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Philippine constitutional law
Majoritarian courts and elite politics
Raul C. Pangalangan
Philippine constitutional law in the first decade of the twenty-first century
coincided with the presidency of mainly one person, Gloria Macapagal-Arroyo,
and ended with the election of her successor, Benigno Aquinoiii. The two
presidencies provide contrasting contexts for constitutional governance on the issue
of legitimacy, which is to say that Arroyo lacked it and Aquino did not. Accordingly,
Arroyo had to rely on the most literal reading of the constitutional text to buffer
herself again myriad political challenges, while Aquino had the luxury of relying
on democratic politics rather than countermajoritarian institutions to push forward
his reform agenda.
This chapter traces how, in the public sphere, Arroyo’s deficit in political
legitimacy weakened republican institutions and exposed them at once to populist
politics and elite manipulation. By the close of her presidency, the doctrine of
separation of powers under the post-Marcos constitution of 1987 had been mangled
to consolidate her political power, while the Bill of Rights had been twisted to cover
up rent-seeking schemes.
In terms of constitutional structure, January 2001 marked the first distortion: the
ouster of the democratically elected President Joseph Estrada through “People
Power” protests and the installation of Arroyo as president under a clouded
mandate. Arroyo declared an emergency four times in her presidency, but using
various labels to evade built-in checks and balances. She also invoked executive
privilege and issued gag orders to stifle anticorruption inquiries.
In terms of the Bill of Rights, President Arroyo’s party-mates in Congress
invoked her right to privacy over bugged cellphone conversations that caught
her plotting to rig elections, while she lowered the protection for public protests.
The decade also witnessed the manipulation of the doctrine of “state action” to
allow the government to wash its hands of extrajudicial killings, in what the
United Nations Special Rapporteur called a “passivity bordering on abdication
of duty.”