Apparently miffed by criticism, both domestic and foreign, about his draconian style and method of government, the President has threatened to set a revolutionary government in place. It is a bad idea, and the threat itself is bad. The wiser the ruler, the more earnestly he seeks counsel. And I fervently wish to God that someone who has the President’s ear would advise in no uncertain terms that merely threatening to establish a revolutionary government and, worse, putting one in place, is downright wrong. It can be done of course, but we have been taught since the elementary grades that there ought to be a difference between “can” and “may”. That is precisely our issue with North Korea: that it seems that it does not draw the line between its capacity to build its nuclear arsenal and to use it!
It is not like “revolutionary government” is an option in the scheme of powers bestowed on the President: the “calling out powers”, the suspension of the privilege of the writ and the declaration of martial law, and finally “revolutionary government”. Precisely because it is “revolutionary” there is no constitutional scheme for it; there are no established standards. It is not a constitutional option. It is a political reality in some parts of the world; it is a path some leaders have chosen— most of the time, with very ambivalent results. And it might be good to remind ourselves of Richard Posner’s criticism of a common fallacy: the consent of the governed does not make a government democratic, for while the population may consent, perhaps even enthusiastically endorse both by cheers and Facebook “likes”, the institution of a revolutionary government, that will not make it democratic. An autocrat whose dictatorship is consented to by the people remains a dictator!
In Estrada v. Macapagal-Arroyo, the Supreme Court distinguished between Ms. Aquino’s assumption to office as “extra-constitutional”—which is why she expunged the 1973 Constitution under which Ferdinand Marcos had been proclaimed the duly elected president of the Philippines. By contrast, Ms. Arroyo’s presidency, following the “departure” of President Joseph Estrada was intra-constitutional—a matter of constitutional succession. The recognition of that distinction does not legitimize extra-constitutional measures. No doubt, de facto governments can morph into governments de jure, but there is some distance to traverse! It is only the recognition of a fact. But from that decision, we get it that a revolutionary government involves setting aside the Constitution and its institutions and governing by the fiat of only one person. In fact, in terms of government, there was no difference between Marcos’ martial law where laws came into force by presidential decree and Ms. Aquino’s 1986 government that saw her governing by executive order. Both under Marcos and Cory Aquino, the Supreme Court continued in its functions, although the debate continues to rage about how free (or unfree) the high court was at that time. Marcos did not re-organize the Supreme Court when he declared martial law. (He did, though after the so-called “Ericta scandal”, but accepted the resignation merely of one of their membership.) Ms. Aquino did. She ousted Ramon Aquino who was then Chief Justice and put Claudio Teehankee in his place, although there were others senior to him, among them Ameurfina Melencio-Herrera who could very well have been our first lady chief justice!
While threatening critics with a revolutionary government can make for very powerful rhetoric (except that the President has made so many ominous threats that the hapless Secretary Abella had later to “clarify” and “contextualize” that it is now not clear what is a dud and what is not!), it runs smack against the oath the President takes at the inauguration of his term, for he swears to uphold and to defend the Constitution! And there can be no more blatant culpable violation of the Constitution than to threaten to reduce it (now borrowing from lawyers’ favorite phraseology) to a useless scrap of paper! But of course, impeachment is also out of the question because a revolutionary government dismantles the mechanisms of impeachment and of accountability.
What is most disturbing about a revolutionary government is its conflation of “facticity” and “validity”: the fact that it is in power and has a monopoly of force validates its exercise of power and its use of force. When you have undone the legitimizing framework of the Constitution, what is to halt the importuning and the usurping of other power-brokers and power-centers, such as the military, or the organized and militarized Left? A revolutionary governments levels the playing field for all warlords.
Under a constitutional order, this dangerous equation is avoided by the mediation of the Constitution—written or unwritten. We will not forget the striking argument of the defendants at the Nuremberg War Trials: Our acts could not have been in violation of law, as the commands and their execution were the law at the time.
While it remains a political—(non-legal) option, it is something we should entertain only in extremis and about which every thoughtful Filipino should be doubly reticent!