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A Sophomoric invocation of ‘Marcos v. Manglapus’

(Article published in the Dec 10, 2002 issue of TODAY, Business Section)

In the 1996 edition of his book, entitled "The 1987 Constitution of the Republic of the Philippines: A Commentary", Father Joaquin G. Bernas, S.J., gave premium space to the case of Marcos v. Manglapus, both to the Supreme Court’s the main decision (177 SCRA 668) as well as to the per curiam resolution denying the motion for reconsideration (178 SCRA 760). Obviously unhappy with the Court’s ruling, Father Bernas turned soothsayer and wrote: "The doctrine enunciated in these two resolutions will be regretted when another Ferdinand Marcos emerges as President".

Father Bernas did not have to wait long. Less than two weeks ago, President Arroyo just did a Ferdinand Marcos.

On of November 29, she foisted on her captive audience, her less than accurate version of reality. She proclaimed during the 10th Golden Shell Awards and Top Export Performers Awards that "the Solicitor General and the Justice Department have determined that all five agreements covering the NAIA Terminal 3…are null and void."

President Arroyo’s speech writers obviously overlooked, surely unintentionally, the fact that her Solicitor General, in the Answer dated June 6 which he filed with the Regional Trial Court of Angeles City in Civil Case No. 10354, specifically asserted, among other things, that "the concession agreement is licit" [Underline supplied. "Licit" in my granddaughter’s book of opposites is the antonym of "null and void"] and that it "binds the contracting parties" [the "contracting parties" are, in legal parlance, not those who are imploding or shrinking be it in stature or popularity rating but simply those who enter into a contract].

Moreover, President Arroyo’s speech writers also obviously overlooked, again surely unintentionally, that the Hernando Perez, her most beloved Secretary of Justice, before he became the publicly pleased recipient of the presidential beso, pointed out to her in a memo the "possible subjects of renegotiation in line with the President’s directive" to seek better terms for the government. By going along with the renegotiation route, he recognized, at least implicitly, the validity of the NAIA Terminal 3 contracts.

And furthermore, President Arroyo’s speech writers, also obviously overlooked, really unintentionally no doubt, the fact her Government Corporate Counsel, who certainly is part of the executive department she heads, in his opinion addressed to the General Manager of the Manila International Airport Authority on September 30 declared, in no uncertain terms, that "the Contract [1997 Concession Agreement, ARCA (Amended and Restated Concession Agreement) and the three Supplements between the government through DOTC/MIAA and PIATCO are valid" (Underline supplied. "Valid",says my granddaughter’s book, is opposite of "null and void").

Hewing closely to the Marcos model, President Arroyo, armed with her selective memory, took it upon herself, in the style and flourish of FPJ taking on the evil elements of the celluloid world, to determine what to consider legal and what to consider illegal. Before the stunned audience of the Shell affair, she declared "I cannot honor contracts which the executive branch’s legal offices have concluded are null and void". The following day, in commemoration of Araw ng Mga Bayani, she reiterated her position that the NAIA Terminal 3 contracts cannot be upheld since they are contrary to law.

One would expect that such presidential pronouncements would ruffle up the spirits of Fr. Bernas and move him to lash out against Marcos v. Manglapus, with the same vehemence that he had lashed out against Aquino, Jr. v. Enrile (59 SCRA 183) and subsequent cases for legitimizing the martial law regime. But, alas and alack, we hear not a whimper from the good padre. On the contrary, in his column "Sounding Board" that appeared in last week’s issue of TODAY, he invoked Marcos v. Manglapus, as the legal justification for the presidential decision to annul and walk away from the NAIA Terminal 3 contracts. And he did so, with none of the regret that he had boldly foretold in his book. That view, in my view, is most regrettable.

The main legal issues in Marcos v. Manglapus, by the Supreme Court’s own formulation, are (1) whether or not the then President Corazon Aquino had the power under the Constitution, to bar the Marcoses from returning to the Philippines and (2) whether or not the she acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcoses to the Philippines posed a serious threat to national interest and welfare and decided to bar their return. The Marcoses have since been able to return under a different dispensation, each one in varying stages of life and non-life, and so, for all intents and purposes, Marcos v. Manglapus, should serve no more than as a curiosity deeply buried in an otherwise pleasantly curious text book for freshman law. That is exactly how the Supreme Court, at least the ponente Justice Irene Cortes, seemed to have wanted the case to be treated.

Right from the beginning, even before delving into the intricacies of the legal debate, the Court clearly said: "This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing 20 years of political, economic and social havoc in the country and who within the short space of three years seeks to return, is in a class by itself." By saying that the case is sui generis and should not create a precedent, the Court is saying that its pronouncements in the case, despite the Civil Code’s provision that judicial decisions form part of the legal system (Art. 8), ought not be invoked as justification for future acts. The Court decided the case simply because it had to; the petitioners had no intentions of going away, so the Court was forced to rule. But, please, asked the Madame Justice writing the opinion for the Court, do not take its resolution of the issues as law.

But Father Bernas, inexperienced as he is, at least officially, in the consequences of scorning a woman’s desires, in his December 4 column, insists on drawing some law from the case. Father Bernas apparently believes that Marcos v. Manglapus is precedent for the view that the general grant of executive power to the President under Section 1 of Article VII of the Constitution ("The executive power shall be vested in the President of the Philippines") is an authorization and duty that goes beyond the specific powers granted under the succeeding sections of the same article. Thus, the case is blanket permission for the President to claim "any duty or obligation inferable from the Constitution or from statutes". The President has "residual power" that should be implied from those specifically granted.

Thus speaketh Father Bernas: "If the President has the duty to execute the law, she has the correlative right and duty to determine initially whether a law is valid or whether a valid law is being violated and to take steps to prevent its violation. She does not have to wait for a court decision even if later the courts should declare her mistaken." In a way, his pronouncement is, up to that point, still tolerable. After all, he states no more than a general principle, properly modified by that collatilla, "initially", a subtle move, typically present in a lawyers’ brief, to provide a vent to let the hot air out should it be necessary to do so.

But apparently, Father Bernas enthusiasm for Marcos v. Manglapus cannot be contained. He moved on to say: "This is what she has done with the PIATCO contracts. Until the judiciary proves her wrong, her decision stands". Here, Father Bernas makes his transition from the general to the particular, from a statement of a general rule that may be true in many situations but not necessarily in all others to a concrete issue as specific as the NAIA Terminal 3 contracts. And here, the good father regrettably lost it. Fr. Henry B. McCullough, S.J., my most revered mentor in logic, if he were alive and teaching today, would certainly have invited Father Bernas for tea party after school. An invitation to a "tea party" is Father McCollough’s gentle way of telling underachieving students they need some special tutoring on the art of clear thinking.

That the Court was concerned that, at some time in the future, a Bernas would not only disregard its plea that Marcos v. Manglapus be not considered a precedent but, in addition, also misread its meaning is evident in Court’s meticulous efforts to explain the context of its dogma that the executive power vested in the President is more than the sum of specific powers enumerated in Article VII of the Constitution. The Court took pains to point out that, in the exercise of executive power, the President has to be mindful of the Government’s prime duty "to serve and protect the people" (Section 4, Article II, Constitution) and of the fact that "[t]he maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy." (Section 5, Article II, Constitution) "The power involved" in the case, said the Supreme Court, "is the President's residual power to protect the general welfare of the people."

Clearly, the doctrine of the President’s "residual power" i.e. that "executive power" in Section 1 of Article VII extends beyond what is specifically enumerated in the rest of Article VII, was affirmed by the Supreme Court in Marcos v. Manglapus in the context of governmental, as distinguished from proprietary, concerns of the State. Thus, even if a textbook writer can be excused for ignoring the Court’s plea that the case be not considered a precedent, the "residual power" that is vested in the President, as recognized in Marcos v. Manglapus, can, at most, be made to extend only to the concerns of the President as head of the government of our sovereign state. Marcos v. Manglapus cannot, in fairness to the Court that struggled mightily to resolve the unique issues of the Marcos’ return, be invoked to cover concerns proprietary or non-government.

And that is exactly what the PIATCO controversy is all about, a proprietary issue of the government. The basic fact, which the President’s speech writers cannot erase, is that on July 12, 1997, the Government, through the DOTC and the MIAA, and PIATCO executed a Concession Agreement and on November 26, 1998 executed an Amended and Restated Concession Agreement. The agreements were for the construction, maintenance and operation of NAIA Terminal 3, tasks which by nature are proprietary and "capable of being performed by a private entity" (National Airports Corporation v. Teodoro, 91 Phil 202).

When it entered into such agreements with PIATCO, a private entity, the government shed its sovereign attributes and descended to the level of private person. If presently there are conflicts between the parties about the agreements, then their resolution must be by the rules of engagement relating to private contracts. For the government, after perceiving that the contracts it had willingly entered into are not to its liking, to forthwith transform itself and ascend back into the super being that is the sovereign state smacks of betrayal and treachery. And to justify such action by invoking Marcos v. Manglapus is simply sophomoric. Even Father Bernas’ nephew, Jose Antonio "Bong" Bernas, lawyer for some private parties who also question the PIATCO contracts, does not adhere to his holy uncle’s spiel.