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Supreme Court upheld legality of martial law

This is another of the anti-Marcos bashers’ big lie, their concocted revision of history. The Supreme Court in fact ruled in two decisions that martial law was constitutional and Marcos’ proclamations, decrees and other official acts were legal. These decisions were in General Register L-35546 of Sept. 17, 1974 by the First Division and GR L-40004 of Jan. 31, 1975, by the court sitting en banc (i.e., the whole court).

The historic headline on Sept. 24, 1972.

In fact and law

“The Philippine Supreme Court today endorsed the martial-law regime of President Ferdinand E. Marcos by ruling that he was president in fact as well as by law.

“The challenge to Mr. Marcos’ office and legislative powers was filed by 14 citizens led by the detained former senator Benigno Aquino. Former senator Lorenzo Tañada argued the case in lengthy hearings before the court. on Thursday.

“The 11-man court, with only one justice dissenting on part of the ruling, found there was constitutional support for President Marcos’ continued one-man rule and his power to legislate as well as to conduct the national referendum he has scheduled for Feb. 27.”

It isn’t exactly true though that one justice, Claudio Teehankee, “dissented.” His opinion was in fact termed “concurring and dissenting opinion.” (Emphasis mine.)

In fact, Teehankee’s first sentence in his “opinion” was as follows: “I concur with the main opinion insofar as it recognizes President Ferdinand E. Marcos as the “incumbent President” and head of government who is vested with authority under Article XVII, section 3 (1) of the Transitory Provisions of the 1973 Constitution…”

Dissent

Teehankee’s dissent was that the 1973 Constitution ratified in January 1973 expressly mandated that the National Assembly (the new legislative body replacing Congress) should have been created immediately which would have assumed the power to enact laws. However, the assembly had not yet been created in 1975 when the court deliberated on the constitutionality of martial law, with President Marcos de facto continuing to exercise that power through his presidential decrees and other forms of issuances.

The New York Times Feb. 2, 1975 article.

If there is a force to be blamed for martial law, and the Supreme Court’s ruling that it didn’t violate the Constitution, it would be the Communist Party of the Philippines, and its incessant propaganda that it has grown since its founding.

As Justice Felix Makasiar who wrote the court decision — which Chief Justice Makalintal and the other justices concurred with — wrote:

“I am convinced [as are the other justices], without need of receiving evidence as in an ordinary adversary court proceeding, that a state of rebellion existed in the country when Proclamation No.1081 was issued. It was a matter of contemporary history within the cognizance not only of the courts but of all observant people residing here at the time. Many of the facts and events recited in detail in the different ‘Whereases’ of the proclamation are of common knowledge.

Rebellion

“The state of rebellion continues up to the present. The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and materiel, fifth-column activities including sabotage and intelligence — all these are part of the rebellion which by their nature are usually conducted far from the battle fronts.”

Another justice, Felix Antonio, even went into great detail to claim how serious the communist insurgency had become that there was no doubt that the imposition of martial was necessary to defeat it:

“The Kabataang Makabayan (KM), the most militant and outspoken front organization of the radical left, has increased the number of its chapters from 200 as of the end of 1970 to 317 as of July 31, 1972 and its membership from 10,000 as of the end of 1970 to 13,000 as of the end of July, 1972, showing very clearly the rapid growth of the communist movement in this country.

“The Samahang Demokratiko ng Kabataan (SDK), another militant and outspoken front organization of the radical left, has also increased the number of its chapters from an insignificant number at the end of 1970 to 159 as of the end of July 1972 and has now a membership of some 1,495 highly indoctrinated, intensely committed and almost fanatically devoted individuals.

Army

“The New People’s Army, the most active and the most violent and ruthless military arm of the radical left, has increased its total strength from an estimated 6,500 (composed of 560 regulars, 1,500 combat support and 4,400 service support) as of January 1, 1972 to about 7,900 (composed of 1,028 regulars, 1,800 combat support and 5,025 service support) as of July 31, 1972, showing a marked increase in its regular troops of over 100 percent in such a short period of six months;

“The establishment of sanctuaries for the insurgents in Isabela, in Zambales, in Camarines Sur, and in some parts of Mindanao, is a development heretofore unknown in our campaign against subversion and insurgency in this country.”

What actually strengthened Marcos’ rule was his deft shepherding of the adoption of the new Constitution in 1973. Justice Makasiar pointed out its profound implications: “My view, which coincides with that of other members of the Court as stated in their opinions, is that the question of validity of Proclamation No. 1081 [which imposed martial law] has been foreclosed by the transitory provision of the 1973 Constitution [Art. XVII, Sec. 3(2)] that ‘all proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land and shall remain valid, legal, binding and effective even after… the ratification of this Constitution…'”

Even Justice Cecilia-Munoz Palma, who after retirement from the court joined the anti-Marcos opposition, wrote in her “separate opinion”: “I hold the view that the President is empowered to issue proclamations, orders, decrees, etc. to carry out and implement the objectives of the proclamation of martial law be it under the 1935 or 1973 Constitution, and for the orderly and efficient functioning of the government, its instrumentalities and agencies.”

Transitory

One of the many important consequences of this transitory provision is that the Marcos regime’s imprisonment of about 7,000 (going by the figures of the Human Rights Victims Claims Board) suspected or proven insurgents — which the Yellows and the Reds claim were “human rights victims” — was perfectly legal. Marcos’ proclamations and decrees had authorized the defense department and the Philippine Constabulary to issue the so-called ASSOs — “arrest, search and seizure orders,” the legal document for the arrest and incarceration of insurgents and even the opposition.

The anti-Marcos critics though have been claiming that the Supreme Court justices were simply cowed into making the decision to uphold martial law. Historian Ambeth Ocampo claimed for instance that Marcos threatened to instead declare a “revolutionary government” if the Supreme Court did not uphold martial law. “The Court blinked,” he wrote in his column

That collector of historical trivia obviously sees himself as more knowledgeable in law than the justices, renowned legal luminaries who upheld the constitutionality of martial law. I don’t think he has even read this historic 50-page decision, which any historian worth his salt would have done. The justices were Chief Justice Querube Makalintal, Fred Ruiz Castro, Claudio Teehankee, Cecilia Munoz-Palma, Felix Antonio, Antonio Barredo, Estanislao Fernandez, Enrique Fernando, Salvador Esguerra, Felix Makasiar and Ramon Aquino — all served their terms without the slightest whiff of corruption or legal incompetence.

None of these justices ever wrote nor were reported to have regretted their decision, nor were forced to make these. None have been accused of having been bought by Marcos to uphold the constitutionality of martial law. This undoubtedly gave Marcos the strong legal basis to rule for another 10 years

The military of course swore their oaths to be faithful to defend the laws of the land — which only the Supreme Court is empowered to interpret.

Whether they were cowed to uphold martial law or not is really irrelevant. Our republican system puts the Supreme Court as the body that determines what is legal or not, and not claims by individuals and organizations.


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