In his memoirs Voice of Dissent, the late senator Arturo Tolentino recalls that after reading Proclamation 1081 and General Order 1 he exclaimed: “This is a coup d’etat! This is a coup d’etat by AFP Commander-in-Chief Marcos of the Philippine Government.” Did Ferdinand Marcos govern under a state of martial law under the 1935 Constitution or did he execute a coup d’etat and what’s the difference between the two?

Article VII, Section 10 (2) of the 1935 Constitution reads: “The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it becomes necessary, may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law.”

This is lifted from Section 21(b) of the 1916 Jones Law. The governor general was “commander in chief of all locally created armed forces and militia” and was “responsible for the faithful execution of the laws of the Philippine Islands of the United States.” He could “call upon the commanders of the military and naval forces of the United States in the Islands …or the militia or other locally created armed forces, to prevent or suppress lawless violence, invasion, insurrection, or rebellion; and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place the Islands, or any part thereof, under martial law.”

Proclamation 1081 cites the 1935 Constitution as basis for martial law but adds: “…and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines… to enforce obedience to all the laws and decrees, orders and regulations promulgated by me or upon my direction.” Thus did Marcos claim legislative power which, under the 1935 Constitution, was vested in Congress.

General Order 1 was more blatant: “NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of the Armed Forces of the Philippines, do hereby proclaim that I shall govern the nation and direct the operation of the entire Government, including all its agencies and instrumentalities, in my capacity and shall exercise all the powers and prerogatives appurtenant and incident to my position as such Commander-in-Chief of all the Armed Forces of the Philippines.” Emphasis was on Marcos as C-in-C, not president. C-in-C Marcos will now “govern the nation and direct the operation of the entire Government.”

With 1081 and GO 1, FM became legislator in lieu of Congress and placed the entire government, including the Judiciary, under his authority as C-in-C. Were these acts in accordance with the 1935 Constitution’s martial law provision or were they actions of one who had just executed a self-coup (autogolpe)?

Carl Schmitt distinguishes two dictatorships.

A “commissary dictator” is made by the constitution to carry out a specific function or purpose. He only has executive functions: to execute laws, not to replace them or create new ones. This is a “classical” dictator because, like the dictators of the Roman Republic, he is commissioned by the duly constituted authorities to exercise extraordinary powers under exceptional circumstances for a delimited purpose (to wage war, suppress revolts). Once accomplished, the dictator steps down and the duly constituted authorities resume control.

The 1935 Constitution and the Jones Law provided for a commissary dictatorship. They commissioned a dictator with extraordinary power (martial law) under exceptional circumstances (rebellion, invasion, or insurrection) with a specific mission (end the rebellion, insurrection, or invasion).

By attaching the power to call out the military to his responsibility of faithfully executing the laws, the Jones Law made the governor-general a purely executive dictator.

By contrast, Schmitt’s “sovereign dictator” does not receive extraordinary power from a constitution to execute a specific commission for a definite period. He claims some form of popular investiture and is legislative and constitutive, not merely executive. The “popular mandate” is not just to execute laws but to legislate even new constitutions to achieve a revolutionary agenda. Thus, sovereign dictators are also “revolutionary dictators” like the Committee of Public Safety of the 1789 French Revolution.

1081 and GO 1 established a sovereign dictatorship. Slogans like “Democratic Revolution” and “New Society” evince FM’s design to be a “revolutionary dictator.” The litany of martial law reforms in Proclamation 2045 (which lifted martial law in 1981) are beyond the commission of a commissary dictator under the 1935 Constitution.

FM claimed to be a “constitutional dictator” under the 1935 Constitution but the martial law commissary dictatorship was a ruse. He actually self-couped and became a sovereign revolutionary dictator with legislative and constituent powers. The latter was exercised in 1976 when he introduced amendments to the 1973 Constitution and orchestrated a “referendum-plebiscite” to have them ratified.

The 1987 Constitution’s Article VII, Section 18 similarly commissions a commissary dictatorship with extraordinary powers to execute a specific mission under exceptional circumstances but occasional outbursts of establishing a “revolutionary government” from the incumbent C-in-C when he is vexed by someone or something is a different creature altogether. Can this Republic abide another sovereign dictator?

Millard Lim is a lecturer at the Department of Political Science of the Ateneo de Manila University.