Marcos to call off vote? Evidence mounts. He has enough pull in court to get vote canceled, judge says

There are growing fears in opposition circles that President Ferdinand Marcos, faced with the unexpected development of a united opposition, will call off next February's presidential election. The electoral campaign officially began on Nov. 11, but the Supreme Court has yet to rule on the constitutionality of the new electoral law under which the polls are being held. The court's decision is expected to be handed down today after two days of hearings.

One Supreme Court justice told the Monitor Wednesday that he expected 10 justices to declare the electoral code unconstitutional. Ten is the number of votes required to overturn the law. If that happens, the election will be called off.

Some ruling-party insiders are said to be confident that will happen. On Dec. 16 the Commission on Elections called off the first voters' registration day (scheduled for Dec. 29), citing time constraints. And one presidential confidant reportedly claimed recently that the Supreme Court would call off the elections. If it failed to do so, he reportedly added, the President would find other, unspecified ways to call it off.

Many observers expect the Supreme Court's ruling to be based on political rather than legal considerations. Only two of the 13 justices are considered independent of the government. One of these, Justice Claudio Teehankee, has twice this year been passed over for promotion to chief justice in favor of a more junior colleague alleged to be more amenable to ruling-party wishes.

If President Marcos wants the election to go ahead, observers say, the court will uphold the constitutionality of the electoral law -- or have a majority vote against the law but fail to muster the 10 votes needed to overturn the law and call off the election. If Mr. Marcos has changed his mind about the election, the court will strike down the law, according to the observers.

``The President is using the court to hedge his bets,'' says a lawyer who regularly argues cases before the high court.

``Marcos misread the political climate when he called the election,'' says Emmanuel Pelaez, a former vice-president, senator, and until 1984 a leading member of the ruling Kilusang Bagong Lipunan (KBL, or Movement for a New Society).

``At that time, it seemed impossible that Cory [Aquino] and Doy [Laurel] could get together.'' Now, Mr. Pelaez says, the President is relying on his control of the Supreme Court to extricate himself from his electoral commitment.

Objections to the law's constitutionality are based on the fact that the President will not resign before the election. There is no constitutional provision for holding a presidential election as long as the presidential post is occupied.

In a Nov. 11 letter to the National Assembly, Marcos said that over the past two years ``propaganda and dissent'' have ``cast a shadow'' over his policies and that he would thus seek a new mandate. But he added that he would vacate the presidency only if he was defeated in the election and only when the winner was ``proclaimed and qualified as president by taking his oath of office 10 days after his proclamation.''

Constitutional specialists -- including Marcos's running mate Arturo Tolentino -- say this is constitutionally impossible. The only way the President can shorten his term of office, specialists claim, is by resignation; the only way the National Assembly can cut short a presidential term is by impeachment. During the assembly debate on it late last month, Tolentino described the law as ``constitutional adventurism.''

Eleven groups, including the Philippines Bar Association, have filed petitions with the Supreme Court questioning the law's validity. Many of the petitioners have opposition sympathies, and two groups have dropped their petitions, saying they now prefer to see the election take place.

Speaking to the court as an amicus curiae (an independent specialist called by the court to advise it), former Senator Pelaez urged the court to declare the law unconstitutional -- ``but only by seven votes.'' This, he said, would register the court's objection to the law but would not frustrate popular expectations by calling off the elections. A cancellation, he said, could have dangerous consequences, and ``it would be on the conscience of the Supreme Court if anything happen s to this country.''

Unlike most observers, Pelaez argued that less than 10 votes against the electoral law may not mean that the court has submitted to Marcos's will. In a subsequent interview, Pelaez said such a decision could be an important sign that the President is losing his grip over previously pliant institutions.

``If he cannot control the Supreme Court,'' Pelaez said, ``it means that he no longer has the situation in hand.''