposition to sectoral representation in the Senate.

Commissioner Padilla, himself a former Senator, argued that the Senators are elected at large by all registeredvoters throughout the country. He argued that a nationwide election "should no longer distinguish between thepeople under the parties or some sectoral groups because all qualified and registered voters already vote for theSenators in a senatorial election nationwide." Sectoral representation in the senate lost, 9 votes to 21. 2REcORDS OF THE CONSTITUTIONALCOMMISSION596 (Aug. 1, 1986). Commissioner Gascon likewiseattempted to extend party-list representation to the Senate but was also defeated. 2 RECORDS OF THECONSTITunoNALCOMMISSION 597 (Aug. 1, 1986).

144 Two of the proclaimed representati,-es belonged to APEC, which obtained 5.5 percent of the votes.After passing upon the results of the special elections held on July 4, 18 and 25, 1998, the COMELEC en ban"determined that the Philippine Coconut Planters' Federation, Inc. (COCOFED) was entitled to one party-listseat for having garnered votes equivalent to 2.04 % of the total votes cast for the party-list system. Its firstnominee, Emerito S. Calderon was proclaimed as the 14th party-list representative.

145 AGUSTIN MARTIN G. RODRIGUEZ & D]ORINA VELASCO,DEMOCRACYRiSING?: THE TRIALSANDTRIUMPHSOF THE 1998 PARTY-LiSTELECnONS 8 (1998).

the law. Many of these votes were not even counted because the system was deemedtoo complicated.l46

In any case, the first party-list elections settled one question regarding thelaw-the formula for the allocation of seats in Congress. On July 6, 1998, thePeople's ProgressIve Alliance for Peace and Good Government Towards Alleviationof Poverty and Social Advancement (pAG-ASA) asked the COMELEC to fill up the20 percent membership of the party-list representatives in the House ofRepresentatives, arguing that this provision of the Constitution was mandatory. Inessence, PAG-ASA, later joined by nine other losing candidates, claimed that theCOMELEC should proclaim 52 winners in the 1998 party-list elections.

THe COMELEC's Second Division granted PAG-ASA's petition andordered the proclamation of an additional 38 representatives to join the 14 who wereearlier proclaimed. The 14 winners objected to the proclamation and argued thatonly parties, organizations or coalitions garnering at least two percent of the votesfor the party-list system were entitled to seats in the House of Representatives. Theyadded that additional seats should be allocated to those which had garnered the two-percent threshold in proportion to the number of votes cast for the winning parties.On January 7, 1999, the COMELEC en bane affirmed the Resolution of the SecondDivision. The case was elevated to the Supreme Court.

The Supn;me Court nullified .the COMELEC Resolution147 saying that itviolated two requirements of Republic Act No. 7941: (a) the two percent threshold,and (b) the proportional representation requirement.

The Court added that filling the 20 percent seat allocation in the House ofRepresentatives provided in section 5 (2), article VI of the Constitution is notmandatory. The twenty-percent allocation "merely set a ceiling" for party-list seats inCongress. Thus, there is no legal necessity to complete the full complement of 52party-list seats in the Lower House. In the end, the Supreme Court identified the"inviolable parameters" of the Philippine party-list system:

First, the twenty percent allocation - the combined number of all party-listcongressmen shall not exceed twenty percent of the total membership of theHouse of Representatives, including those elected under the party list.

Second, the two percent threshold - only those parties garnering a minimum of twopercent of the total valid votes cast for the party-list system are "qualified" tohave a seat in the House of Representatives.

146 !d. at 8-9.147 See Veterans Federation Party, et al. v. Commission on Elections, et al., G.R Nos. 136781, 136786 &

136795, 342 SCRA 244 (2000). Justice Reynato S. Puno wrote a separate concurring opinion, which focuse onthe constitutionality of the Party-List Law. Justice Vicente Mendoza dissented from the majority, and wasjoined in his dissent by Justice Santiago M. Kapunan and Justice Leonardo A. Quisumbing.

Third, the three-seat limit - each qualified party, regardless of the number ofYotes it actually obtained, is entitled to a maximum of three seats; that is, one"qualifying" and two additional seats.

FO/llth, proportional representation - the additional seats which a qualified party isentitled to shall be computed "in proportion to their total number of Yotes.148

The party-list elections in 1998 produced less than satisfactory results.None of the party-list representatives managed to push any of their proposedmeasures into law, and most of the party-list representatives remained inaudiblethroughout their terms.149

Nevertheless, the system achieved some of its goals. The 11th Congress ofthe Philippines presented striking changes in the character and composition of theHouse of Representatives. The introduction of term-limitsl50 and the party-listelections dented the control of political families in the chamber and brought togethera wider range of families, groups, social classes and political leanings compared tothe two previous Congresses after the ouster of Ferdinand Marcos.151 Twelve of the14 party-list representatives had no political experience and were drawn largely fromnon-governmental organizations rather than political families.152 The poorestmembers of the House of Representatives include four party-list representatives.l53While the House of Representatives remains a male-dominated millionaire's club, theparty-list elections promoted a measure of democratization in what was once anexclusive bastion of the elite.154

Many groups were apparendy encouraged by the party-list elections since143 sectoral groups and 27 political parties f.tled petitions for registration toparticipate in the party-list elections on May 14, 2001. The new aspirants includegroups identified with the politicalleftl55 and the extreme right.156

148 ld. at 255.149 See Gemma Bah<ayaua,Mi.,••d Re,iews, NEWSBREAK,Aug. 29, 2001, at 23.150 The Philippine Constitution provides that "No Member of the House of Representatives shall serve

for more than three consecutive terms." See CONST. art. VI, see. 7, par. 2.151 See Yvonne T. Chua & Vinia M. Datin!,>uinoo, f'amilie .•.Remain Strong in C!mgrrJ.r.•..hilt their lnfluen<~ is

Wan;,tg, http://www.pcij.org/stories/2001/ties.html(Mar. 29-30, 2001).mId153 See Yvonne T. Chua & Vinia M. Datinguinoo, New Wealth Eme'!,es Dominant in the Ho/t.re,

http://www.pcij.org/stories/2001/ties2.html (Mar. 29-30, 2001).154Idm Bayan Muna, a group composed of leftist organizations wanted to present an alternative to traditionnal

parties nd pointed out that the few progressive candidates who were elected to Congress were usually forcedto join traditional parties and ultimately were swallowed up by the system. See Pia Lee-Brago, LejNst group tojoinMay elutions, PHIL. STAR,jan. 8, 2001, at 14.

156 Anti-communist groups under the banner of the National Alliance for Democracy (NAn) soughtparty-list accreditation to thwart the reelection of party-list groups Akbayan and Sanlakas, and the election of

However, the deluge of new partiCipants alarmed certain sectors.Representative Loretta Ann Rosales of the party-list organization Akbayan criticizedthe COMELEC for its failure to issue guidelines for the accreditation of thesegroups, saying that unless the COMELEC is careful, the number of participants inthe next party-list elections could rise to 266.157 Rosales claims that many of theseaspirants cannot be considered as representing the interests of marginalized sectorsand are not among the sectors enumerated in either the Constitution or Republic ActNo. 7941. She said that the organizations include 25 business groups, eight securityagencies, three military related organizations, five big professional organizations, 17quasi-government groups, and 11 that her party claims did not fit the criteria ofparty-list groups. Among those included in the list are the Federation of Filipino-Chinese Chamber of Commerce and Industry Inc., the Guardians CenterFoundation, the Philippine Medical Association, the United Architects of thePhilippines, the Chamber of Real Estate and Builders Association, and the PhilippineDental Association.

Subsequently, the COMELEC accredited 162 groups/parties for the 2001party list elections-reflecting a 31.7 % increase from the 123 participants in the1998 elections. Of the new set of aspirants, 78 are organizations/coalitions, 57 aresectoral groups, and 26 are political parties.158

Akbayan asked the COMELEC to reconsider its decision to include someof these organizations.159 Rosales said that their inclusion is unconstitutional, adding,"the elite sector is muscling in on what little is left for the unrepresented sectors ofsociety."160 She added, "Ultimately, the big and the moneyed ones will gobble upeven the 20 percent of the membership in the House of Representatives that theConstitution intended for the marginalized sectors."161 Bayan Muna nominee SaturOcampo said, "These are not marginalized groups, but party-list groups of Estradacronies and political patrons who want to bring back the dark days of the Estradaregirne."162

Bayan Muna. The allianc~, which includes anti-communist vigilante groups formed in the 1980s, accused themilitant oq:,>anizationsof being fronts of the Communist Party of the Philippines and its splintered groups. SeeJ owcl F. Canuday, Anti-Red group joins party-lirt ra,~,PHIL. D:\..ILYINQUIRER,Dec. 13, 2000, at A15.

157 Martin P. Marfil, \\larginali'Jd Jector getting too crowded, PHIL. DAILYINQUIRER,Feb. 10, 2001 at AI.15' COMMISSION ON ELECTIONS, CERTIFIED LIST OF POLlTIC\L PARTIES / SECTORALPARTIES /

ORG,\NIZATIONS / COALITIONS, PARTICIPATINGIN TIlE PARlY LIST SYSTEMFOR THE MAY 14, 2001ELEcnONS (2001).

159 Kados Baylosi., Party-li,.t pretenders mu.rt be purged, TODAY, Feb. 19,2001, at 1.IW Id.1(,1 Solon qtleJtion.r ba.rty OK o/party list accreditation..-, MALAYA,Feb. 19,2001, at 2.1(,2 Gerald G. Lacuarta, Party-lirt ..-y..-temgoin/!, to tbe dog..-,PHIL. DAILYINQUIRER,April 5, 2OCn,at At.

The COMELEC claimed that it was powerless to stop the accreditation ofthese groups because the qualifications under the party-list law are very lax.163Some,however, claimed that the fault lies with the COMELEC, "whose closest brush withpolitical will appears to be the willful ignorance with which it would allow the law tobe bastardized."164 Party-List groups filed petitions with both the COMELE065 andthe Supreme Court166 for the disqualification of party list groups, which allegedly donot represent marginalized groups.

Before the Supreme Court could decide the case, the elections were heldand the votes for the party list candidates produced the following results:

16l Jay B. Rempillo, 0mtiRr: txJ ask CD7gn5s txJ m.>iwI party-list !4w txJ prmnt backJaJr entry, MAlAyA, April 6,2001, at 2.

164 Paulynn P. Sicam, tbe tTaJlO$ are ~ the trapos are ~,CyberDyatyo, athttp://www.codewan.com.ph/CyberDyatyo/ (Feb. 13,2001). '

165 Akbayan and Bayan Muna filed separate petitions with the COMELEC to disqualify 17 groupsparticipating in the party-list elections, which include major political parties, business associations and interestgroups identified with ousted President Joseph Estrada. See Gerald G. Lacuarta, Ban ~ party-list bets, Ccrntia:askDi, PHIL. DAILYINQUIRER,Apri111, 2001, atA2.

166 The Philippine Association of Retired Persons Ine. (PARP) filed the case with the Supreme Court.Unlike the petitions filed by Akbayan and Bayan Muna with the COMELEC, PARP only challenged theparticipation of political parties in the party-list elections because it would "defeat the very purpose for whichthe party-list system was instituted.·. See Party-list btn en parties SOI/fPt, PHIL. DAILYINQUIRER, April 12, 200 1, atA2.

May,14, 2001 National and Local ElectionsPAR1Y LIST CANVASS REPORT NO. 25 (by Rank)

As of August 13, 2001 2:20 PM

POLITICAL PAR1Y/COALITIONS/ SECTORAL

ORGANIZATIONS

GRANDTOTAL

Bayan Muqa BAYAN 1,708,252

Mamamayan Ayaw sa Droga MAD 1,515,682Association of Philippine Electric

APEC 801,921CooperativesVeterans Federation Party VFP 580,771

AbagPromdi PROMDJ 422,430

Nationalist People's Coalition NPC 385,151

Akbayan! Citizens' Action Party AKBAYANI 377,850

Luzon Farmers Party BUTIL 330,282

Lakas NUCD-UMDP LAKASNUCD- 329,093UMDPCitizen's Battle Against Corruption CIBAC 323,810

PERCEN-TAGE

OF VOTESGARNERED

11.3157

10.0401

5.3121

3.8471

2.7982

2.5513

2.5029

2.1878

2.1800

2.1450

The Supreme Court, in Ang Bagong Bcryani-OFW Labor Party v. Commission onElections, et aL167 decided on, among others, the following issues: (a) whether politicalparties may participate in the party-list elections and (b) whether the party-list systemis exclusive to "marginalized and underrepresented" sectors and organizations.

After examining the law, the Supreme Court ruled that political parties areclearly allowed to run in the party-list elections. It added, however, that these partiesor organizations must satisfy the purposes of the party-list system, as laid down inthe Constitution and Republic Act No. 7941.

At the outset, the Supreme Court recognized the purpose under the "party-list system." It said that:

The party-list system is a social justice tool designed not only to give more lawto the great masses of our people who have less in life, but also to enable themto become veritable lawmakers themselves, empowered to participate directlyin the enactment of laws designed to benefit them. It intends to make themarginalized and the underrepresented not merely passive recipients of theState's benevolence, but active participants in the mainstream of representative

democracy. Thus, allowing all individuals and groups, including those whichnow dominate district elections, to have the same opportunity to participate inparty-list elections would desecrate this lofty objective and mongrelize thesocial justice mechanism into an atrocious veneer for traditional politics.l68

Under the Constitution and Republic Act No. 7941, parties cannot bedisqualified from the party-list elections, merely on the ground that they are politicalparties. The Supreme Court pointed out that under section 5, article VI of theConstitution, members of the House of Representatives may "be elected through aparty-list system of registered national, regional, and sectoral parties or organizations."The Court also pointed to sections 7 and 8, article IX (C) of the Constitution, whichprovide that political parties may be registered under the party-list system.169

The Court also resorted to the Records of the Constitutional Commissionand noted that the Commissioners were Clearly contemplating the participation ofpolitical parties. During the deliberations in the Constitutional Commission,Commissoner Monsod pointed out that the participants in the party-list system may"be a regional party, a sectoral party, a national party, UNIDO, Magsasaka, or aregional party in Mindanao." This was also clear from exchange betweenCommissioners Jaime Tadeo and Bias Ople.

The Court then analyzed Republic Act No. 7941 saying that it provides fora party-list system of registered national, regional and sectoral parties or

organizations or coalitions thereof. .. " Section 3 states that a "party" is "either apolitical party or a sectoral party or a coalition of parties." More to the point, the lawdefines "political party" as "an organized group of citizens advocating an ideology orplatform, principles and policies for the general conduct of government and which,as the most immediate means of securing their adoption, regularly nominates andsupports certain of its leaders and members as candidates for public office."

168 [d. at 3.169 The Constitution provides:

Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid,except for those registered under the party-list [lstem as provided in this Constitution.

Sec. 8. Political parties, or organizations or coalitions registered under the party-list [lstem, shallnot be represented in the voters' registration boards, boards of election inspectors, boards ofcanvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers inaccordance with law. [Italics supplied.]

Finally, Section 11 of Republic Act No. 7941 is a basis for the participationof political parties. It provides that "for purposes of the May 1998 elections, the ftrstftve (5) major political parties on the basis of party representation in the House ofRepresentatives at the start of the Tenth Congress of the Philippines shall not beentitled to participate in the party-list system .... "

Clearly, parties may participate in these elections, but the Court pointed outthat this does not mean that atry political party or any organization or group may doso. The requisite character of tllese parties or organizations must be consistent withthe purpose of the party-list system, as laid down in the Constitution and RepublicAct No. 7941. Section 5, article VI of the Constitution, provides as follows:

(1) The House of Representatives shall be composed of not more than twohundred and fifty members, unless otherwise .fixed fry law, who shall be electedfrom legislative districts apportioned among the provinces, cities, and theMetropolitan Manila area in accordance with the number of their respectiveinhabitants, and on the basis of a uniform and progressive ratio, and thosewho, as provided fry Imll, shall be elected through a party-list system of registerednational, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of thetotal number of representatives including those under the party list. For threeconsecutive terms after the ratification of this Constitution, one-half of thescats allocated to party-list representatives shall be filled, as provided fry law, byselection or election from the labor, peasant, urban poor, indigenous culturalcommunities, women, youth, and such other sectors as mqy be provided fry law,except the religious sector. [Italicssupplied.]

The provision is studded with phrases like "in accordance Witll law" or "asmay be provided by law". This means that it was up "to Congress to sculpt ingranite the lofty objective of the Constitution." Republic Act No. 7941 was enactedand it laid out the statutory policy in this way:

SEe. 2. Declaration of Polil)!. - The State shall promote proportionalrepresentation in the election of representatives to the House ofRepresentatives through a party-list system of registered national, regional andsectoral parties or organizations or coalitions thereof, which will enableFilipino citizens belonging to marginalized and underrepresented sectors,organizations and parties, and who lack well-defined political constituenciesbut who could contribute to the formulation and enactment of appropriatelegislation that will benefit the nation as a whole, to become members of theHouse of Representatives. Towards this end, the State shall develop andguarantee a full, free and open party system in order to attain the broadest

possible representation of party, sectoral or group interests in the House ofRepresentatives by enhancing their chances to compete for and win seats inthe legislature, and shall provide the simplest scheme possible.

In analyzing the provision, the Court held that the State was promotingproportional representation by means of the party-list system, which will "enable"the election to the House of Representatives of Filipino citizens,

(1) who belong to marginalized and underrepresented sectors,organizations and parties; and

(2) who lack well-defined constituencies; but(3) who could contribute to the formulation and enactment of

appropriate legislation that will benefit the nation as a whole.

The Court then explained the key concepts in this provision.

"Proportional representation" does not refer to the number of people in aparticular district, because the party-list election is national in scope. Neither does itallude to numerical strength in a distressed or oppressed group. It refers to therepresentation of the "marginalized and underrepresented" as exemplified by theenumeration in section 5 of the law, namely, "labor, peasant, fisherfolk, urban poor,indigenous cultural communities, elderly, handicapped, women, youth, veterans,overseas workers, and professionals."170

However, it is not enough for the candidate to claim representation of themarginalized and underrepresented, because representation is easy to feign. Theparty-list organization or party must factually and truly represent the marginalizedand underrepresented constituencies mentioned in Section 5. Concurrendy, thepersons nominated by the party-list candidate-organization must be "Filipino citizensbelonging to marginalized and underrepresented sectors, organizations andparties."!?!

"Lack of well-defmed constituencies" refers to the absence of a traditionallyidentifiable electoral group, like voters of a congressional district or territorial unit ofgovernment. It refers to those with disparate interests identified with the"marginalized or underrepresented." The COMELEC should see to it that onlythose Filipinos who are "marginalized and underrepresented" become members ofCongress under the party-list system.!72

t70 Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, et a!', G.R. No. 147589, June 26,2001, 20.

171 [d. at 21.172 [d

The Court held that the intent of the Constitution is to give genuine powerto the people, not only by giving more law to those who have less in life, but moreso by enabling them to become lawmakers themselves. Consistent with this intent,the policy of the implementing law is also clear: "to enable Filipino citizensbelonging to marginalized and underrepresented sectors, organizations andparties ... to become members of the House of Representatives."173

The marginalized and underrepresented sectors to be represented under theparty-list system are enumerated in section 5 of Republic Act No. 7941. Theenumeration of marginalized and underrepresented sectors in this section is notexclusive. "It demonstrates the clear intent of the law that not all sectors can berepresented under the party-list system." According to the Court:

Indeed, the law crafted to address the peculiar disadvantages of Payatas hoveldwellers cannot be appropriated by the mansion owners of Forbes Park. Theinterests of these two sectors are manifestly disparate; hence, the [Office ofthe Solicitor General's] position to treat them similarly defies reason andcommon sense ....

While the business moguls and the mega-rich are, numerically speaking, a tinyminority, they are neither marginalized nor underrepresented, for the starkreality is that their economic clout engenders political power more awesomethan their numerical limitation. Traditionally, political power does notnecessarily emanate from the size of one's constituency; indeed, it is likely toarise more directly from the number and amount of one's bank accounts.

It is ironic, therefore, that the marginalized and underrepresented in our midstare the majority who wallow in poverty, destitution and infirmity. It was forthem that the party-list system was enacted...:......togive them not only genuinehope, but genuine power; to give them the opportunity to be elected and torepresent the specific concerns of their constituencies; and simply to givethem a direct voice in Congress and in the larger affairs of the State. In itsnoblest sense, the party-list system truly empowers the masses and ushers anew hope for genuine change. Verily, it invites those marginalized andunderrepresented in the past-the farm hands, the fisher folk, the urban poor,even those in the underground movement-to come out and participate, asindeed many of them came out and participated during the last elections. TheState cannot now disappoint and frustrate them by disabling and desecratingthis social justice vehicle.

Because the marginalized and underrepresented had not been able to win inthe congressional district elections normally dominated by traditionalpoliticians and vested groups, 20 percent of the seats in the House ofRepresentatives were set aside for the party-list system. In arguing that even

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/42 ?R, Xm/3,,10 ,A( Xm/5,

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