Marie Angelica M. Thelmo 2001-16919 Prof.

Gwen De Vera Martial Law Martial Law Years: The Judiciary as a Constitutional Watchdog and President Marcos Best Friend In a speech,1 launching the Mabuhay Ang Pilipino Movement, President Marcos said, No matter how strong and dedicated a leader may be, he must find root and strength amongst the people. He alone cannot save a nation. He may guide, he may set the tone, he may dedicate himself and risk his life, but only the people may save themselves. And that is exactly what the people did. Following the termination of martial law in 1981, social unrest was far from over. Human rights violations were still prevalent and the number of disappearances seemed to increase day by day. On February 22, 1986 the people had enough. They decided to save themselves from the authority of a man who wasted the lives of many to preserve that of his own and of his family. Thus, contrary to the remark 2 of George Shultz, secretary of state during the Reagan administration, an overwhelmingly large number of those 40 million cowards decided to leave the

Address at the launching of the Mabuhay Ang Pilipino Movement, Malacaang (30 November 1972). 2 The Philippines is a nation of 40 million cowards and one son of a bitch. (1982).

safety of their homes and march into the streets to rid themselves of a dictator, who, they very well knew could not save a nation.

The colorful stories told about the Marcos dictatorship, though mostly dark and morbid, are like scenes in a dramatic movie. But the legal backdrop for the declaration of martial law is unfortunately, not taken with much interest by many people, except those probably in the legal community. However, not even all those belonging in the legal community are aware of the impact of the judiciarys action during the period of martial law. As evidenced by a remark made by a member of the Batasang Pambansa during class, he was not familiar [with the doctrine laid down in] the Javellana case. It is notable that all resource persons interviewed during class have claimed that there was indeed social unrest prior and during Marcos term as president. The most comprehensive of all lectures, however, was that delivered by Justice Vicente V. Mendoza. In his lecture3, Justice Mendoza, then working as a lawyer in the Office of the Solicitor General, gave a short background of the period prior to the declaration of martial law. From his narration one could see how the events that transpired led to a constitutional monarchy under the Marcos regime. According to Justice Mendoza, a constitutional convention was called in 1970 because the status quo could not be
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Martial Law class, 24 February 2011.

maintained. The government needed to amend the Constitution to address social unrest. Later, even the privilege of the writ of habeas corpus was suspended in order to quell the subversion brewing underground. Although mass protests were generally peaceful, the former justice claimed that one could easily tell that something was amiss. When the privilege of the writ was suspended, the governments position was that the suspension of the privilege was a political question. However, the Court decided otherwise in the Lansang 4 case, stating that it was a justiciable issue the courts could inquire into. Nonetheless, the court upheld the suspension of the privilege of the writ. Despite being on the side of the government, Justice Mendoza acknowledged that the suspension of the privilege created several problems. In sum, there were two problems lawyers had to reckon with: one, arrests and detention were made for personal reasons; two, because of the suspension of the privilege, the courts could not inquire into the validity of the arrest. Martial law was proclaimed after the court upheld the validity of the suspension of the privilege of the writ in the Lansang case and while the constitutional convention was winding up. It seems that Marcos was in a hurry to have the new Constitution (1973) up and running in order to effect changes. In order to railroad its passage, President Marcos sent the draft of the 1973 Constitution to the plebiscite for voting. Later, Marcos decided to hold a citizens assembly to ratify the Constitution.
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Lansang v. Garcia 42 SCRA 448 (1971).

These irregularities led to the Planas5 and Javellana6 cases. In the Planas case, it was argued by the petitioners that due to martial law the people were deprived from exercising their freedom of expression. Hence, they could not readily disagree to the ratification of the Constitution. As a result, Marcos suspended the status of martial law; thus, leading the Courts to declare that the issue in the case has become moot. In the Javellana case, the validity of the 1973 Constitution was questioned because of the irregularity in its ratification. According to Justice Mendoza the Supreme Court did not wholly touch on this issue. In the end, the Court decided that the issue was a political question that they could not decide upon. It seems that the Court had no choice but to uphold the validity of the 1973 Constitution. If it did not, the country would not have reverted to the 1935 Constitution because the government was already implementing the 1973 Constitution. Yet, another analysis of the cases, in light of the factual backdrop of the period, will show that the Court in its passivity had a hunch of things to come. In allowing the president to exercise almost unbridled discretion in changing the Constitution, suspending the privilege of the writ and with it the right to bail, the Supreme Court became the presidents best weapon in establishing constitutional authoritarianism. The judiciary was an instrumental

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G. R. No. L-35925. March 23, 1973. Planas v. Commissions on Elections (1973). G.R. No. L-36142, March 31, 1973. Javellana v. Executive Secretary (1973).

and necessary ally in paving the way for martial law and for allowing Marcos to remain in command for 20 years. It was blatant that Marcos was violating the Constitution with his issuance of presidential decrees and letters of instructions that subjugated basic human rights and civil liberties to the mercy of the State. It was so obvious that there was no way to avoid this but to raise the issue as a political question. Nonetheless, it can be gathered from the other cases such as Lansang v. Garcia and Morales v. Enrile7 that the even if the Court holds that an act of the president is a justiciable issue, it can nonetheless remain a passive ally of the president by affirming the executives acts as necessary due to the social background of that time. The Court, in silently acquiescing to the presidents actions has, in effect, elevated him to a level beyond their reach. Sure, the justices could inquire as to whether the actions of the president were arbitrary or not, but they could not inquire as to his wisdom. The test of arbitrariness is therefore disappointing. It limits the power of the judiciary to review the acts of the president with regard to suspending a very important rightthe privilege of the writ of habeas corpus. It cannot go beyond in determining whether the presidents actions were correct or not for the test is limited to that of arbitrariness. However, what is more disappointing is the pronouncement of the judiciary that the suspension of the privilege necessarily carries with it the suspension of the right to bail. With this we could see that the
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G.R. No. L-61016, April 26, 1983. 121 SCRA 538 (1983).

great constitutional rights were no longer deemed inviolable. The existence of danger against the security of the State has become a justification to suspend such rights without question. The Court, in its decisions with regard to the validity of acts done during the martial law period, have shielded itself from the realities faced by millions of Filipinos during that time. Quoting Justice Marshall, Justice Teehankee in his dissent in Garcia Padilla v. Enrile pointed out, when in doubt as to the construction of the Constitution, the courts will favor personal liberty. Yet, the main decisions in this case and in several other cases would point to the court favoring State security over civil liberties. Gary Olivar, an activist detained during martial law and one of the petitioners in the case of Lansang v Garcia, said that he became an activist because he thought he could change the world but in the end it was the world that changed him. Later, Mr. Olivar became spokes person of former President Gloria Macapagal-Arroyo, notorious for human violations during her incumbency. Aside from Mr. Olivar, there were also those, not invited as resource persons in class who have turned their back from activism. Thus, it would appear that many activists during the Marcos era were driven into activism because of the exigencies of the period. Yet, there are still a few like Dra. Aurora Parong, Dr. Sabino Padilla, and Rep. Neri Colmenares, who remain active in civic organizations and in defending civil liberties and causes for human rights. Despite these realities, once can say
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that the excesses of martial law are a testament to the abuses of constitutional authoritarianism, which because of the passivity of the judiciary, has effectively established an iron hand governing the civil liberties of the people. Although religious statements do not hold bearing in our courts, there is truth in an excerpt by Pope John Paul II, as quoted by Justice Teehankee, Even in exceptional situations that may at times arise, one can never justify any violation of the fundamental dignity of the human person or of the basic rights that safeguard this dignity. Legitimate concern for the security of a nation, as demanded by the common good, could lead to the temptation of subjugating to the State the human being and his or her dignity and rights. Any apparent conflict between the exigencies of security and of the citizens' basic rights must be resolved according to the fundamental principle that social organization exists only for the service of man and for the protection of his dignity, and that it cannot claim to serve the common good when human rights are not safeguarded. People will have faith in the safeguarding of their security and the promotion of their well-being only to the extent that they feel truly involved, and supported in their very humanity." law library
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If there is something to learn from the actions of the judiciary during the martial law period, it is this: a passive judiciary is as dangerous as an active one. The people during the Marcos period, who relied on the wisdom of the courts, could no longer turn to the judiciary as a protector of their rights. Martial law is a law of necessity in order for the State to have an opportunity to protect itself from uncontrollable civil unrest, but its exercise by Marcos during his time was done with irregularities that the court should have looked into. The trail left by the judiciary with its decisions is marred with blood and torture. Through its inaction, the president was able to practically do anything it wanted to quell resistance groups in the hope that civil unrest would die down. Little did he know that such abuses further flamed the hearts of many to take their small dissident voices in the streets where it was eventually heard.