Today’s Inquirer editorial suggests that the Arroyo administration has a game plan which plumbs the depths of cynicism; unfortunately for my own health, it is a reading of the political situation I share. Unfortunately for the peace of mind of many in the opposition, the success or failure of that game plan depends, in the next several weeks, on the essentially passive institution known as the Supreme Court.
The editorial’s last three paragraphs conclude:
But this turn of events does not come as a surprise, in part because political activists like Rene Azurin have already sounded the alarm. It is hard not to agree: If the Comelec, which is still controlled by Abalos, looks set to reject the Sigaw ng Bayan and Ulap petition, that must be because the administration strategy is to precisely speed up that rejection. The strategy must be to bring the matter as expeditiously as possible to the Supreme Court.
But surely a court that struck down key provisions of the CPR policy, EO 464 and PP 1017—and gave the Arroyo administration pointed reminders on democratic governance in the process—will also strike down the present “people’s initiative”? We have to admit that there still exists residual skepticism regarding this issue, but perhaps the administration strategy is not an outright win, but—and just like the first three landmark rulings—“only” a “win-win” decision.
That would allow the administration—fully aware of the Senate’s reluctance to go to war, totally cognizant of the Supreme Court’s slow, collegial decision-making—to proceed as planned.
That sounds both breathtakingly cynical — and exactly right. As the events of the last few months have shown all those with eyes to see and ears to hear, Malacanang has realized that it does not need to win an outright victory in crucial cases before the high court for it to continue essentially as it pleases.
Call it the first-mover advantage of Philippine politics. As long as the Palace sets the pace, the 24 independent republics that make up the Senate will always play catch up, and the deliberative nature of the Supreme Court will always leave it lagging behind. Add the old republican principle of the presumption of regularity, as well as the demonstrated readiness of the Arroyo administration (maybe we should be more precise and call it the second Arroyo administration) to call black white, and white black (see, for example, under De Venecia, J., "saving the nation"), and we get a political machine that knows even "win-win" rulings can be turned — quickly, savvily, effectively — to its decided advantage.
In other words, the common fear that the Supreme Court will remember its roots and decide in favor of the Arroyo administration’s position on the so-called people’s initiative may really have no basis, as the eminently quotable friend of the court, Fr. Joaquin Bernas, wrote today. And yet, all the same, there is basis for the fear that the administration expects (and has been acting in full expectation of) favorable treatment from the high court. Why? Because a "win-win" decision, or a highly nuanced decision, or (shades of the Catholic bishops!) an acutely ambiguous decision would all be favorable enough for the administration.
In the end, the high court may end up high and dry — and effectively without a following. Bernas’s recapitulation of history makes chilling reading.
By the “wrong way,” I mean Charter change that is done in defiance of the existing Constitution. The first time it happened was in 1972-1973 when the 1973 Constitution replaced the 1935 Constitution. The Constitutional Convention of 1971 was overtaken by martial law in September 1972. The final days of the Convention were very much influenced by martial law. A final text was approved but was never presented to the people for ratification in a plebiscite. Instead, President Marcos declared that the new Constitution had been ratified by the people through the Citizens Assemblies.
When challenged before the Supreme Court, a majority of the justices said that the new document had not been validly ratified. But confronted by martial law and the fact that Congress had been dispersed, the Court, with neither money nor arms, could only say “there is no further judicial obstacle to the new Constitution being considered in force and effect.”
When the Supreme Court declared that there was no further judicial obstacle to the new Constitution being considered in force and effect, it had no real choice. A contrary declaration would not have changed the mind of President Marcos. And Marcos had the military behind him.
What would happen if the Supreme Court were to strike down the sham people’s initiative, and the Palace insisted on pushing through with it? What would happen then?