The Final Blow: A compromised Supreme Court legitimized Martial Law

As the year 1972 ended for the Philippines, things that have been set into motion by President Ferdinand Marcos since his first term began in 1965 was coming into fruition. The rigged Constitutional Convention, tasked to rewrite a new Constitution for the Philippines, had handed to the President awesome political powers on a silver platter. Primitivo Mijares, a former Marcos pressman and soon after, a victim of forced disappearance, would reveal in his controversial book that sometime in November, in a meeting of the President and the military, First Lady Imelda Marcos retorted:

“Pasalamat kayo at mayroong Gimo De Vega. Kung hindi siya nag-maniobra sa Con-Con upang matalo ang ‘ban-Marcos’ resolution, wala tayong “1081” ngayon.”

Guillermo De Vega, the one who pulled the strings in the ConCon, was of course, Marcos’ Presidential Assistant.

Meanwhile, MERALCO, which was taken over by the government from the Lopezes (and soon be given to a Marcos crony), had slashed electrical power rates to the delight of the common people, which, unknown to them would disturb market prices and further contribute to the downfall of the economy. Meanwhile, the Armed Forces, committed to fulfilling the task given to them by the President, have conducted raids across the country, from the halls of the academe to the private homes of citizens suspected of subversion. With the Writ of Habeas Corpus suspended, arrests could be made without the need of evidence and with only the slightest hint of suspicion. Even an office in the UP Department of Political Science building was ransacked on October 8th as the military thought it was the desk of Francisco Nemenzo, President of the University of the Philippines. Intellectuals and those who could oppose the dictatorship were either intimidated or rounded up. They always come for the intellectuals first, the group of people who almost always harbor dissent.

Furthermore, Marcos directed Defense Secretary Juan Ponce Enrile to seize not only the assets of the Lopezes, but also all the assets of a certain businessman named Fernando Jacinto, a vocal Marcos critic. The government proceeded to take over Jacinto Steel Inc., Jacinto Iron and Sheets Corporation, J&P Shipping Corporation, Beatriz Marketing and Trading Corporation, and Ferro Products Inc.

By the end of November, Eugenio Lopez Jr. and Sergio Osmeña III were also arrested by the military for allegedly masterminding an assassination attempt on President Marcos. The source of intel, as revealed by Marcos, was the U.S. Federal Bureau of Investigation. Helpless for having been incarcerated without a fair hearing, they were detained in Fort Bonifacio.

Whether true or not, the stoked assassination fears would become a reality when on December 7, 1972, in an open air meeting, First Lady Imelda Marcos was suddenly attacked by a man with a bolo, a man named Carlito Dimahilig. He was shot dead by the Presidential Guard Battalion on the spot, as Imelda survived with a few bruises.

*The video footage of the failed assassination attempt on First Lady Imelda Marcos on December 7, 1972. Courtesy of My Footage.Com.

By December, some of the freed opposition leaders immediately filed their case to the Supreme Court questioning the legality of Martial Law and seeking to halt the plebiscite for the new Constitution. Senator Salvador “Doy” Laurel, perhaps judging that the political atmosphere had become more stable, decided to go home. Of course, he was aware that in the list of personalities to be arrested on the eve of the implementation of Martial Law, he was second only to Senator Aquino. He escaped arrest because he was in New York at the time. One must also remember that Marcos allies had Jose B. Laurel Jr., Doy Laurel’s brother, deposed as House Speaker in 1971 so that Marcos could fully control the lower chamber. As soon as Laurel landed in Manila International Airport, Defense Undersecretary Manny Salientes handed him an invitation from President Marcos to call on him in the Palace.

He writes on his diary:

I had been away for three months. I didn’t know all the facts. So I told myself: Let’s see what the real score is. And I looked around. There was curfew: people were hurrying home before midnight. The public was using the pedestrian lanes. Private armies had been disbanded. There seemed to be a bit more peace and order. Our balance of trade had shown some improvement. But against this was the loss of basic liberties, the jailing of opportunists, the muzzling of the press.

President Marcos, unusually jovial, welcomed Senator Laurel at Malacañang. According to Laurel’s account, the President himself pleaded that he accept Martial Law. Laurel only replied, “Mr. President, martial law, which you now hold in your hands, is a double-bladed weapon. It can be used to cut for good or evil. Use it only to cut for good, Mr. President, and you won’t have to worry about me.” In a few years time however, he would soon find a just reason to join the opposition.

The Supreme Court subsequently began its oral arguments on the merits of the case beginning December 18, as the petitioners who challenged Martial Law and the proposed charter faced the justices and relayed their arguments. Marcos announced on December 23 the scheduled plebiscite of the new Constitution in January, and the temporary suspension of Martial Law to allow free debate on the new charter.

Before the year ended, through the Daily Express, the only publication allowed at the time, Marcos appealed  “to diverse groups involved in a conspiracy to undermine… to desist from provoking a constitutional crisis… which might result in the exercise by me of authority I have not exercised.” Senator Arturo Tolentino wrote in his memoir that this was clearly a threat on senators and congressmen who still insisted on meeting on January 22, 1973, the opening session of Congress as set by the 1935 Constitution. Nevertheless, the secret bipartisan caucus of Senate leaders proceeded with their plan to go to Congress on the scheduled date.

On New Year’s Day of 1973, judging that the nation would overwhelmingly reject the new Constitution through a plebiscite, President Marcos issued Presidential Decree No. 86, s. 1972 that there would be no plebiscite for the new Constitution’s ratification. Instead there would be a “Citizen Assembly” to be convened in January 1973.

The Citizen Assembly was a concocted Marcos term wherein citizens cast their vote in their respective barangays not via secret ballots as should normally be done but via Viva Voce, meaning, citizens would get to vote in favor for or against the new Constitution by verbally shouting “Yes” or “No” in a meeting assembled by a presided chair. According to political analyst David Wurfel, the problem with the setup was that it was prone to be rigged, as these assemblies, when they were implemented, had the presence of the military (which was a form of intimidation), and that negative votes were not recorded. Reports also indicated that mayors and governors were given quotas for the “yes” vote for the new Constitution while, the voting age was lowered from 21 to 15, ensuring the yes vote.

The Citizen Assemblies lasted from January 10 to 15, 1973, a mere 5 days. Clearly it was done in haste. Furthermore, on its last day, at dawn, a drug lord, Lim Seng was executed by a six-man firing squad. What was so peculiar in this execution was that aside from having the criminal charged by a military tribunal (not a civilian court), the execution wasn’t done in the seclusion of a penitentiary but in broad view of the public, shown for the first time, in full gore, on national television. It’s as if the message was already implied–that in the context of the new constitution to be voted for, military rule would reign supreme.

*The drug lord, Lim Seng was about to be executed in this photo. He was tied to a pole and blindfolded. When the firing squad shot him on live television, he did not die immediately, but instead bled to death. Screengrabbed from the documentary, “Batas Militar” (1997).

Two days later, President Marcos announced the tremendous “success” of the ratification of the new Constitution. According to official reports, there were 90% of the electorate who voted in favor of the new charter. But this figure remained dubious because people knew that many of their communities were never even able to participate in these Citizen Assemblies.

Meanwhile, the opposition composed bipartisan legislators were determined to go to the Legislative Building for the January 22 opening session. The tensed political environment, coupled with the uncertainty of whether the ratified new charter would be upheld by the Supreme Court were hanging on everyone’s heads.

January 22, 1973 came, and it was morning. The opposition legislators marched to the Legislative Building half expecting soldiers surrounding the building to stop them. When they got there, they found out that the doors to the session halls of both Senate and House were both bolted and padlocked. They were also met by soldiers who told them that the premises were off-limits. It was a vivid picture of what had happened to the very institution that represented the voice of the people in legislation. That voice had effectively been silenced.

*Senators Doy Laurel, Eva Estrada Kalaw, Ramon Mitra, Gerry Roxas, and Jovito Salonga in front of the entrance of the Senate Session Hall at the Legislative Building. Mitra held the padlock that closed the Senate, January 22, 1973. Source: Presidential Museum and Library.

With the media controlled by strict government censorship, and Congress padlocked, the last free standing institution that could resist Executive power was the Supreme Court. Hence, Marcos immediately implemented his plan, in one of the most unconstitutional deeds done by any Philippine president sworn to protect and defend the charter.

The President invited the high magistrates for dinner, reminiscent of the Quintero dinner.

On January 24, 1973, Marcos writes on his diary:

Had as usual only 6 hours sleep and seem to be tense because of the possible constitutional crisis that may come out of an adverse Supreme Court decision on the petition against the ratification of the new constitution.

So I worked up to 12:00 am on the presentation of the problems we are facing and the absolute necessity of referring the matter to the citizens assemblies as well as the possible approaches and solutions.

Then worked on the orders implementing the New Constitution.

As I tentatively meet the members of the Supreme Court on Saturday or Monday evening. The Chief Justice called up Sol. Gen. Estelito Mendoza Monday morning Jan. 22nd, to tell him that the court was at the disposal of the President for dinner…

Whether Chief Justice Roberto Concepcion really called up and agreed with Marcos on dinner, cannot be ascertained. But it was clear from Concepcion’s side that he did not agree to this, and even at dinner, he told Marcos an excuse not to go.

Before the scheduled dinner with the Justices, Marcos writes:

“Chief Justice Concepcion is sick in the hospital and may not be able to attend the dinner on Monday.

It is apparent that the other justices are in favor of dismissing the petition questioning the validity of the ratification of the New Constitution.

But they want to be assured of their continuance in office under the new constitution with new appointments […]

But everybody else has accepted the new constitution and as we put it in the dinner conference we held tonight, how do the justices expect us to “unscramble the eggs already scrambled”?

We have to handle them with finesse as the Supreme Court might become the rallying point of the opponents of reform.”

Marcos applied that “finesse” at his dinner with the Justices, many of whom were quickly swayed by the President. In fact, one must question if at that very moment, the independence of the Judiciary from its co-equal branch was handed to it with a happy grin. We only get a glimpse of the dinner conversation from Marcos’ diary dated January 30:

“…the dinner with the Justices without Chief Justice Concepcion who is sick in Sto. Tomas Hospital turned out well.

Casually I turned into the problems the country was facing requiring an unquestioned position of leadership for negotiations. As Justice Fred Ruiz Castro said, “I get the message, Mr. President.”

By March, the two incarcerated opposition senators Ninoy Aquino and Jose Diokno continued to languis in isolation, as they were moved to a more secluded military base, at Fort Magsaysay, Laur, Nueva Ecija.

The moment of decision came finally on March 31, 1973.

The Supreme Court, with the vote of 6 to 4, voted in favor of the new 1973 Constitution, by virtue of the Javellana v. Executive Secretary. In the decision, the Court held that the proposed Constitution was invalid according to the 1935 Constitution saying it “had not been ratified in substantial compliance with applicable constitutional provisions.” And yet, despite that it declared that there was no judicial obstacle for its application. Subsequently, the habeas corpus petitions were dismissed, and that Martial Law was held as a political question beyond the jurisdiction of the court. The decision essentially validated the 1973 Constitution, replacing the 1935 Constitution.

The final blow was struck. The Judiciary, the final arbiter and interpreter of the Constitution, had been compromised.

*Portrait of Chief Justice Roberto Concepcion, Chief Justice of the Supreme Court of the Philippines from June 17, 1966 to April 18, 1873. Source: Presidential Museum and Library.

The Chief Justice himself, dissenting in the decision, wrote:

Indeed, I cannot, in good conscience, declare that the proposed Constitution has been approved or adopted by the people in the citizen’s assemblies all over the Philippines when it is so, to my mind, a matter of judicial knowledge, that there have been no such citizen’s assemblies in many parts of the Philippines.

The dissenting justices, aside from Chief Justice Roberto Concepcion were Justice Calixto Zaldivar, Enrique Fernando, and Claudio Teehankee. In silent protest over the decision, the Chief Justice stepped down on April 18, 1973, fifty days earlier from his mandatory retirement.

By July 1973, Marcos wrote on his diary:

“Strange feeling–to be able to win without any effort.”

Strange indeed.

The Road to Martial Law is a series of blog posts documenting the unprecedented rise of a Filipino dictator and the sudden death of Philippine democracy with the declaration of a nationwide Martial Law via live television on September 23, 1972.

The Road so far:

- It Takes a Village to Raise a Dictator: The Philippines Before Martial Law

- Marcos Beginnings

- Truth or Dare?: Marcos during WWII

- The Turbulent ‘60s and Marcos’ Ascent to Power

- The Gathering Storm: Beginnings of the Communist insurgency and Moro secessionism in the ‘60s

- The First Quarter Storm of 1970: The Philippines on the Brink

- A Plan for the Endgame: Plots, Protests, Scandals and Assassinations

- Pawns in Cities lobbed with Bombs: Events leading to the Plaza Miranda Bombing

- Hijacking Democracy: The Mood before the Declaration of Martial Law

- September 21, 1972: When Martial Law Had to Wait for One More Day

- Like a Thief in the Night: Martial Law Implemented on September 22, 1972

- The Long Night Begins: Martial Law Announced on Live Television, September 23, 1972

- A Mere Scrap of Paper: The Constitutional Convention Hijacked under Martial Law

- The Final Blow: A compromised Supreme Court legitimized Martial Law

- Road to Martial Law Redux: A Conclusion to a Series

Photo above: Editorial Cartoon from the Philippines Free Press, circa 1972, by E.Z. Izon.

Bibliography

Espiritu, Augusto Caesar, “Sunday, October 8, 1972,” Philippine Diary Project, link.

Gleeck, Jr., Lewis E. President Marcos and the Philippine Political Culture. Manila: Loyal Printing, Inc., 1987.

Gloria, Claro. Martial Law in the Philippines: A Constitutional Revolution. Quezon City: Central Lawbook Publishing Company, 1974.

Javellana vs. Executive Secretary, G.R. No. L-36142, March 31, 1973, link.

Joaquin, Nick. Doy Laurel in Profile: A Philippine Political Odyssey. Makati: Makati Trade Times Publishing Company, 1985, 1985.

Mijares, Primitivo. The Conjugal Dictatorship of Ferdinand and Imelda Marcos. San Francisco: Union Square Publications, 1976.

Official Gazette of the Republic of the Philippines, “Official Week in Review, January 12-18, 1973,” link.

Quezon III, Manuel L., “The fabric of freedom: 10 years after EDSA, February 25, 1996” Quezon.Ph.

Salonga, Jovito. A Journey of Struggle and Hope: The Memoir of Jovito R. Salonga. Quezon City: U.P. Center for Leadership, Citizenship and Democracy, 2001.

Tolentino, Arturo M. Voice of Dissent. Quezon City: Phoenix Press, Inc., 1990.

Rempel, William. Delusions of a Dictator: The Mind of Marcos As Revealed in His Secret Diaries. Boston, MA: Little, Brown & Co., 1993.