Marcos was the worst (2): The SC

After the Aug. 21, 1971 Plaza Miranda bombing, President Ferdinand Marcos suspended the writ of habeas corpus. Proclamation No. 889, which allowed the police to make arrests without warrants and to detain the arrested without charges, took effect immediately but was announced to the public only after a few days. It seems clear now that the tactic was a dress rehearsal for the full-scale imposition of martial law the following year.

Marcos, entering the second half of his second and last term, was anxious about how the Supreme Court would rule on the constitutionality of the suspension of the writ, which had been immediately challenged. So he did what came naturally to him: He subverted yet another democratic institution.

Soon after hearings on the case started, he invited his first appointee to the Supreme Court, Associate Justice Fred Ruiz Castro, for a consultation. The following extended passage from “Diary of a Dictator” by the journalist William Rempel (whose name I had mistakenly pluralized—Rempels—in an earlier column) makes for disturbing reading.

“On Tuesday night, September 16, 1971, Justice Castro was a special guest at the presidential palace for a private session that reeked of legal and ethical conflicts. Over a late evening dinner, the judge described how the case was playing to his colleagues on the bench. He handicapped the current leanings and likely votes of each justice. It was the judge’s first act as a spy for the Marcos legal team.

“The president, in turn, lobbied the jurist. Spared any cross examination or challenges to accuracy, Marcos made arguments and shared classified documents supporting his widely disputed claims of a Communist insurgency and the purely specious allegations that Senator [Ninoy] Aquino was in league with the New People’s Army.

“The mere fact that the jurist met secretly with one side violated a raft of legal principles from basic rules of fairness and due process to the separation of powers. And Justice Castro offered Marcos what sounded to the president like a magic trick. If Marcos immediately lifted the suspension in some regions of the country, Castro believed that he could persuade the court to uphold the president’s previous proclamation unanimously.

“The possibility of an 11-0 Supreme Court decision instantly captured Marcos’s imagination.”

Rempel, who has closely studied the diaries Marcos left behind when he and his family fled the country in 1986, need not have hedged. The discussions did not only reek of legal and ethical conflicts; they were patently illegal, deeply unethical—and subversive.

The Marcos diaries are problematic documents, because they seem designed to project the larger-than-life, history-straddling self-image Marcos was assiduously creating. And yet (from what I’ve read in Rempel and on the Philippine Diary Project) there are passages that reflect unexpected light on Marcos’ concerns: episodes of anxiety, bouts of diarrhea, confessions of “boorishness” toward his wife Imelda and, not least, detailed descriptions of illegal and unethical practices, such as his “consulta” with Supreme Court justices. He genuinely seems to have thought that there was nothing wrong with lobbying constitutionally independent justices in secret sessions.

The Court did rule unanimously (there were only 11 seats on the Court at the time) in favor of suspension. Marcos, the famous bar topnotcher, called the decision his “biggest legal victory.”

But the sessions with Castro (or other justices) did not end in 1971. In the same way that Marcos’ suspension of the writ was a trial run for the declaration of martial law, his meetings with the justices paved the way for more secret consultations.

Here, for instance, is his diary entry for Sept. 25, 1972, a few days after martial law had been imposed.

“Met Justices Fred Ruiz Castro and Salvador Esguerra on a consulta.

“I told them frankly that I needed their help and counsel because we must keep all the actuations within constitutional limits.

“Justice Castro asked permission to ask a blunt question, ‘Is this a coup d’etat?’ and I told him that it is not but it is the exercise of an extraordinary power by the president for a situation anticipated by the constitution.

“Justice Esguerra said immediately that he feels that it is a legitimate exercise of martial law.

“And apparently reading my mind, he said, in the Merriman case, Justice Tannay [Marcos meant Chief Justice Roger Taney of the US Supreme Court] had issued a writ of habeas corpus for a man who was detained on orders of President Lincoln. And President Lincoln just disregarded the judicial order. And Justice Tanney said, ‘what can we do, we are confronted by a superior authority?’

“I then concluded that there must be no conflict between the two separate departments of Justice and Executive for it would be embarrassing to both.

“I believe that they are both of this persuasion.”

Marcos ends this evening entry with a note of self-congratulatory amazement: “It is indeed gratifying that everyone now finds or discovers I am some kind of a hero! There is nothing as successful as success!”

One more passage from his diary, which I also sourced from the Philippine Diary Project. It is Jan. 30, 1973, and Marcos is recalling the events of the previous day.

“The dinner with the Justices without Chief Justice [Roberto] 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.’”

Under the most antidemocratic Filipino government in history, Castro and other justices certainly did.

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The first “Marcos was the worst” column ran on Sept. 10, 2013.