Monthly Archives: October 2014

Martial Law: Courts, Cronies, Cohorts

This article is from my father Cesar T. Tirol (Doctor of Laws [Sobresaliente], University of Madrid; Bachelor of Laws [Summa cum Laude], University of San Agustin; Dean Emeritus, University of San Agustin College of Law.

The column of John Nery (Philippine Daily Inquirer September 23, 2014, Marcos was the worst (2): The SC) as well as that of Armando Doronila (PDI October 1, 2014, Pendulum Swing) on the President’s secret “consultas” with the justices, as recorded on his own diaries, concerning their feelings towards his suspension of the writ of habeas corpus, strategies to salve their conscience, including eventually his declaration of martial law, illustrates the shortness of memory of those who should have treasured it most.

From their lofty perches they lost the vision of the Norman barons who, once upon a time (1215) in a little island on the Thames river of far-away England, confronted, “with swords in their hands, “ a recalcitrant King John, and extorted from him the Magna Carta. It was said of them –

“The Norman baronage represents the element of power among the makers of this jurisprudence. In spite of individual exceptions who were cruel and oppressive, the mass of the Normans insisted upon law and order. They demanded men learned in the law for judges, and insisted that the judges should be independent of royal dictation. They asked for their own rights, but in Magna Charta insisted upon the rights of their humblest followers. In the years when the baronage was fighting John or Henry III, when civil war was distracting the land, practically the same judges went on holding court at Westminster, uninfluenced by the varying fortunes of barons or of king” (Zane, The Five Ages of the Bench and Bar of England).

That document was a “limitation upon arbitrary power” and stressed the principle that the King was not above the law of the land. Its most famous clauses are Nos. 29 (or 39) and 61.

“C. 29 provides that “no freeman shall be taken, or imprisoned, or disseised from his freehold, or liberties, or immunities, nor outlawed, nor exiled, nor in any manner destroyed, nor will we come upon him or send against him, except by legal judgment of his peers or the law of the land. We will sell or deny justice to none, nor put off right or justice.”

The right to trial by jury is consecrated in the U.S. Constitution (Amendments V and VI, 1791). Unknown in the Philippines, where judges have the judicial power to make findings of both fact and law, in the jury system the trial judge cannot make factual holdings. Any trial lawyer knows that the facts are the decisive elements in any case. The King, or tyrant, is denied the power to dictate what finding his appointed judge shall make.

It is often overlooked that this clause was the seminal basis for the development of the writ of habeas corpus (its suspension was the subject of the first Marcos consulta). The 1627 Darnel’s Case or the Five Knights case was handled by Sir Edward Coke, the former Lord Chief Justice, who attacked their imprisonment “upon special command of the King,” without any other reason being shown. His famous Petition of Right became known as the second Magna Carta (Marke, Vignettes of Legal History, 1965, page 200). There were vicissitudes, but eventually –

“By the time of Blackstone, the Writ of Habeas Corpus was held in such high esteem, that he referred to it in his Commentaries as the “most celebrated writ in the English law” and as “The great and efficacious writ, in all manner of illegal confinement.” Samuel Johnson told Boswell proudly that “The habeas corpus is the single advantage our government has over that of other countries.” (Vignettes, Ibid., pages 203-204).

The Petition of Right and Darnel’s Case is reflected in the Sixth Amendment to the U.S. Constitution, which reads that “In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation….”

The “subservience” of the court is epitomized in an image of a Chief Justice holding an umbrella over a fair lady (unhappily caught on camera for posterity), but what a kinder judgment would regard as a mere gentlemanly gesture pales in comparison with the stark revelation made in the diaries. Nery calls the discussions “patently illegal, deeply unethical – and subversive” while Doronila says that Marcos’ acts “dismantled the entire institutional structures that underpinned Philippine constitutional democracy, including an independent Supreme Court and legislature and a free press.” A contributor to the Inquirer series simply states the fact that “it was the Supreme Court that legitimized the Marcos dictatorship” (Raissa Robles, PDI October 1, 2014, The Marcoses Never Really Left Home).

Appalling euphemisms blared forth – that the Constitution was “under anaesthesia” or that the nation was under a benign “constitutional authoritarianism.”

The lower court judges “got the message.” Powerful law offices ruled the roost, among lesser lawyers stories were rife about their getting an order from the judge by a mere telephone call, or by a judge being assigned to a certain court because there was a case there in which certain parties were interested. An anecdote I cannot forget is about a certain judge in Manila who was of the old school, who chided a lawyer for his flamboyant attire, the judge said that he “looked like a lumberjack.” But the lawyer while young was already well-connected, and in a week the judge was asked to resign.

In the economic sphere another Inquirer contributor writes of the plunder of national wealth, and monopolization of lucrative enterprises, placing them in the control of cronies and relatives (Ana Roa, PDI September 24, 2014, Regime of Marcoses, cronies, kleptocracy).

A despotism results in the proliferation of the worst type of man, and suits the agenda of those who have an appetite for flattery and intrigue. This brings to mind the speech of Thomas Erskine, then the most celebrated trial lawyer in England, in defense of Tom Paine, who in 1792 was charged with libelling the royal family and Parliament by writing Rights of Man. The accused was safe in France so in effect Erskine rose to the defense of British liberties. He quotes the reasons of Burke, who opposes a reform by taking away the salaries of the lords who “attend upon the British court.”

“ “You would,” said he, “have the court deserted by all the nobility of the kingdom.
“Sir, the most serious mischiefs would follow from such a desertion. Kings are naturally lovers of low company; they are so elevated above all the rest of mankind that they must look upon all their subjects as on a level; they are rather apt to hate than to love their nobility on account of the occasional resistance to their will, which will be made by their virtue, their petulance, or their pride. It must, indeed, be admitted that many of the nobility are as perfectly willing to act the part of flatterers, talebearers, parasites, pimps, and buffoons, as any of the lowest and vilest of mankind can possibly be. But they are not properly qualified for this object of their ambition. The want of a regular education and early habits, with some lurking remains of their dignity, will never permit them to become a match for an Italian eunuch, a mountebank, a fiddler, a player, or any regular practitioner of that tribe. The Roman emperors, almost from the beginning, threw themselves into such hands, and the mischief increased every day till its decline and its final ruin.”

Thus martial law was also the age of the cronies, high and low, who cornered businesses and official positions, and got themselves to a rubber-stamp lawmaking body, and unabashedly used power, connections, and influence to entrench themselves. And they were not mere newcomers, some were of the old families who knew which side the bread was buttered on, and were always afloat during the Spanish Times, down to the coming of the Americans, the Commonwealth period, and after independence. They were on a first-name basis with the dictator.

Greed and avarice are what fuel the engines of fraud, intimidation and violence. Thus every despot must have an apparatus of armed suppression.

It is to the credit of the later justices that they have fine-tuned the writ of habeas corpus through the writ of amparo and kindred remedies.

In contrast to the Marcos years, the Supreme Court is jealous of its independence and has been firm in
wielding its certiorari power, particularly against the pork barrel. For this contains the seeds of a new cronyism.

Lest we forget, the power of judicial review is the last resort against executive and legislative abuses. But the Supreme Court is now accused of “judicial overreach,” presently provoked by the pork barrel cases.

Red Flags for Today

“With swords in our hands,” we should prevent the monopolization of power, particularly economic power, by any of the three branches.

A wily President can enslave the Court through gifts, material or otherwise, and court-packing can be a means of control over its decisions.

Diminution of the Supreme Court’s power of judicial review (1987 Constitution, Art. III, Sec. 1) will be justified only if it wields the power for unjust ends, contrary to the common good.

Thus it is vital to fill the judiciary with men and women of competence, good intentions, and efficient and effective dispensers of justice.

As we know, the trial courts have the awesome power to make findings of fact, unlike their British and U.S. counterparts. These findings are well-nigh unalterable on appeal.

The President can also use economic leverage to gain a majority in Congress. This can eventually lead to their mutual unending tenure in office.

Power corrupts, and history repeats itself, as events after the flight of Marcos show.