5946 16820 1 PB

FORUM 4 ARKITEKTURANG LEGAL NG AWTORITARYANISMONG MARCOS 169
Kasarinlan: Philippine Journal of Third World Studies 2012–13 (27–28): 169–212
FORUM 4
‘Pag Meron Ka Nito, Wala Kang Talo!

Ang mga Abugado, ang Hudikatura, at ang
Arkitekturang Legal ng Awtoritaryanismong
Marcos
Miyerkules, 15 Enero 2014, 1:00–4:00 n.h.

Pulungang Claro M. Recto (Faculty Center Conference Hall)
Bulwagang Rizal, Kolehiyo ng Arte at Literatura
Unibersidad ng Pilipinas (UP) Diliman
MARIA LUISA T. CAMAGAY (P ROPESOR , D EPARTAMENTO NG

KASAYSAYAN, KOLEHIYO NG AGHAM PANLIPUNAN AT PILOSOPIYA, UP DILIMAN):
Magandang hapon po sa ating lahat. Magandang hapon sa ating mga
estudyante na siguro [ay] dapat naririto dahil wala kayo masyadong kaalaman
tungkol sa paksang martial law at administrasyong Marcos. Magandang
pagkakataon na ito. Ito ay isang serye na itinataguyod ng Third World
Studies Center. Ngayong hapon ay mapalad tayong makasama ang sumusunod
na tagapagsalita na magbibigay liwanag naman sa aspektong legal ng
deklarasyon ng martial law. Magbibigay ng paunang pagbati, ang kasalukuyang
direktor ng Third World Studies Center, na si Dr. Ricardo Jose.
RICARDO T. JOSE (DIREKTOR, THIRD WORLD STUDIES CENTER AT

PROPESOR , D EPARTAMENTO NG KASAYSAYAN, KOLEHIYO NG AGHAM
PANLIPUNAN AT PILOSOPIYA, UP DILIMAN): Magandang hapon sa inyong lahat.
We have a very high-powered panel this afternoon. But I would like to
give some regrets first, apologies because one of those we really had
hoped would come, Atty. Rene Saguisag . . . wanted to come, until
we heard early this week that he is in the hospital since Sunday and ayaw
170 KASARINLAN VOL. 27 (2012)–VOL. 28 (2013)
payagan ng doctors niya na lumabas. But he was looking forward to this.

Anyway, he gave us a quick summary of what he wanted to say.
Maraming salamat sa pagdalo ninyo dito sa forum na ito and welcome
to the fourth of five public forums organized by the Third World
Studies Center. This is a series that was meant to tackle the legacies,
implications, and the various aspects of martial law and the Marcos
administration. It is now over forty years since martial law was
declared—which is more than one generation actually—and memories
are fading, the eyewitnesses are going, but [many of] the issues of the
martial law era have not been fully resolved. There are various
consequences that we are still facing today and some of these have been
written about, but many more have not yet been written about and
have not been tackled. In light of the fact that it has been more than
one generation since those difficult years, the Third World Studies
Center has embarked on this series to try to document, examine—to
reexamine, if you will—the issues of that controversial period.
In this fourth forum, we are going to discuss the role of lawyers, the
judiciary, and the legal architecture of the martial law regime. For
better or for worse, UP played a strong role in this. Some of the
presidential decrees as a matter of fact are still much in force, while
others have been rescinded because they no longer apply. We are
fortunate to have with us a group of experts in the field. One issue, I
guess, in all of these is that President Marcos was a lawyer and he knew
how to get things done following the legal framework. And lawyers
speak a different language—a legalese type of language—which most of
us are not very familiar with. So, this afternoon we have two lawyers
who will speak to us in more understandable language and we have one
journalist who is very familiar with the activities of that time and is very
familiar with the personalities of that period.
We apologize in advance for the inability of Atty. Saguisag to
participate in this afternoon’s forum much as he wanted to. But the
other members of the panel, I think, are well familiar with the topic at
hand, being lawyers and having practiced and taught or studied law.
Once again welcome to all and may we all have a truly fruitful
afternoon.
CAMAGAY: Sa pagkakataon na ito, ibig kong ipakilala ang ating mga

tagapagsalita. Si Prop. Froilan Bacungan ay naglingkod bilang ikapitong
dekano ng Kolehiyo ng Batas ng UP mula 1978 hanggang 1983. Sa ilalim
ng panunungkulan niya itinatag ang ilang mga institusyong akademiko sa
Kolehiyo ng Batas. Kasama na [dito] ang Legal Resources Center,

Academy for ASEAN [Association of Southeast Asian Nations] Law
and Jurisprudence, ang International Studies Institute of the Philippines,
at ang Institute of Judicial Administration. Nagpatupad din siya ng
makabagong kurikulum na naglalayong gawing mas makabuluhan sa lipunan
ang propesyon ng abogasya. Bilang propesor ng batas sa UP sa loob ng halos
limang dekada, nagturo si Propesor Bacungan ng Labor Law at
Constitutional Law na naging paksa rin ng mga libro, monograph, at
artikulo na kanyang isinulat.
Nagturo din ng mga kurso sa karapatang pantao si Propesor Bacungan
at dumalo sa 1978 Vienna Conference on Human Rights Education
and Teaching. Naging miyembro din siya ng UNESCO [United Nations
Educational, Scientific, and Cultural Organization] Committee of
Experts on Human Rights na nag-draft ng Six-Year Plan for the
Development of the Teaching of Human Rights. Siya ay naging
komisyoner ng Commission on Elections at pangulo ng Philippine
Constitutional Association. Sa kasalukuyan ay pangulo si Propesor
Bacungan ng Center for Research and Special Studies na nag-review ng
Labor Code at naghain ng mga pagbabago sa iba pang mga labor at social
legislation noong nakaraang administrasyong [Gloria] Macapagal-Arroyo.
Pinangunahan din niya ang ilang mga proyekto ng center ukol sa repormang
pang-agraryo, isang paksang malapit sa puso ni Propesor Bacungan. Bilang
dating direktor ng UP Law Center, ginawa niyang mandatory subject ang
kurso ukol sa repormang pang-agraryo sa kolehiyo. Nagtuturo din [siya] ng mga
kurso ukol sa repormang pang-agraryo [sa] Unibersidad ng Sto. Tomas
simula pa noong 2005. Si Prof. Bacungan ay nagtapos ng bachelor of laws
sa Unibersidad ng Pilipinas at master of laws sa Yale University, kung
saan siya ay Fulbright-Smith Mundt scholar.
Si G. Raul Pangalangan ay propesor rin at nagtuturo ng constitutional
law at public international law sa Kolehiyo ng Batas ng UP. Bukod sa
pagiging dekano ng Kolehiyo ng Batas ng UP ng dalawang termino, siya ay
naging visiting professor sa Harvard Law School. Nakapag-lecture din si
Professor Pangalangan sa The Hague Academy of International Law,
Melbourne University, Hong Kong University, Irish Center for Human
Rights, Japan Society of International Law, at sa Thessaloniki Institute
of Public International Law . . . Noong 2003 nahirang na amicus counsel
si Propesor Pangalangan sa kasong impeachment ng dating punong
mahistrado na si Hilario Davide, habang noong 2006 ay naging lead
counsel naman siya sa harap ng Korte Suprema sa matagumpay na hamon
sa naging proklamasyon ng state of emergency ng dating pangulong Gloria
Macapagal-Arroyo. Kasalukuyang tagapaglathala [si Propesor Pangalangan]

ng Philippine Daily Inquirer kung saan siya ay dating nagsusulat ng lingguhang
kolum na pinamagatang “Passion for Reason.” Pangulo rin [siya] ng Bantay
Katarungan, isang nongovernmental organization na naglalayong itaguyod
ang rule of law sa bansa. Siya rin ay naging Asian Public Intellectual fellow
. . . para sa taong 2013. Nagtapos ng bachelor of laws sa UP at ng master
of laws at doctor of juridical science (SJD) sa Harvard Law School si
Professor Pangalangan. Nagwagi ng Leiden Prize for best paper in public
international law ang kaniyang master of law thesis, habang ang kaniyang
SJD thesis ay nanalo ng Saunder Prize for Best Thesis on Issues Relating
to International Peace. Natanggap niya ang kaniyang diploma mula sa The
Hague Academy of International Law noong 1987.
At panghuli—pero hindi naman komo babae—ay si Marites Dañguilan-
Vitug. Si [Marites] ay isang manunulat. Siya ay editor-at-large ng Rappler,
isang online news provider, at pangulo ng Journalism for Nation
Building Foundation. Dati rin siyang punong patnugot ng Newsbreak, isang
peryodiko na isinalarawan ng New York Times bilang magazine na “with
spunk and spice.” Ang pinakabagong libro niya ang Hour Before Dawn: The
Fall and Uncertain Rise of the Philippine Supreme Court (Vitug 2012), ay
sequel sa best-selling na Shadow of Doubt: Probing the Supreme Court
(Vitug 2010), ang unang aklat na humawi sa tabing na sumasaklob sa
Kataastaasang Hukuman ng Pilipinas. Ang Hour before Dawn naman ay
nagwagi ng National Book Award for nonfiction noong 2012. Ang e-
book version naman ng Shadow of Doubt nasa top ten best selling books
ng Amazon sa ilalim ng kategoryang “courts.” Kinilala rin ito ng Manila
Rotary Club bilang “Outstanding Non-fiction Book” noong 2010.
Tunay ngang ang Shadow of Doubt ay maituturing na tagumpay sa mata ng
mga kritiko at nakapag-ambag din sa nagbabagong political landscape sa
bansa. May-akda rin si Ms. Vitug [ng] mga sumusunod na libro: Our Rights,
Our Victories: Landmark Cases in the Supreme Court, kasama si Criselda
Yabes (Vitug and Yabes 2011); Power from the Forest: The Politics of
Logging (Vitug 1993); Jalan-jalan: A Journey through EAGA, kasama si
Criselda Yabes (Vitug and Yabes 1998); and Under the Crescent Moon:
Rebellion in Mindanao, kasama si Glenda M. Gloria (Vitug and Gloria
2000). Ang Power from the Forest ay nagwagi ng National Book Award for
Journalism noong 1994 at isinalarawan ng International Herald Tribune
bilang isang “well-written and well-produced book that deserves a wider
audience.” Ang Jalan- jalan naman ay hinirang ng Asiaweek noong 1999
bilang isa sa mga nangungunang libro tungkol sa Asya. Ang Under the Crescent
Moon ay nagwagi ng National Book Award noong 2001. Hall of Famer
na siya sa National Book Awards sa marami niyang napanalunang mga

premyo. Nagsusulat din si Ms. Vitug sa mga peryodiko kasama na ang
International Herald Tribune, Christian Science Monitor, Newsday, at Asahi
Shimbun, at sa mga libro at journal kasama na ang The Politics of
Environment in Southeast Asia at The Journal of Environment and Development
na inilathala ng University of California in San Diego. Pinarangalan si
Ms. Vitug ng Courage in Journalism Award ng International Women’s
Media Foundation para sa kaniyang pag-uulat sa kalagayan ng mga gubat
ng Palawan; ng Ozanam Award ng Ateneo De Manila University; ng
Outstanding Alumni Award ng University of the Philippines; ng Jaime
V. Ongpin Award for Investigative Journalism; at ng Ten Outstanding
Young Women Award sa larangan ng pamamahayag. Nagtapos ng BA
[bachelor of arts] in broadcast communication sa UP si Ms. Vitug. Dati
rin siyang Nieman Fellow sa Harvard University at nag-aral ng International
Relations sa London School of Economics and Political Science.
Ang una nating tatawagin ayon sa ating programa ay si Prop. Froilan
Bacungan.
FROILAN BACUNGAN (DATING DEKANO, KOLEHIYO NG BATAS, UP

DILIMAN): Ang unang tanong ng organizers nito is: “How did Marcos utilize
the law to keep himself and his political allies in power?”
Ito naman ang sagot ko: Whatever happened during martial law
regime under President Ferdinand E. Marcos, he was just fully
implementing his oath of office as worded in the 1935 Constitution,
Article VII, Section 7. Ano naman itong oath of office ng presidente? Ito
iyong sinabi ni President Marcos:
I do solemnly swear that I will faithfully and conscientiously
fulfill my duties as President of the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every
man, and consecrate myself to the service of the Nation. So
help me God.
That [was] what President Marcos did during the time that he was
president.
“Why is the crafting of the legal structure that supported, and in
fact legitimized, the Marcos dictatorship rarely discussed in public?”
Ito naman ang sagot ko: Because the discussion about the Marcos
regime in public has been only to the extent that you justify your
position as pro-Marcos and anti-Marcos. It is not the way the Third
World Studies Center wants the debate to be, namely, objective.
“The usual reason given by groups and individuals who have been
part of the Marcos regime is that they served the dictatorship believing
that they can temper the harsh blows of Marcos’s iron fist.”
Ito naman ang sagot ko: I was never part of the Marcos regime.
Nagtuturo lang ako sa law school and giving bar reviews about the same
time. I was executive secretary of the Philippine Chamber of Commerce
and Industries at the time that martial law was proclaimed. I succeeded
Crisolito Pascual as director of the UP Law Center, and later on, Irene
Cortez as dean of the UP College of Law. I was never a part of the
Marcos regime (basahin ang appendix 4.1, 467–68).
“Did the people in the judiciary and the legal profession then share
the same view?”
Ganito . . . In a sense, the common view of persons like Crisolito
Pascual and Irene Cortez was that, from the time President Marcos
became president until he was ousted as such by the People Power
[Revolution], he was president under the 1935 Constitution. So try
to remember, that everything they [would] say about Marcos, he was
doing it under the 1935 Constitution.
“What should the Supreme Court have done to stop the imposition
of martial law?”
Ito naman ang sagot ko: The proper question is, “What kind of a
constitution should be implemented?” Una, the Supreme Court only
implements the present constitution, not any other constitution. If it
[was] the 1935 Constitution, then, whoever [would] be in the
Supreme Court could not have stopped President Marcos from being
a dictator. They [would] promulgate the decision that could be
downloaded in the internet that dealt with Aquino v. Enrile [General
Register (GR) No. L-35546, 17 September 1974]. I wish to emphasize
that the Supreme Court will only interpret what is [in] the constitution
and it does not do anything else, because if they do something else then
it is a fake Supreme Court.
“Within the context of the judiciary’s nature and contemporary
political culture, are there any chances for another Marcos to rise and
tailor fit the constitution to his needs and make lackeys out of the
Supreme Court justices?”
Ito naman ang sagot ko: There will never be a Marcos again, but there
may be because there is a Bongbong Marcos who, as senator of the
republic, is implementing the following provisions, among others, of
the Declaration of the Principles—. Itong Saligang Batas ngayong 1987,
we owe it to that woman, [Cecilia Muñoz-] Palma who was [chair of the
1986 Constitutional Commission]:
[Section 3:] Civilian authority is, at all times, supreme over the
military. The Armed Forces of the Philippines is the protector
of the people and the State. Its goal is to secure the sovereignty
of the State and the integrity of the national territory.
Ito naman ang Section 4:

The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend
the State and, in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to render personal,
military or civil service.
Section 5:
The maintenance of peace and order, the protection of life,
liberty, and property, and promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.
Another way of saying it will be, let us ensure that we will not
change the 1987 Constitution. Section 18, Article VII which states,
and I will read it really slowly:
The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent and suppress
lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part
thereof under martial law.
Then you will note that this is going to be done:
Within forty-eight hours from the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to
the Congress. The Congress, voting jointly, by a vote of at least
a majority of all its Members in regular session or special

session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President.
Iyon ang hindi nangyari noong time ni Marcos because there was no
such command in the constitution. But you will find Bongbong
following [that].
Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a
period to be determined by Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours

following such proclamation or suspension, convene in
accordance with its rules without any need of a call.
That is why the Congress should convene without anybody calling
for it. So, if anyone proclaims martial law, Congress will convene itself
to see to it that [it serves as] a countervailing force. And what will the
Supreme Court do?
The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege
of the writ or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing.
And what is the state of martial law?
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to

persons judicially charged for rebellion or offenses inherent in
or directly connected with the invasion.
During the suspension of the privilege of the writ, any person

thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.
You could not detain a person for more than three days.
Let us now, of course, go back to the 1935 Constitution which
states, “The President shall be commander-in-chief” and then these
[slide shows additional text of the provision]. Tingnan ninyo na lang ang
mga rason. All of you should read the proclamation of President
Marcos. He did not justify this with all [these]. In other words, he said
that nobody ever questioned the [facts,] it was questioned at the
Supreme Court.
Whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion,
insurrection, or rebellion. In case of invasion, insurrection, or
rebellion, or imminent danger thereof, when the public safety
requires it, he may suspend the privilege of the writ of habeas
corpus, or place the Philippines or any part thereof under
martial law.
Who were the members of the Supreme Court at that time? You
know when we are trying to think of what happened during the martial
law regime, we should look at everything. Who was the president who
caused it? It was President Ferdinand E. Marcos, the valedictorian of
his class, the best and brilliant mind in the legal profession at the time.
And who were the justices? Mabait itong si [Querube] Makalintal—
I still remember that we were [at the Development Academy of the
Philippines (DAP) for a seminar]. We were assigned rooms. The one in
charge of DAP that time was Luz Villamor, [who was with] SSS [Social
Security System]. Sabi niya, “Froilan, room number one ka.” But room
number one was assigned to Querube Makalintal. Sabi [ni Makalintal],
“I went to room number one, there was a Bacungan there!” . . . But
Querube Makalintal never complained. He did not file any case against
me.
I remember Calixto Zaldivar, father ni Lorna Zaldivar [who] was a
good friend of mine. We were all at UP. Si Fred Ruiz Castro, medyo
kaibigan din natin. Ikuwento ko ang ginawa niya. Sabi niya, “Froilan, ayaw
ko pang mag-retire at seventy. Puwede bang palitan natin ang batas so that
after seventy, I can continue being an associate justice of the Supreme
Court.” [Sabi niya,] “Ganito, tawagin ko si Ferdinand, classmate ko iyan.
Palitan natin ang Saligang Batas. We will change it so that we will not
[need to retire] at seventy.” Except that when they were [flying back
from] India, he died before he was seventy. So, sayang iyong pagpalit
namin ng Saligang Batas.
Of course si Enrique Fernando. Naging professor ko ito . . . Ang gusto
niya kausapin lang ay ang mga anak ng justices. So hindi ako kasali because
ang tatay ko is a school teacher.
Ito kalaban ng lahat, si [Claudio] Teehankee [Sr.], of course. Si
[Antonio] Barredo was a politician (basahin ang appendices 4.2, 469–
72, at 4.3, 473–74). Si Felix Makasiar became dean of the Lyceum. Si
Felix Antonio ay kasama ko sa PHILCONSA [Philippine Constitution
Association]. Si Salvador Esguerra, sa Malacañang. They were all
friends. But these guys, you know what is wrong with them? That is
precisely the case.
Si Estanislao Fernandez, Cecilia Munoz-Palma, ito professor ko si
Ramon Aquino who was so faithful to President Marcos, he was there
at the time when he thought Marcos was being brought to Paoay—
Hawaii pala.
Ito naman, classmate ko, si Estelito Mendoza, isa sa mga
pinakamagagaling na abogado and because of that mataas ang ibinabayad
na taxes niya. But he is very very good; he is the highest taxpayer of our
country. Sana lang binabayaran niya.
At sinasabi ni Raul [Pangalangan] kanina sa akin, naging justice din,
si Hugo Gutierrez. Iyong mga anak ko ay Gutierrez scholars because they
were his assistants at the House and Senate Electoral Tribunal when
they were in law school. And then of course the other persons.
Wala na akong sasabihin.
Uulitin ko lang, we should never go back to the 1935 Constitution
and the members of the Supreme Court should not be the ones to
[challenge] the profound ideas of the constitutional law the way
Thomas Jefferson wanted it . . . Anyway, that is what we should do and
that is what the young people here should do.
CAMAGAY: Salamat Professor Bacungan. So, mayroon siyang iniwan na

payo: huwag daw tayo babalik sa 1935 Constitution. So ngayon dumako
na tayo kay Propesor Pangalangan.
RAUL PANGALANGAN (TAGAPAGLATHALA NG PHILIPPINE DAILY INQUIRER

AT DATING DEKANO, KOLEHIYO NG BATAS, UP DILIMAN ): Thank you very
much . . . Dean Bacungan was my dean when I was a student at the law
school. I must say on record, dean, that I was the president of the law
student government and Dean Bacungan was the most supportive
dean. I remember, dean—I am sure you have had many glorious
moments, but the one scene I remember from law school was you
chatting on the sidewalk with the drivers and the janitors. You were
sitting with them on the bangketa and the students actually verbalized
their appreciation, that they have a dean who can sit down with the
lowest ranking staff . . . . Thank you. And also Marites [Dañguilan-
Vitug], I am glad to be on the same panel. I must say that Marites’s work
as an investigative journalist has been featured by the Philippine Daily
Inquirer in its banner headline. I recall that on 1 January 2012, we
started the year with your work.
Okay, I borrowed my title from the book of Roberto Unger, a
professor from the Harvard Law School. And in this context it is
actually anointing dictatorial power with constitutional piety because
that was the role that the law played for legitimating the dictatorship.
And this is basically a summary of what I propose to say in the next
twenty minutes: that usually the legal framework for martial law is
traced to the September 23—technically September 21—declaration of
the martial law Proclamation 1081, when in fact the real foundation
was laid one year before with the suspension of the writ of habeas
corpus and I will go into the case that upheld that decision.
My larger point actually is rather theoretical and historical, not
really legal. My concern is that the best challenge by the liberal lawyers,
by liberal legalism as an ideology against Marcos, was that Marcos was
telling a lie. Either he was exaggerating the communist threat [or] he
was fabricating uprisings here and there; there was no basis for this
declaration. And as I will demonstrate, it actually failed to delegitimize
the rule of Marcos and that [was] why he persisted from 1973 all the
way to his downfall at EDSA 1. And the only true channel really was
Left theory, especially at that time emanating from this building [Palma
Hall].
But even Left theory had to disguise itself after the [Benigno]
“Ninoy” [Aquino] assassination [in 1983] as essentially bourgeois
liberalism. My friends who were Maoist one moment suddenly
morphed into Jeffersonian liberals. I mean if you do not look behind
appearances, but they had to do that to win over the middle forces.
That was where the human rights lawyers came in. That is why I had
wished that Atty. Rene Saguisag was here. The human rights lawyers
formed the core, eventually, of the leadership of the coalition against
Marcos.
And this is also the irony. It was, in fact, Marcos who looked for
an alternative theory between liberalism, imported from the West, and
the left-wing orthodoxy. Marcos wrote three books1 to justify that—I
understand ghost written by members of the [UP] Social Sciences and
Philosophy faculty, I will ask you later Malou [Propesor Camagay] for
some names. And that well, of course, the ideological experiment
failed really with the downfall of Marcos.
My examples—since I mentioned that Dean Bacungan was my
professor when he was dean, and I have many students here, my
examples will really sound dated to you. It shows my age.
This is from my favorite movie, The Godfather. So, I guess the kids
here have not seen The Godfather, have you, right? Or maybe you have
encountered it as a video game. So, this is one line from The Godfather:
“A lawyer with his briefcase can steal more than a hundred men with
guns.” Actually, that is a part of a dialogue and the next one shows you
the response to that. It was uttered by the lawyer of the godfather, the
head of the mafia, Vito Corleone. His consigliere, his lawyer, his adviser
was an Irish lawyer who said the line. And the response was given by
his son, the hot-tempered successor to the Corleone family who said:
“Hey kid, if you have a hundred guys with guns on your side, whatever
you do, do not trade them in for some fucking lawyers!”
So, let me have a survey here: Who among you agree with the Irish
lawyer who says that the most potent ally is the lawyer with the
briefcase? Anyone here? No takers? I mean that is the ideology of the
entire Malcolm Hall. So, who is on the side of Sonny Corleone? Who
is on the side of the men with guns? Well, if you side with the men with
guns, then you actually affirm the classic wisdom of Niccolo Machiavelli:
“It is better to be feared than loved.” And I am sure you take this in—
_________________
1. Sa bandang dulo ng forum, sasagutin ni Propesor Camagay ang isyung ito. Ayon sa kanya,
ang tinutukoy dito ay ang librong Tadhana: The History of the Filipino People. Isinulat ng
mga historyador—karamihan sa kanila galing sa Departamento ng Kasaysayan ng UP—ang
librong ito sa ngalan ni Marcos (tingnan ang tala 9 sa Forum 3 para sa mga puwedeng
masangguning batis tungkol sa Tadhana). Sa palagay ng mga patnugot ng Kasarinlan, hindi
ito ang tinutukoy ni Pangalangan kundi ang alin man sa mga ito: Today’s Revolution:
Democracy (Marcos 1971), Notes on the New Society in the Philippines (Marcos 1973),
Notes on the New Society of the Philippines II: The Rebellion of the Poor (Marcos 1976),
The Democratic Revolution in the Philippines (na kumbinasyon lamang ng unang dalawang
nabanggit na titulo) (Marcos 1974) at Five Years of the New Society (Marcos 1978).
Gayunpaman, ni sa bulung-bulungan hindi nasabing ipinasulat ni Marcos ang mga librong
ito sa mga taga-UP. Ang madalas mabanggit na tagasulat ni Marcos ng mga librong ito ay
ang isa sa kanyang mga tagapagsalita, si Adrian Cristobal (tingnan ang tala 10 sa
introduksyon).
I believe this subject is now called Soc Sci 2 [Social Sciences 2], right?
It was called Social and Political Thought during my time. [It was] the
first subject I taught when I was a Political Science instructor. But
notice the bottom code: never attempt to win by force if it can be won
by deception. And that is where the lawyers come in.
My next slide, this is actually a summary. I do not expect you to
note the details. This is just to give you a survey. Marcos, as Dean
Bacungan emphasizes, was properly elected as president in 1965,
served one term as president—that [was] a four-year term—and the first
president to be reelected under the 1935 Constitution for a second
term which was about to end in 1973. And then he started getting ideas
and fortunately for him—and I say this deliberately—by that time, the
student movement was reaching a crescendo—the First Quarter Storm,
the Diliman Commune, the historic bombing at Plaza Miranda of
August 1971—and the suspension of the writ of habeas corpus was
validated by the Supreme Court in a case I will quote for the non-law
people. Lansang v. Garcia [G.R. No. L-33964, 11 December 1971] is
a case I keep on talking about.
In September 1972, Marcos declared martial law. He ruled under
martial law powers from September 1972 to January 1973. So that is
the whole month of October, November, December—so, roughly three
and a half months—and then he foisted upon us this totally bogus
ratification of the 1973 Constitution. And then again, a case that I will
keep on talking about, Javellana v. Executive Secretary, G.R. No. L-
36142, 31 March 1973]. Again just to fast track it, by 1986 we had a
snap election and [Corazon] “Cory” [Aquino] [became] president and
by 1987 we have the current 1987 Constitution.
My last slide is like a chart. The power of Marcos morphed over that
period. So, from the standpoint of a person being tortured, from the
standpoint of the student whose fingernails are being pulled with
pliers, from the standpoint of Hilao v. Marcos [No. 95-15779, argued
and submitted 18 June 1996; decided 17 December 1996]—a student
was captured, tortured, detained at V. Luna [the Armed Forces of the
Philippines Medical Center] and then the autopsy report says she
voluntarily drank a bottle of acid. That was the official report. From
the standpoint of the victims, the power never changed. You get hit on
the head, you get hit on the head. Your eyeballs get plucked out, your
eyeballs get plucked out. But from the standpoint of the lawyers, it
mattered, how you legally characterize the power.
As Dean Bacungan said, from 1965 to 1972, [Marcos] was the duly
elected president who took his oath under the 1935 Constitution.
Between September 1972 to January 1973, he governed purely under
the very clause—I am so glad Dean Bacungan showed you, and to give
you a flavor of the language—the “commander-in-chief” clause. So, it
was pure military power in those three and a half months. But notice
by January 1973, the entire power changed because by then, by legal
fiction, we have a new constitution. And Marcos then supposedly
consulted the people who said, yes, we like the new constitution but
please do not put the parliamentary system in place and please exercise
the powers of the president under the 1935 Constitution, and the
prime minister and the president under the 1973 Constitution. And
so he ruled under that power until 1981.
In 1981, we had paper lifting of martial law. And he was actually
elected to a fresh term of office, fully constitutional, if you just go by
the paper trail. And the six-year term would have ended in 1987, except
that he was under so much pressure from the popular movement. So
notice, if he called for special elections in 1986, it was not because of
any constitutional duty, it was purely upon political pressure. It was
pressure from below, from all the protests and rallies. So, he called for
the snap election and it was challenged before the Supreme Court as
unconstitutional. As in fact it was. Yet the Supreme Court bent over
backwards, again showing that the court is a creature of politics and we
ourselves as Filipinos as the sovereign Filipino nation, nobody
complained because we wanted the elections to proceed. And then
Cory [Aquino] took her oath—she could not have taken her oath under
the existing constitution then, so she had to come up with a Freedom
Constitution, something written by Adolfo Azcuna. He was assigned.
You know, in the frenzy of the revolution, someone had to draft the
constitution. “You! Sit down and write it!” So, he wrote it, the
Freedom Constitution under which we were governed until 1987.
And then we have the 1987 Constitution.
I begin with what I consider the real foundation of martial law
powers: the illegal arrest of 1971, in Teodosio Lansang v. Garcia. It was
a series of many cases. One of those arrested is actually present [here],
Gary Olivar. [Humarap si Pangalangan kay Gary Olivar.] Gary, you were
then second year college? And you were how old?
GARY OLIVAR: Nineteen.

PANGALANGAN: You were nineteen years old. Gary was arrested

together with Teodosio Lansang. Gary was charged under the Anti-
Subversion Law. They were charged as communists, as subversives.
And notice the liberal defense is that, “Hey, that is not true, they are
not communists.” Well then, Gary you can tell me whether that is true
or not. I have got to tell you, it does not take a detective to know.
Teodosio Lansang was teaching here in the CAS [College of Arts and
Sciences] faculty at that time. He was teaching foreign languages. What
language was he teaching that time? Russian! [For] God’s sake!
I will not go through all the cases but Garcia-Padilla v. Ponce Enrile
[G.R. No. L-61388, 20 April 1983] is very close to my heart. And this
is a whole series of illegal arrest cases. Garcia-Padilla was a faculty
member of [UP Manila]—that [was] Sabino “Abe” Garcia-Padilla, my
brod in Alpha Sigma. Abe was captured in Nueva Vizcaya when the
military raided an NPA [New People’s Army] safe house. And instead
of just arresting a doctor—it was a clinic of a doctor, Aurora Parong—
they camped out inside the house and each time someone rang the
doorbell, they welcomed the person and arrested him. One of them
was Abe. Abe passed away less than one year ago and I just wanted to
mention the historic case of Garcia-Padilla.
As I will demonstrate later, Lansang v. Garcia was seen as a blow
against Marcos. That was the favored interpretation of my era. My
professor then in the College of Law in this subject was Miriam
Defensor-Santiago. My other professor was Haydee Yorac. So both
terror professors. Guess who was more terrifying, Haydee or Miriam?
Yes, absolutely. Haydee was more terrifying than Miriam. Miriam was
very motherly. She was scary but motherly. So, you can imagine, these
two professors were anti-Marcos and they liked Lansang v. Garcia. So
by their narrative, by the canonical account to my generation of law
students, Lansang was a good decision. Why? Because before Lansang,
all commander-in-chief decisions were beyond judicial review. I mean,
how can judges pass over the decision of the commander-in-chief on
whether or not there is not enough trouble, whether or not there are
enough soldiers, whether or not the communists have grown to a
threatening proportion. It was a pure judgment call by the president.
That was the ruling doctrine then.
So, for Lansang v. Garcia to say that it will exercise judicial review
was, for the likes of Haydee and Miriam, the assertion of the primacy
of civilian authority over the military, the primacy of the courts over
the commander-in-chief powers. And it was very well crafted. The goal
of the court is merely to check the executive, not to supplant it. It was
merely to ascertain whether or not he has gone beyond the constitutional
limits, the limits read to you by Dean Bacungan earlier, and not to
exercise the power in his behalf, not to second guess the discretion of
the chief executive. Everyone was singing hallelujahs to Lansang v.
Garcia. I will go back to this case later.
Next one, Javellana v. Executive Secretary. Even the justices of the
Supreme Court said that the 1973 Constitution had not been ratified
properly. You needed a plebiscite. You need to count the votes. The
votes had to be secret. All that Marcos had—we were already under
martial law—was a so-called People’s Assembly with a mere show of
hands and asked the question, “Do you approve of the new constitution?”
Of course, they all said yes. “Do you still want a plebiscite?” They all
said, “No, we do not want [one] anymore.” And Marcos said, “Hey, we
have a valid constitution.” It was challenged before the Court, i.e.,
Javellana v. Executive Secretary. And the court said, “Hey, it is perfectly
okay.” And one justice said, “Even in my own neighborhood we did
not have that plebiscite. Even in my own neighborhood, I, a justice,
never took part in the ratification of the [constitution].” Despite that,
the 1973 Constitution took effect. And notice the logic, this is logic
which is squarely within the framework of liberal theory. They said: If
the people had staged a revolution and established a new government
by arms, would you say this is unconstitutional? And the court says,
“Well, if the people staged a revolution, but peacefully, without force,
why should we disadvantage them? We should be equally nice to those
who changed the constitution peacefully, rather than by violence.”
There are now two strings of reasoning: Lansang, which was highly
praised by the democratic forces and Javellana, which was widely
criticized by the democrats because it disregarded the test of strict
legality and replaced strict legality with political reality after the fact,
post hoc. Notice that until today, the orthodox is that Lansang is good
news because, again Dean Bacungan read to you the 1987 Constitution,
we codified the language of Lansang into the commander-in-chief clause
of the 1987 Constitution.
This [was] what that court said in Lansang. Notice that they agonize
over the decision on 5 October [1971]: “[The Supreme Court] . . .
tentatively arrived at a consensus that it may inquire in order to satisfy
itself of the existence of the factual bases for the” suspension of the writ
of habeas corpus . . . “Upon further deliberation, the members of the
Court are now unanimous in the conviction that it has the authority
to inquire into the existence of said factual bases . . .” So, notice that
there was a change in the temperament of the court, and for me that
was a mystery. Why the change?
Until, later on, I read this book, the diaries of Marcos.2 When
Marcos fled, apparently, he left his diaries in Malacañang and someone
published the diaries in a book. It turns out, Marcos was monitoring
the decision of the court in Lansang v. Garcia. So Marites, what is
happening today about the lobbying within the court is old hat.
Marcos had a mole inside the Supreme Court, and Dean Bacungan, I
am just reading from the [Marcos] diaries, it was Fred Ruiz Castro. It
says: “The President had a spy. One of the justices, Fred Ruiz Castro,
a fellow native of Laoag, a senior appointee. Castro came to dine with
the President on September 16. It was an extraordinary session far
outside the norms of judicial decorum and wholly disdainful of any
notions of separation of powers”—something that Marites has developed
in her book. I hope more examples, Marites, and more recent episodes.
“Castro told Marcos, ‘I think we have enough votes.’ But [Castro] said,
‘If you want more votes, lift the suspension of the writ in some regions
of the country, a partial lifting, so that we can get a unanimous vote.’”
The prospect of a unanimous vote had enormous appeal to the
president. So what he did was [to] travel to Cebu on a Saturday,
restored the writ in Cebu, it appeared on the Sunday papers, just in
time for the en banc session on Monday. So, you know the timing was
impeccable. And this is what Marcos said after he was told that the
court was unanimous: “It was euphoric. A red letter day. The biggest
legal victory in my administration,” he said. “It electrified everyone.”
The weird thing was that the matter at that time was already
academic because he kept on having a partial restoration of the writ just
to have a unanimous vote. And in fact the diary said that: “People do
not know why I am ecstatic about this case. Because the Supreme
Court already acknowledged the existence of the rebellion. This means
I can place the Philippines under Martial Law.”
My first problem: If Lansang was a high moment for the anti-
Marcos people, then why was Marcos so happy? Why the gap between
the legal imagination which says that Lansang was good for liberty, and
the realist mind which says that Lansang was good for martial law? And
the answer actually came from Perfecto Fernandez, my other professor.
_________________
2. Maaaring ang tinutukoy dito ni Pangalangan ay ang Delusions of a Dictator: The Mind of
Marcos as Revealed in His Secret Diaries ni William C. Rempel (1993).
Fernandez said the court purported to review the suspension of the

writ. It did not wash its hands. It says, “Look, we will review [it].” But
it adopted a very low threshold for validity, namely whether the
decision was totally bereft of any factual basis which will make it an
arbitrary decision. In other words, in order to validate the decision for
the court, it will need evidence. Where will you get an evidence for a
rebellion? You get it from the commander-in-chief. In other words, you
are asking the guy to supply evidence to support his own decision and
obviously the guy will always have the factual grounds for his decision.
So, notice my first problem was that Lansang, far from being a score for
democracy, was actually part of a grave digger for democracy (basahin
ang appendix 4.4, 475–78).
I will proceed to my second problem. The likes of Yorac and
Defensor-Santiago—I use them, Dean Bacungan, as examples only
because they were my actual professors who expressed these opinions—
criticized Javellana for abandoning the test of strict legality. Well guys,
when Cory Aquino took over in 1986, it was also challenged before the
court. And what was the reasoning of the court to validate Cory? It was
exactly the reasoning in Javellana. Cory’s rise to power was not due to
the constitutional processes. In fact, it was achieved in violation of the
1973 Constitution because it was Marcos who officially won the snap
elections. But the people have accepted Cory. And Cory, being in
effective control of the entire country, the legitimacy of her government
was not justiciable but belongs to the realm of politics where only the
people are judge. So, notice if it was so bad and so stupid and so foolish
when it was done by Marcos, why should it be so nice when the same
thing was done by Cory? In other words, liberal constitutionalism
could not provide a solid, intellectually respectable answer to Javellana
v. Executive Secretary.
The weird thing was, at EDSA 2, the Supreme Court was expected
to do the same thing they would have done in Javellana v. Executive
Secretary, except that suddenly, the court suddenly applied—well,
pretended to apply—the test of legality (Estrada v. Desierto). The court
said that “Well, I think we can say that he [President Joseph Ejercito
“Erap” Estrada] actually resigned.” The weird thing was that they were
relying upon [entries in] the Angara diary, which were not even
presented before the court, which were published by the [Philippine
Daily] Inquirer,3 and on that basis validated the oath-taking of Gloria
_________________
3. Nalathala sa Philippine Daily Inquirer 4–6 Pebrero 2001 ang mga tala mula sa diary ni
Edgardo Angara, na noon ay executive secretary ni Pangulong Joseph Ejercito
Estrada.
[Macapagal-]Arroyo and of course, sealed the fate of our country for the
next ten years.
So, my second problem is: If the liberals were correct and Javellana’s
abandonment of strict legality was a low moment, was bad news, then
why would the Cory [Aquino] Supreme Court, rely on the same bad
theory to validate EDSA 1, something which is universally applauded
in the Philippines today? And conversely, if Lansang’s insistence on
judicial supremacy was a high moment, then why would the court
apply strict legality to validate EDSA 2?
But I will now proceed to my third point—and this is why I was
hoping that Rene Saguisag would be here—[which] is an indictment of
the legal profession. Problem number three: the worst they can say was
that Marcos was lying. And indeed he was lying on one point: the fake
ambush of [Juan Ponce] Enrile. Well, for the youngsters here, the
immediate cause for the proclamation of martial law was that Enrile
was coming from playing golf at Wack Wack and then he was
ambushed on his way out. And then, when Marcos was about to fall
in 1986, Enrile said, “Oh, we staged that thing. It was all fake. Do not
believe it.” Well, he had a biography recently and apparently he
changed his mind (Enrile 2012).
So, the Inquirer took him up on the fake ambush.4 But notice, apart
from the fake ambush, I think Marcos was telling the truth. Was there
a rising left-wing presence in the country? We are talking about ground
zero for the growth of the Left in the country. So, [showing photos to
the audience] we have the First Quarter Storm next; this is the
graduation of 1970—for the law students here, the person carrying
“people’s war vs. Martial Law” placard, that is Prof. Raffy Morales, a
cum laude graduate of political science, class valedictorian of the UP
College of Law, managing partner of the Sycip law office [SyCip Salazar
Hernandez & Gatmaitan], the largest law office in the country today.
I asked him why he carried that, because the other slogans were a bit
milder, he said, “I did not know, they just passed me a placard and I
carried it. And when I saw the pictures it turned out that that was what
I was carrying.” [Still showing photos] I do not know if you guys are
aware that there was a Diliman Commune once upon a time. [Pointing
to the picture being shown] That is the College of Mass
Communication. So you will notice that some trees have since grown
_________________
4. Inquirer Research, “True or False: Was 1972 Enrile Ambush Faked?” Philippine
Daily Inquirer, 8 October 2012, http://newsinfo.inquirer.net/284836/true-or-
false-was-1972-enrile-ambush-faked.
in that part of the campus. The next slide, that is the first floor of AS
[then the College of Arts and Sciences], Palma Hall, as I am sure you
recognize and those are the AS steps. Somewhere in the crowd [there
was] President SP [Salvador P.] Lopez, the guy in the suit. And of course
the next one, Plaza Miranda. Well this is . . . Plaza Miranda, someone
threw a grenade at the miting de avance of the Liberal Party, almost
killing Sen. [Jovito] Salonga. Marcos blamed the communists.
Liberal orthodoxy says that Marcos was telling a lie. Well, I have
come across many accounts from former communists saying that
Marcos was telling the truth.5 And that the guy who threw the grenade
was actually a very bright lumpen element, who was specifically chosen
for the task by the highest officers of the Party [Communist Party of the
Philippines].
In other words, for me, liberal theory fails to come to grips with
the fact of a left-wing revolution. And the next slide is the announcement
of the declaration of martial law. I will go back to this point later. The
slogan of Marcos was, “I declared martial law to save the Republic and
to reform society.” The “saving the Republic” part is pure commander-
in-chief; “reform society” is not part of commander-in-chief powers,
which brings us then to the real conundrum.
You know, if liberalism really was so delegitimized by the time
Marcos declared martial law, why its enduring allure for the Filipinos?
Today the rhetoric of the rule of law is a very powerful rhetoric. We
continue to romanticize judicial review. We celebrate it as sober and
rational as against the political power. You know the raw power of the
Marcos regime. The people are stupid, uneducated and, and impulsive.
And for me, especially as a law professor, it positions law as a secular
religion and the lawyers as a secular priesthood. But I think there is a
gap. And this is a description from a philosopher [Roberto Mangabeira
Unger]. He is describing Brazil, but the first time I read this I felt he was
describing my country:
The most striking fact about the social imagination of the elites
was a particular incongruity between the spiritual ideals they
had accepted as properly governing the life of the society and
_________________
5. Tatlong personalidad ang sumusuporta sa puntong ito ni Pangalangan: sina retiradong
heneral Victor Corpus (1989), si Ruben Guevarra (1998), at dating senador Jovito
Salonga (2001). Mariin at paulit-ulit na itinatanggi ni Jose Maria Sison ang paratang na
ito.
the vision of social life they in fact lived out in their relations
to one another and to their subordinates. (Unger 2004, 73)
So, at the level of professed beliefs, we are liberals in the Philippines in
terms of our unofficial ideology.
But their actual social life was another story . . . . There they
treated each other as patrons and clients and traded in favors
and dependencies. (Unger 2004, 73)
This is fully demonstrated, Marites, in your book, that the official
decisions of the court will be rendered as if they are the product of
proper legal analysis and yet if you look at the maneuverings behind
that, it is all horse trading under the table. The formation of alliances
are here and there. And here for me, it is almost a description of us as
Filipinos.
There they showed their almost complete disbelief in all
institutions not founded on blood, property, or power. There
they acted as if a moment of personal presence were worth a
thousand promises and as if any exercise of power could be
tolerated as long as the veil of sentiment covered it. (Unger
2004, 73)
And my last slide: the crisis then for liberalism found a refuge in
law, in fact, specifically human rights discourse where the left felt it
could engage the traditional politicians on a safe ground and talk
among themselves as if they shared a common point of reference—the
language of the law, the language of the constitution, and the language
of the Bill of Rights. What happens, however, and especially for my
discipline, is that it positions the “law as reason encoded in the doings
and dreams of power” (Unger 1996, 23). In other words, it celebrates
the law as if it were the embodiment of reason, when in fact it was the
embodiment of compromises, and dirty compromises at a deeper level,
and which lead this author to say that—and I do not know if Dean
Bacungan will agree with me—law professors are “like priests who have
lost their faith but kept their jobs.”
MARITES DAÑGUILAN-VITUG (EDITOR-AT-LARGE, RAPPLER): Good

afternoon sa inyong lahat. Since I am the only non-lawyer in the panel,
I decided to focus on the memory part. Keeping the memory of the
martial law—I am also a journalist, so that is one of my main interests.

Why is there a scarce popular documentation of the legal sleight of
hand that was behind martial law? My co-panelists have given us
authoritative accounts of the legal thinking that went into martial law.
As a journalist, I will look [at] why a gap exists between history and the
popular consciousness.
Advertisement for ourselves: When my colleague, Criselda Yabes—
she is here—and I were working on this book, Our Rights, Our Victories
(Vitug and Yabes 2011), we tried to popularize landmark cases in the
Supreme Court and one of them is Javellana v. Executive Secretary. We
found out that while we do have access—as Dean Bacungan said, you
can download decisions and opinions, we do have access to these, and
also on the habeas corpus cases—what we do not have is a popular
version for non-lawyers, for the general public, on the characters who
had first-hand experiences, who participated in the shaping of martial
law: their insights, their diaries, their thoughts, and regrets, if any.
For example, we encountered dead ends—and I think this speaks
sadly of the state of our archives. The Supreme Court has no copy of
the transcript of records of the oral arguments on the historic Javellana
v. Executive Secretary case. Our national library does not have it either.
Neither does the UP College of Law nor the libraries of Senator Jovito
Salonga, the late Senator Jose Diokno, and the late Chief Justice
Roberto Concepcion, and we met a dead end.
So, why did we want to read this? Because oral arguments are quite
important. I encourage the students to watch and listen to the oral
arguments of the Supreme Court. It can be boring but you will get to
know how the justices think. So lawyers face the Supreme Court and
make their case for or against an issue. I find oral arguments very
instructive because they give us an insight on how the justices think.
We must remember that they are supposed to be like monks: they are
not supposed to be seen, they are just supposed to speak through their
decisions. So, when you listen to the oral arguments, you get an idea
of how they think based on the questions they ask. If we have these
transcripts, we would know how Estelito Mendoza, then the solicitor
general, argued for martial law. And how Lorenzo Tañada and Jovito
Salonga argued against it with color, with the flavor of their language.
We would know the kinds of questions the justices asked, and how the
counsels on both sides answered. We would have a sense of historic
deliberations, a feel for the event, and a flavor of the conversation that
was taking place then. We would have seen some color in what was
otherwise perhaps a very grim discussion.
So, personalities who had first-hand experiences of this defining

moment in our history sadly declined to talk to us. For example,
Senator Joker Arroyo, who was with Tañada, Salonga, and Diokno
then. On the other side, former Chief Justice Reynato Puno did not
also grant us an interview. In the case of Puno, he has managed to hide
this part of his past because he was not as visible as Mendoza and
because of his rhetoric.
Another advertisement for myself: When I was researching on
Puno for my book, Shadow of Doubt (Vitug 2010), which was my first
book on the Supreme Court, I found out that Puno was one of Estelito
Mendoza’s second-tier lawyers, his co-defender of martial law. Puno
was working with the Office of the Solicitor General when martial law
was declared and during martial law he stayed on as counsel of
government for eleven years. He appeared in the Supreme Court during
the oral arguments on martial law, including Javellana v. Executive
Secretary. But listen to this: more than three decades after the declaration
of martial law, Puno described the regime he helped perpetuate as one
of, and I quote, “a slaughter of rights.” A period when the constitution
was “sent to the shredding machine.”
We found an account of a journalist who worked with the wire
agencies then and who is now with the Inquirer, Fernando del Mundo.
He covered one of the oral arguments and remembered Puno vividly as
part of Mendoza’s panel. Appearing in one tragic hearing, here is his
account: “He appeared in one tragic hearing four months after martial
law was declared in September 1972, on an opposition petition asking
the Supreme Court to act and stop Marcos from promulgating a
decision of a rump plebiscite”—which Professor Pangalangan discussed
extensively—“In the midst of the debate in the Supreme Court, news
was relayed to the Supreme Court that Marcos at that very moment has
just issued in Malacañang a decree proclaiming that the plebiscite was
approved by viva voce vote and the constitution that he said was now
in effect.” So, while they were deliberating in the court, mayroon na
palang decree si Marcos and this is what del Mundo wrote: “Caught flat-
footed, the justices looked stunned. The Court later issued a decision
declaring the petition argued by Lorenzo Tañada and the other
opposition lights of the time—Jose Diokno, Francisco ‘Soc’ Rodrigo,
Jovito Salonga, Sedfrey Ordoñez, Joker Arroyo—moot and academic.”
Another thing, an important point is we lack memoirs and
independent biographies, those not commissioned by the subjects. In
our research for Our Rights, Our Victories, we found some papers of Chief
Justice Concepcion, thanks to his grandson who is teaching here in

UP—I forgot what department—who lent us the papers of his grandfather.
Concepcion was the chief justice when Javellana was decided. He
dissented and later resigned from the court. But no one has written a
book about Concepcion and [he] did not leave any of his memoirs. We
do not have biographies or memoirs of justices who sat in the Supreme
Court during the martial law years. In fact, notes of justices should be
turned over to our national libraries or archives so that the public can
have access to them. I actually envy the journalist and historians in the
US because when they write biographies, they make references to
diaries, notes, memos of public officials, including justices. They are
available for public use. Perhaps as a result of these and the lack of
classroom discussions on martial law, students today hardly remember
this period in our history, and hardly know the roles certain personalities
played during these dark years. In fact, Chief Justice Puno became a
professor emeritus pa sa UP College of Law. He is very well regarded.
Again in 2012, Cris Yabes attended a talk given by Estelito
Mendoza at the UP College of Law. Unfortunately, I was not able to
go, and she said that she was surprised that the students did not ask
tough or incisive questions on Mendoza’s role in the shaping of martial
law. No critical questions and she said some of the students were even
giggling, apparently thrilled by Mendoza’s presence, sharp mind, and
wit.
The last point I will talk about is the lack of literature on Marcos
and his relationship, both personal and official, with the Supreme
Court justices—as mentioned in the diaries written by a foreign author,
the “coziness” of his dealings with the co-equal but independent
branch of the government (basahin ang appendix 4.5, 479–84). As we
know the justices should avoid meeting with the president because the
executive department has pending cases with the Supreme Court and
of course they are co-equal and separate departments. But if you go to
the actual entries of the Marcos diary—and I will show you some of
them later—he called some of them to the Palace for meetings and
dinner. At least in the time of President [Benigno Simeon] Aquino
[III], he only had one lunch with Renato Corona at the house of his
sister in Green Meadows but that is another story.
I will show you a few excerpts from the Marcos diaries, the actual
entries, which I hope you can go over, and because they can provide
leads and information, which historians can check and use. These
excerpts will show the relationship between Marcos and the justices
was not simply one way, that he dictated on them. In fact, the justices
played along and they also had a self-interest to protect, like they
wanted to stay on in the Supreme Court. So if you see, September, a
year before Martial Law—we all know the secret, Fred Ruiz Castro was
the great spy—so the 15 September 1971 entry, I will just read briefly:
“Justice Fred Ruiz Castro”—this is Marcos writing in his diary—“taking
lunch with Senator [Jose] Roy at the request of the former, suggested
that I lift the suspension of the writ of habeas corpus first in the Visayas,
then in Mindanao. He believes that this will make the Supreme Court
decision unanimous,” etc. (basahin ang appendix 4.6, 485–90). And
then, I did not put it in the slide, but on September 16, the day after,
his entry says: “I had dinner with Justice Fred Ruiz Castro, and Senator
Roy, and he affirmed that, one, the justices believe that there is a
rebellion but not all over the Philippines; that if I lift the suspension
in the Visayas, Mindanao, and some provinces of Luzon, the decision
to uphold my proclamation would be unanimous” (basahin ang
appendix 4.7, 491–96). And then September 18, two days later,
another entry of Marcos: “I’m also disturbed by the statement of
Justice Fred Ruiz Castro that the justices are only human, affected by
media, demonstrations, and propaganda or which is otherwise known
as public opinion” (basahin ang appendix 4.8, 497–502).
So, a year later, on 24 September 1972, another entry of Marcos—
this is quite interesting—he says: “Diokno, Chino Roces, Max Soliven,
etc. have filed a petition for a writ of habeas corpus before the Supreme
Court.” Again, he talked to Teehankee, Barredo, Makasiar, and
Antonio. He said, he asked them to see him and they insisted that the
government should submit to the Supreme Court for the court to
review the proclamation of martial law. And then Marcos said: “I told
them in the presence of secretaries Ponce Enrile, Vicente Abad Santos,
as well as Solicitor General Estelito Mendoza, that if necessary, I will
formally declare the establishment of a revolutionary government so
that I can formally disregard the actions of the Supreme Court”
(basahin ang appendix 4.9, 503–08). He had more detailed entries.
Actually you can get the complete entries from the PCGG [Presidential
Commission on Good Government] library, I got it from there.
On 25 September 1972, again, “Met justices Fred Ruiz Castro
and Salvador Esguerra as a consulta.” “Consulta” is a term they use in
the Supreme Court. When they say consulta, [they meant], “I would like
to seek your advice or your opinion.” Marcos said: “I told them I need
their help and counsel because we must keep all the actuations within
constitutional limits . . . . Justice Esguerra said he feels that it is a

legitimate exercise of martial law” (basahin ang appendix 4.10, 509–
16). Then another entry is also interesting: 11 October 1972 he met
again with the great spy, Justice Fred Ruiz Castro, and then Marcos
said: “I met Justice Fred Ruiz Castro. He has told the Chief Justice”—
referring to Concepcion—“of my request that there be no direct
confrontation between me and the Supreme Court. Justice Castro
called attention to the fact that in all the cases they have studied, the
US Supreme Court decided the cases after martial law was over. I
believe they will do this” (basahin ang appendix 4.11, 517–24).
On 14 November 1972, the entry of Marcos reads: “Estelito
Mendoza reports that Justice Fred Ruiz Castro has the decision
upholding the constitutionality of RA [Republic Act] 1700 with only
Justice [Enrique] Fernando dissenting and [Calixto] Zaldivar riding the
fence. But the justices would not allow him to promulgate it. I asked
him to expedite its promulgation” (basahin ang appendix 4.12, 525–
30). When I was reading this, I was really shocked because, of course,
this is all not allowed between the Executive and the Supreme Court.
Another entry, 19 December [1972] Marcos said: “In my conference
with Justice Antonio Barredo tonight at 8:30 p.m., at my request, it
seems that the justices are concerned about the constitutional provision
that they may be replaced by me, by the appointment of their
successors. He suggested that I issue a policy statement, that
notwithstanding this provision, I wouldn’t use the power” (basahin ang
appendix 4.13, 531–34). So they were also asking for something from
Marcos. Then another entry 20 December [1972], he said “[met]
justices Fred Castro, Dindong Teehankee, Felix Makasiar, Tony
Barredo, Salvador Esguerra, and Felix Antonio. They recommended
suspension of the effects of the Martial Law, during the campaign for
the Constitution,” etc. (basahin ang appendix 4.14, 535–38).
This one is a reaction. You know we were never sure if Marcos is
telling the truth, so it is best to also check the news reports or other
documents. But on 23 December 1972, it is a very interesting entry
when he said: “I am nauseated by the selfish motivation of the Supreme
Court in questioning the power of the president to appropriate funds
for the plebiscite when all along, all they wanted was my promise that
I would not exercise the power, granted me by the new Constitution
to remove them from the Supreme Court!!”—two exclamation points
pa (basahin ang appendix 4.15, 539–44).
And the second to the last [slide]. Again, on 27 January 1973, he

had dinner with the justices in Malacañang. Maybe if I were a reporter
covering Malacañang, I would have loved to wait for the justices after
they left the room. He says: “It is apparent that the other justices are
in favor of dismissing the petitions, questioning the validity of the
ratification of the New Constitution. But they want to be assured of
their continuance in office.” And then here is interesting: “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’?” He said: “We have to handle them with
finesse as the Supreme Court might become the rallying point of the
opponents of reform” (basahin ang appendix 4.16, 545–46).
Then the last slide [Marcos’s diary entry, 29 January 1973]: “The
dinner with the Justices without the Chief Justice Concepcion who is
sick in Sto. Tomas Hospital turned out well” (basahin ang appendix
4.17, 547–48). I was not able to go over the other entries but I think
there is a need for popularly written, maybe a book or a paper that will
show how Marcos related with the justices, and of course, after forty-
one years look at what a lack of our memory has brought us.
RENE A. V. SAGUISAG (DATING SENADOR, REPUBLIKA NG PILIPINAS):

[Dahil sa karamdaman, hindi nakarating si dating senador Saguisag sa
forum, pero nag-email siya sa TWSC para sa kanyang sagot sa mga tanong
ng Sentro na kanya sanang tatalakayin sa kanyang panayam. Binasa sa
forum ni Propesor Camagay ang maiksing email ni Senador Saguisag.]
Unang tanong: “Paano kinasangkapan ni Marcos ang batas upang
maisakatuparan at panatilihin ang sarili at mga kaalyadong pulitiko sa
kapangyarihan?”
Naging superexecutive, supercourt, superlegislature, at one-man
Constitutional Convention (Amendment No. 6) si Macoy [Ferdinand
Marcos] (basahin ang appendices 4.18, 549–60, at 4.19, 561–72). Mas
matindi kung ang mensahe ay: “The First Lady wants this.”
Pangalawang tanong: “Bakit hindi gaano pinag-uusapan ang naging
pagbuo sa legal na balangkas na sumuporta sa diktadurya?”
Pangamba at lagim. Sanay ang Pinoy na maging lahing alipin. Kastila,
Ingles, Kano, Hapon, Kano ulit, at Ilokano ang naghaharing uri. Saludo
tayo.
Pangatlong tanong: “Ang pangkaraniwang dahilan na ibinibigay ng mga
grupo at indibidwal na naging bahagi ng rehimeng Marcos na pinagsilbihan
nila ang diktadurya sa paniniwalang maaari nilang mabawasan ang dahas ng
kamay na bakal ni Marcos kung sila ay nasa kapangyarihan. Maaari kayang

may parehong sentimyento ang hudikatura lalo na ang Kataas-taasang
Hukuman sa usaping ito. Ano kaya ang maaaring ginawa ng hudikatura
upang pigilan ang deklarasyon at tuluyang pagpapairal ng batas militar noon.”
Good Filipinos, gaya ng good Germans ni [Adolf] Hitler, gaya ng
mga abugado noon sa Alemanya who obeyed as law anything calling itself
by that name and was printed at government expense. Nuremberg
ruled that was wrong.
Panghuling tanong: “Sa inyong pakiwari, sa konteksto ng kontemporaryong
kulturang pulitikal at katangian ng hudikatura, maaari pa kayang maulit ang
pagmamanipula ng Konstitusyon at ang pagbrabraso ng ehekutibong sangay
ng pamahalaan dito?”
Nangyari ito kay Erap na sinabi ng Korte Suprema na nag-resign base
sa Angara [diary]. We have to be eternally vigilant.
MALAYANG TALAKAYAN
CAMAGAY: Very interesting insights. The floor is now open to

questions. We encourage the students to come forward, and first,
identify themselves. Any questions from the floor? Kung walang questions
from the students, the other members of the audience? Gary [Olivar],
would you like to start?
Probably while waiting for questions from the floor, I really
appreciate the observation that we are not very good in keeping records
or sources, especially in the contemporary part of our history. In fact,
even presidential papers, they should be properly held. In the US, I
know presidential papers are really kept, but here in the Philippines,
some are found in the National Library, like the Quezon papers. But
there are some that are still not released by the families, like the Garcia
papers, they are still with the son-in-law of President Carlos P. Garcia.
So that is really a problem, so if in the executive branch we have that
kind of problem, lalo na sa judicial. So it makes it very difficult because
you need [pieces of] evidence to corroborate your assertions. Second,
the concept of biographies. I do not know—the Americans, they love
biographies, either artista or political figures. But here I notice the only
biographies that we have are usually done by foreigners. There seems to
be a problem of revealing things to fellow Filipinos. And Filipinos
open up easily to foreigners. For example, I am referring to the book
An Anarchy of Families (McCoy 1993), if you look at all the works there,
they were written by foreigners, Americans particularly. So, there is

that kind of historiographical problem which confronts us Filipinos.
The third probably is there is hesistancy to write about very recent past.
It is still fresh. That is why some historians love to write about the
Spanish period. Pero iyong contemporary, ang daming skeletons in the
closet. Like for example, the information revealed in the books of
Marites, really are, you know, mind-boggling. We see Puno, we see him
in a new light. Because he is so revered, but he had pala this dark past
of being part of the martial law period. So, siguro mayroon ding ganitong
hesitancies itong mga tao na they do not want to reveal that dark past
of theirs and [are] therefore hesitant to write memoirs. They prefer not
to write about it. They prefer not to be interviewed about that part of
their life. But it is very important. Otherwise, we lose information or
data. It might be the dark age of Philippine history if people refuse to
write, to be interviewed, to release documents, diaries. Kasi puwede
naman iyong diary, basta siguro mayroon lang “Okay, publish it after I die,”
so you are safe. I recognize from a historical point of view the problem
of sources of this particular period.
Any questions from the audience? Yes. Please identify yourself and
direct your question to any member of the panel.
RUTH PUNZALAN: So, good afternoon. I am [from] . . . Block A,

from Dean Pangalangan’s class Con Law 2 [Constitutional Law 2]. So,
the title of our forum today is, “Ang mga Pamana at Sumpa ng
Rehimeng Marcos.” And I guess coming from a Con Law perspective,
as Dean Pangalangan has discussed, Lansang v. Garcia, Javellana, and
also as Dean Bacungan has also discussed, the provisions of the
constitution with regard to the commander-in-chief powers. So those
are clearly the pamana of the rehimeng Marcos. But what do you say or
think are the sumpa from that particular part of our political history?
I guess this question goes to Dean Pangalangan.
PANGALANGAN: Thank you, Ruth, for the question. I will address

this to the organizers, the “sumpa” part is about the . . . Sorry, what does
it mean?
CAMAGAY: The bad and the good legacy. Bad is the “sumpa.”
PANGALANGAN: Okay, so the legacy of those years. Well, thank you

for the question, that is a tough one. Well, it might sound too
academic and I do not know how philosophical the organizers wished

the discussion to be, but . . . let me just focus on the legal profession.
I think the profession is too inward-looking. Exactly as Professor
Camagay says, we tend to take seriously our legalese and we accept the
trite formula of law as gospel truths. When, in fact, if you read all these
decisions, you know with the benefit of forty years [of] hindsight, and
with the benefit of the diaries that I and Marites have mentioned, you
will realize that the legal arguments were just a cover for other
maneuvers which were going on—that is, at one point. But at another
point, perhaps also we should really take the arguments seriously and
Marcos played that game to the hilt. And that is why if we focused on
Lansang and Javellana, these decisions provide the framework of
legitimacy. He called his dictatorship constitutional authoritarianism.
He said that in [other] parts of the diary he would say that we must
always have a veil of constitutionalism for everything that we do. In
other words . . . if in the beginning I said we should look beyond the
legal rhetoric and see what is really happening. Now, the second
problem for me is that we should also take legal rhetoric seriously and
see how it structures the debate, see how it legitimizes the arguments
of Marcos. I was telling Dean Bacungan earlier and I am so glad that
Marites mentioned Justice Puno, at that stage of the work of Estelito
Mendoza, he had to rely on highly theoretical and academic lawyers to
theorize about the validity of martial law, the suspension of the writ,
of illegal arrest. In other words—let me close on this point—the
traditional libertarian lawyer confronted with a warrant of arrest
against let us say a student activist, like Gary Olivar, the traditional
response will be, “Okay fine, I will defend my client. He is accused of
being a communist, my reply is he is not a communist. If he wrote this
paper, I will say that he wrote this as part of a course he had with
Dodong Nemenzo [Professor Francisco Nemenzo of UP]. If he wrote
this, it was part of his duties as a member of the student council, etc.
If he wrote this in the [Philippine] Collegian, he wrote it as part of his
freedom of speech.” In other words, it will be a purely fact-based
argument along the way. For me, maybe the lawyers should have also
looked at the larger picture about the place of radical advocacy within
the context of freedom of speech and the constitutional order. And
that is why for me, Marcos won that game. He was the only one who
played that game. Everyone just regurgitated the tired, old, liberal
theories. Marcos explored other arguments. So for me there was a
clash: the traditional formula straight from the Bill of Rights citing all
these classical statements about freedom of speech and then left-wing

orthodoxy which was totally oblivious to legal legitimacy and which
would legitimize their cause calls by their own set of slogans anyway.
And Marcos knew it was not working and he came in. And that is why
his claim of building the New Society, the Bagong Lipunan ideology,
[the] revolution from the center, for me, were not just empty attempts
to oppose nationalization. For me they were actually attempts to
provide an ideological legal ground.
DAÑGUILAN-VITUG: So, can I follow up on the question earlier,

who wrote those three books of Marcos? You said they came from UP.
PANGALANGAN: Well, Professor Camagay would know that.
CAMAGAY: Talaga naman ano, Marcos really wanted to change the

society. Talagang radical iyong New Society niya, to the point that he
had to write books to really trace why there would be a revival of the
barangay and so on and so forth. So talagang tinulungan siya ng mga ibang
mga kasapi namin sa Departamento ng Kasaysayan. Alam na yata ng iba
kung sino sila. But well it is a fact that this was a team, plucked from
members of the [UP] Department of History and they really were given
a lot of support. In fact, I knew one went to Europe to really look for
data. So, they were there in the National Library, they had a special
room where they would write. According to them, what they admired
in Marcos was when he was given the draft of the manuscript he really
read it and did marginal notes on the drafts. So he really was that
assiduous naman. It may have been ghost-written but he really read the
manuscript which came out. In fact, not the entire manuscript came
out. It was overtaken by events but they were able to come out with
three volumes of Tadhana [subtitle: A History of the Filipino People].
Iginuhit ng tadhana, kumbaga destiny.
BELLA LUCAS: I am from the Center of Integrative and Development

Studies. Dr. Camagay ang tanong ko, has anybody done a study on the
Class ‘39 of the UP College of Law? That was Marcos’s batch, ano?
CAMAGAY: Parang wala pa.
LUCAS: Magandang project sa legal history ng mga estudyante, ano?

CAMAGAY: Oo. College of Law, attention.
LUCAS: Puwedeng oral history iyan, hindi ba? Buhay pa sila hindi ba? May
buhay pa?
CAMAGAY: May buhay pa, yes.
LUCAS: Siguro magandang material iyon.
CAMAGAY: Pero iyon nga, ang experience ng Third World [Studies

Center], as far as I know—
LUCAS: Nagre-reunion iyang batches na iyan, hindi ba? Are they very
close that they do not spill the beans or whatever?
DAÑGUILAN-VITUG: Baka alam ni Dean Bacungan.
CAMAGAY: Baka si Dean Bacungan may alam tungkol doon. Mayroon na

po bang nagsulat tungkol sa Class ‘39?
LUCAS: Sa kanila pong reunion, ano pong pinag-uusapan nila kung

nagkikita-kita sila?
CAMAGAY: Sino pa bang 1939 na buhay, na classmates ni Marcos? So,

well magandang [research] agenda iyan (basahin ang appendix 4.20, 573–
76). Okay, may tanong pa ba? Estudyante, ipakilala ang sarili.
ROY DE MESA: Good afternoon po . . . from Block D sa class ni Sir

Pangalangan. History major din po dati dito.
CAMAGAY: Yes, I remember you.
DE MESA: I totally agree with what you said and what Ms. Vitug said
about the need to preserve our memories kasi main historiographical
problem nga na iyong sources natin sobrang kulang. For example, even in
the military, in the US after thirty years, they declassify the documents
of their intelligence, pero dito, diretso shredder iyon after ten years. So, may
mga ganoon tayong problems. This question is directed to you [Professor
Camagay] po. What do we have? What are the sources that we can work
with right now to create a picture in order to popularize the discourse
on martial law? Kasi iyon nga, in our generation ang dami naming hindi
alam. Even the historians now they do not really have much to work
with.
Another question; this one is directed to Professor Pangalangan.
Sir, would you think that more than just the developments of the time,
the 1935 Constitution itself, do you think that it is conducive to a
dictatorship? Kasi sir, if you look at the presidency of, for example
Quezon—aside from Marcos, Quezon was a really powerful president
and the 1935 Constitution would it have something in it that would
allow for such machinations to lead to a dictatorship? Could it be that
we adopted it from a time when the US had a very strong presidency
in Franklin Roosevelt? Those are my two questions. Thank you.
CAMAGAY: Talagang as I said, itong martial law, it is a long process

because, well, it is forty years so it is not that distant. So, ang history
talaga parang you must have the luxury of distance with the event. But,
I am happy to see some works coming out, especially iyong mga
eyewitness accounts from martial law. Unti-unti lang ang mga lumalabas
na iyan. Pati iyong parang biography of a family, iyong Subversive Lives
(Quimpo and Quimpo 2012). So unti-unti. Pero iyong official na sabihin
mong sources, ito nga binanggit ni Marites [Dañguilan-Vitug] iyong tinurn-
over ng military sa Commission on Human Rights, and that has not
been really looked [at]. Hindi pa siya masyado tinitingnan. Parang katu-
turnover lang . . . We should also get accounts [from] the people
themselves. And iyon kasing memoir, hindi tayo masyadong [naniniwala]
diyan sa ganyang klaseng sulatin. Ang memoir—because that would have
given them the chance to justify and explain their position during the
martial law period, pero hindi nga mapagsulat. And probably the culture
of writing is not that advanced in us. Pero magandang tayo ang magi-
interview kasi mas oral tayo kaysa written. Pero iyon nga ang problema. Pero
as far as I know sa experience ng Third World [Studies Center], ang
nagbukas lang talaga, ang nagsalita was Virata (Katayama et al., 2010). He
was open to being interviewed. The others like [Jaime] Laya, hindi yata
very cooperative. And the others who were members of the cabinet, kasi
sila iyong talagang makakapagsalita. Kaya nga sabi ko dapat parang may
living history na project where you interview them and you see their
faces, because there will be non-verbal communication rin, when they
pound their hand on the table to assert a strong point or something
like that. Pero iyon na nga siguro naman, as they grow older, they will be
kinder to themselves. They would like to leave a legacy. They would like
to explain their positions during the martial law period. So, at least may
diaries tayo ni Marcos na naiwan. So, talagang ano pa we will still have
to build up the newspaper accounts (basahin ang appendix 4.21, 577–
88). Mayroon tayong Radical Papers dito sa [UP] Main Library. Puwede rin
iyang tingnan. So, siguro unti-unti mayroon tayong written and oral sources
on the martial law period. Dean [Pangalangan], your turn.
PANGALANGAN: Okay, thank you so much Roy for the question.

Well, as Dean Bacungan demonstrated in the 1987 Constitution, we
built in all those safeguards against another proclamation of martial
law: automatic review of the court [on a petition filed] by any citizen—
you do not have to be arrested to do that; automatic convening of the
congress without need of a call and they can do it anywhere, so even if
the congress is padlocked they can do it. But you see, Roy, I agree with
you that the 1935 Constitution was written for a strong president,
written with Manuel Quezon in mind. But for me, my concern goes
beyond that. So for instance, even under the 1987 Constitution,
[Gloria Macapagal-] Arroyo tried to avoid all the automatic checks
mentioned by Dean Bacungan simply by refusing to call her “state of
emergency” suspension of the writ [of habeas corpus] or the operation
of martial law, so she went to the court four times. Four times she was
challenged before the court for every sort of emergency that she would
declare, but she would avoid the language of the constitution. In other
words, for me, I would rather not just look at the text, I would rather
look at the political, at the political dynamics. And notice again with
Arroyo: she declared a [state of] emergency twice. Twice the court
obliged. And then the third time, iyong David v. Arroyo [G.R. No.
171396, 3 May 2006], the court said, “Well, we better look at it this
time.” In other words, for that there were many factors, there was of
course the populist pressure, there was the fact that the person arrested
was Prof. [Randolf] David of [the UP Department of] Sociology. In
other words, for me, I would rather see the language, the text of the
constitution as merely part of a political you know, a larger picture,
rather than as a controlling text, a stand-alone text.
CAMAGAY: May tanong pa ba ang mga estudyante, faculty, other

members of the audience? Nawala na si Gary [Olivar]? Ayaw na magsalita
ni Gary Olivar?
Mayroon pong comments, not necessarily questions, but comments

from the floor? Pasensya na po dahil nilalaro pa po ng anghel itong ating mga
[estudyante sa] audience noong martial law. Pero magandang pagkakataon
ho na alamin natin kung ano ang nangyari. Okay, Marites.
DAÑGUILAN-VITUG: I just wanted to share that—I was looking for

the Marcos papers, I asked [Manuel] “Manolo” Quezon [III], meaning
hindi lang po iyong diaries pero iyong mga letters, memos, iyong mga naiwan
lahat sa Malacañang. Sabi ni Manolo Quezon, nasira iyong iba, nabasa ng
ulan. Iyong iba nasa National Archives. So we still have to go to the
Archives to check baka nandoon pa iyong iba. Pero sayang. Maybe UP can
do a project. Sayang. But Manolo Quezon was quite helpful in
directing me kasi gusto ko lang makita sana iyong, aside from the diaries,
ano pa ba iyong official letters niya, memos. Kasi he always wrote, Marcos
was always writing. He kept notes of a lot of things that he did.
CAMAGAY: You know there was before a rumor, UP wanted all the
presidential papers here. I do not know if within the Diliman campus
or close to it. But it never really materialized. Because it would have
been good [if] we have all the presidential papers intact in one place.
As of now, in the National Library we have the Quezon papers. The
Roxas papers are here in the UP Main Library, [in the University
Archives] but people have not really taken a look. Maganda rin iyon, I
can imagine, the Roxas papers, because it is [about] post-war Philippine
situation. Pero iyon na nga maganda sana kung matipon lahat. Baka itinago
rin ng Marcos family iyong ibang papers, ano? So, it would be a good
project talaga if we could have a law—law again!—na all papers of the
president should be surrendered to a particular institution for the
future generation to consult [or] use.
Comments from the floor? Questions? Yes, please introduce
yourself.
ROLANDO TALAMPAS: Nagtataka lang kami, iyong mga estudyante

hindi nagtatanong, sila iyong magmamana nitong sinasabi ng mga tagapagsalita.
But anyway ayaw nila, so kami na lang. Well, curious ako kung ano iyong
relasyon ng history at saka ng law sa long-term na perspective. Mukhang
magkaiba iyong judgment ng dalawang spheres na ito, lalo na sa usapin ng
demokrasya. Kapag historical, mukhang lumalambot habang tumatagal.
Parang nagiging humane. Dati galit na galit iyong mga tao sa diktador. Pero
in the long term, nakikita na nila iyong human side ng mga diktador at
noong mga nagmana ng kanilang kayamanan at ng kanilang poder and not
to mention ng kanilang apelyido. Pero iyong law, on the other hand,
maiiwanan iyong kaniyang sinasabi at that particular period and it is good
mayroong record iyon. Kaya lang, I doubt kung makakatulong iyong batas
para doon sa longer-term judgment ng history. Parang magkaiba iyong
perspektiba na mangyayari . . . Well, on the legal scale, sino ba talaga iyong
magdo-drawing ng legal infrastructure ng isang demokrasya? Iyon bang iba’t
ibang sangay ng gobyerno? Iyon bang presidente? O iyon bang ibang may
ideolohiya, iyong liberalismo na binabanggit ni Dr. Pangalangan? [Iyong mga]
realist na kumukontra sa mga ganoong pagtingin? O iyong mga tao in their
large numbers? Kasi it seems that mayroon ding ibang dynamic iyong
puwersang galing sa labas, labas doon sa mismong logic ng political legal
parameters ng estado.
CAMAGAY: Kanino mo gustong [i-direct] ang tanong?
TALAMPAS: Kung sino man po.
CAMAGAY: Sige, unahin na natin si Raul.
PANGALANGAN: Thank you, Professor Talampas for the question

. . . First, I recall that at the height of the human rights litigation during
the Marcos years, if I recall right, this is a quote [from] Joker Arroyo,
he was asked, “Bakit kayo file ng file ng kaso natatalo naman kayo?” And
his answer was, “We have to file the cases to document the events
because the cases will be the official record of what happened and we
must keep on filing cases, so even if you lose the case, the courts will
have a record of the events that happened.” And that is why, going back
to the question of Dr. Camagay and Marites, in fact, you can write the
history of martial law just purely by the cases. I attempted that with one
of my charts, that every big event can be traced to a case or to a legal
issuance by Marcos. And you can actually match what Marcos did after
the Plaza Miranda bombing, what he did after, you know those two
boats carrying guns from China that ran aground in Palanan, Isabela,
MV Karagatan. In other words, the big events will always have a mirror
in terms of legal documentation. But that is the most crass level of
answering the role of lawyers vis-à-vis history.
I would like to address Rolly’s point that the historians can have
a more—I do not know how you will describe it—the more humane, the
more flexible judgment [while] legal analysis remains fixed and rigid
and stiff . . . I will answer it at two levels. First is that there is a built-
in ideology for law that is encoded into the constitution. In other
words, the way I described the 1987 Constitution, it will be a
hodgepodge of left-wing goals carried out through a liberal language.
That is encoded in the document. And then it is stiff, you have to work
within that framework, so they do not have much room to maneuver
in. But I would like to close with this point: it actually goes into the
Pinoy attitude to language and to rules. Pinoys are schizoid about rules.
Sometimes they want the literal application of the rules. But sometimes
they want a more commonsense reading of the rules. And you cannot
tell, being schizoid, which Pinoy we are talking to at a given moment.
We encounter it; we deal with the UP bureaucracy. Sometimes we are
aghast at the narrowest, most legalistic reading of rules and sometimes
we actually applaud the very technical reading of the rules. I am actually
a bit sympathetic to the courts and to the bureaucrats because they do
not know at what stage, you know, what kind of interpretative leeway
they are supposed to exercise at a given point, and that was demonstrated
by Javellana, or for that matter the [Chief Justice Hilario] Davide
impeachment. Notice that for the Davide impeachment, we were very
literal with the rules. I was amicus counsel for the case and I actually
articulated that during the oral argument. That it cannot be this literal.
But I think, Rolly, at that stage it is not about ideology anymore. It is
purely legal, pure theory of law, pure jurisprudence.
TALAMPAS: Puwede makaulit? Hindi kaya complicit iyong Left doon sa

nag-evolve na legal thinking, legal framework na in-adapt ni Marcos and
his friends? Well, they gave all the excuses for Marcos to develop fully
the legal mechanisms for martial law.
PANGALANGAN: Okay, that is a nice approach, Rolly. In hindsight

it is a yes, right? It was almost like a script . . . . Again we are not going
to some conspiratorial theory of [Marcos] talking to Joma [Jose Maria
Sison, chair of the Communist Party of the Philippines], but it is
almost like the two smart guys knew what the other wanted and it was
like a ballet-like coordination between the two. And I think objectively,
one can say that they supplied one another with what the other needed
at that point in history. So the throwing of the grenade at Plaza
Miranda, from the standpoint of the Left, would sharpen class
contradictions, intensify the revolution. For Marcos it provided him

an excuse to suspend the writ of habeas corpus. Then he declared
martial law. It pushed all the above-ground student activists to go
underground and actually helped the NPA, the underground, recruit
more people. So there was that dynamic. Whether that was deliberate,
conscious, and, you know, conspiratorial, well, I do not know. But in
a sense, they worked well together. But in terms of the discourse, you
know actually if you looked at the Marxist interpretation of rules, they
are actually as positivist as the traditional Pinoy positivists. In other
words, they will be as literal about the rules as possible. No different
from Pinoy bureaucrats. In other words, the apparatchik of the
Bolsheviks will be no different from the apparatchiks of UP. They may
carry out a different ideology, they may swear by a different flag, but
their attitude about the interpretative leeway over the rules is just as
confined and as textual. I will pause at that point.
CAMAGAY: Okay, I recognize Ms. Bugnosen, a student.
MONIQUE BUGNOSEN: I am a student of Ma’am Camagay in one

of her classes and I am also a [political science] student here in CSSP
[College of Social Sciences and Philosophy]. Actually, I only came in
during Ma’am Vitug’s speech and . . . I did not really know that
Reynato Puno was somehow a conspirator . . . in the [defense of]
martial law. And when I was in high school, that was the time when
he was chief justice, so, my image of him now has changed. But I just
would like to know, since most of us here are young, most of us here
are students, could you name some prominent people, prominent
lawyers or members of the Supreme Court [then] who until now are
prominent. Like last year in UP naging issue ang Virata because iyon nga
ho he was part of the Marcos administration. Then, iyong CBA [College
of Business Administration] named the school after him. Maybe in
terms of the judiciary, sino po iyong mga prominent members of judiciary
or even lawyers [then] who are still prominent now. So that you know,
students will know who are these people who were actually part of the
martial law [regime].
PANGALANGAN: Well mostly, you know, purely, it is a generational

thing. They are all retired by now. So for instance, well, I am surprised
that you are surprised that Chief Justice Reynato Puno was once upon
a time one of the lawyers of the Office of the Solicitor General. This
is borne out of the record. In fact, one of the challenges to EDSA 1 is
entitled “Letter of Reynato Puno to the Supreme Court” [In Re: Letter
of Associate Justice Reynato S. Puno of the Court of Appeals dated 14
November 1990, A.M. No. 90-1102697-CA, 29 June 1992]—that is the
title of the case. Because when Cory [Aquino] took over, she demanded
the resignation of all the justices, reappointed them, and changed the
seniority. [Puno] wanted his old seniority and so he was one of the
challengers. So, for me they are mostly retired by now, and if some are
still in active practice, I cannot recall. Well, the classmate of Dean
Bacungan was Joker Arroyo and Joker was part of MABINI [Movement
of Attorneys for Brotherhood, Integrity and Nationalism] together
with our scheduled speaker Rene Saguisag. Well, the other difficulty
actually is that part of Philippine politics also is that, exactly the same
way that you are surprised that Puno had roots in justifying the
dictatorship, they changed their roles over time. Even some of the anti-
dictatorship guys will eventually be identifying with some questionable
factions. I am not attuned to the names. Nothing leads to the mind
right now. Well, I am sorry I cannot talk [about it].
DAÑGUILAN-VITUG: I remember I interviewed Chief Justice Puno

when he was new as chief justice and I asked him, “What can you say
about your defense of martial law?” And he said he was just doing his
job then as part of the Office of the Solicitor General and that was a
different time in his career. So now, as Supreme Court Chief Justice,
he is now a defender of human rights. So, he said it was only part of
his job. I think the other prominent personalities are still around:
President Fidel Ramos, although he was not as stern and his reputation
is not as notorious as Senator Juan Ponce Enrile, but he was there
during martial law. Of course, Juan Ponce Enrile and the ACCRA
[Angara Abello Concepcion Regala & Cruz] Law Offices. Raul, some
in the ACCRA Law Offices, right? Or was it just Enrile at that time?
Anyway, Enrile, in his memoir said that he founded the ACCRA Law
Offices during the martial law years.
CAMAGAY: Bel [Lucas], you would you like to ask a question?
LUCAS: This is for Marites [Dañguilan-Vitug]. Because I thought you

will talk about your own memoirs. Hindi ba you were already a
journalist when martial law was at the peak of things. But what you said
were from the Marcos diaries and interviews. I was hoping you will put
your own memoirs of martial law.
DAÑGUILAN-VITUG: Just to clarify, I was young, very young then.

I was a freshman at UP. I entered [UP] in 1971 after the Diliman
Commune. So that is why I am interested in that period. So I try to
look at sources.
CAMAGAY: Yes, the student. Please introduce yourself.
RAYA MANALO: Estudyante po ako ng Asian Center, Philippine

Studies. So, ang question ko po, in connection with the post-Marcos
era, kung ang Marcos dictatorship ay legal in accordance with the 1935
Constitution, ano po iyong opinyon ninyo doon sa extra-constitutional
process ng pag-upo . . . kay [Gloria Macapagal-]Arroyo. Ano po iyong
opinion ninyo sa people power as a process?
PANGALANGAN: Well, I have written on this quite extensively. For

me, the people power is difficult to fit into a constitutional straightjacket
and that is why for EDSA 1 we had to use the political question doctrine.
The court said, “What can we do, she is now there.” So, if the Marcos
metaphor was to unscramble the egg which was scrambled, the
metaphor of the court for EDSA 2 was to put the toothpaste back in
the tube. So, in other words, just to show you, over the years they have
tried about every metaphor from scrambled eggs to toothpaste just to
describe what they were doing because it was so difficult to do it. So,
yes we fit EDSA 1 and EDSA 2 within the constitutional framework,
it was really forced. And that is precisely my point, maybe we should
just be candid that something strange happened and we moved on.
Because if we force them to fit into the constitution, we distort the
constitutional order. So with EDSA 2, the resignation of Erap [former
president Joseph Ejercito Estrada], the guy never really resigned but he
exited Malacañang from the back door. He crossed Pasig River on a boat.
He had the Angara diary. And then the court said, “Well, look—.” And
then the court had to invent words: “the totality of contemporaneous
circumstances lead us to the concept of constructive resignation.” You
know what? It is an exemption to the rule. So, to shorten the answer,
no, it does not fit the constitution but we have lived with it because
[that is the] the only way to justify and to legitimize the [and] to
transform the de facto situation to de jure. I am actually more
particular . . . about the perception of the Filipino public. I do not

know Marites [Dañguilan-Vitug] if you remember this: EDSA 2, GMA
[Gloria Macapagal-Arroyo] took the oath [of office] on a Saturday. By
Monday what was the headline of the newspapers? It was Gloria playing
golf at a really fancy golf course. And for me, it shows the class character
of the uprising that overthrew [Erap]. They loved to see their new
president rubbing elbows with the rich and mighty and playing golf at
this place where, you know, [you] pay x millions just to get past the
front gate. So, for me, it was rather disappointing that we packaged it
as a people power uprising, when as Time magazine lampooned the
uprising, it was actually a rich people’s power.
To go back to your question, if you want to look at it purely as a
constitutional question, then sure, it is a game we lawyers love to play.
We can kick the doctrines comfortably. For me the metaphor really is
playing soccer: you kick the ball around. Or maybe playing frisbee. It
is a game, it is a nice game. We have fun doing it. But does it add to
the legitimacy of the entire enterprise? My position is it does not. True
legitimacy will have to be rooted in deeper social concerns, about social
inequality, about class power, about the concentration of wealth
among the few in the Philippines. But precisely that is the debate we
shunted out as soon as we shift to this legalistic mush that we traffic
in, that we profit from in Malcolm Hall. That is precisely my
conundrum. The Filipino public loves legal debate. And despite the
fact that I have been so disappointed often enough in the past, and that
the contrived nature of the debate has been exposed often enough, it
persists. So for me that is the mystery. I think the allure lies in the
promise that it is possible to have the equal protection of the law and
genuine freedom of speech, etc. And maybe we need the illusion and
that is why we hang on to the legal discourse.
CAMAGAY: Mayroon pang tanong? So, sa puntong ito ibig kong pasalamatan
ang ating mga tagapagsalita ngayong hapon: si Dean Froilan Bacungan, si
Dean Raul Pangalangan, at si Marites Dañguilan-Vitug, sa kanilang
ibinahagi. At sana ay hindi natin kalimutan na lang ito at maging isang alaala
lang. Nagpapasalamat kami sa Third World Studies Center na
nagtataguyod nito. At gaya nga ng nabanggit, nagsimula ang panayam at serye
ng lekturang ito dahil nga doon sa naging pagpapangalan ng College of
Business Administration bilang Virata School of Business, na nakatatak
na, [sa] lahat na ng information tungkol sa UP Diliman ay nandoon na ang
Virata School of Business. So, iyon ang nagpasimuno ng ganitong usapin,
na maganda naman, upang mapag-usapan ang martial law—mula

pagpapangalan ng Virata School of Business, iyong compensation
package [para sa mga human rights victims], kung bakit nakakabalik ang
mga Marcos sa arena ng pulitika, at ngayong hapon ay iyon ngang legality of
martial law. Maraming salamat sa ating mga tagapakinig at sa ating mga
tagapagsalita. Magandang hapon po sa inyong lahat.
MGA SANGGUNIAN
Coppola, Francis Ford, dir. 1972. The Godfather. United States: Paramount Pictures
and Alfran Productions. Film, 175 min.
Corpus, Victor N. 1989. Silent War. Quezon City: VNC Enterprises.
Enrile, Juan Ponce. 2012. A Memoir. Edited by Nelson A. Navarro. Quezon City: ABS–
CBN Publishing, Inc.
Guevarra, Ruben. 1998. The Story Behind the Plaza Miranda Bombing. Quezon City:
Katotohanan at Katarungan Foundation, Inc.
Katayama, Yutaka, Cayetano W. Paderanga Jr., Teresa S. Encarnacion Tadem, and
Temario C. Rivera, eds. 2010. “Edited Proceedings of the Workshop on Economic
Policymaking and the Philippine Development Experience, 1960–1985.” In Kasarinlan:
Philippine Journal of Third World Studies, supplement, 25 (1–2): 1–35.
McCoy, Alfred W. 1993. An Anarchy of Families: State and Family in the Philippines. Quezon
City: Ateneo de Manila University Press.
Marcos, Ferdinand E. 1971. Today’s Revolution: Democracy. n.p.: printed by author.
———. 1973. Notes on the New Society of the Philippines. n.p.: printed by author.
———. 1974. The Democratic Revolution in the Philippines. Englewood Cliffs, New Jersey:
Prentice-Hall International.
———. 1976. Notes on the New Society of the Philippines II: The Rebellion of the Poor. n.p.: printed
by author.
———. 1978. Five Years of the New Society. n.p.: printed by author.
Quimpo, Susan F., and Nathan Gilbert Quimpo. 2012. Subversive Lives: A Family Memoir
of the Marcos Years. With David Ryan F. Quimpo, Norman F. Quimpo, Emilie Mae Q.
Wickett, Lillian F. Quimpo, Elizabeth Q. Bulatao, Caren Q. Castañeda, Jun F.
Quimpo, and Maria Cristina Pargas-Bawagan. Mandaluyong City: Anvil.
Rempel, William C. 1993. Delusions of a Dictator: The Mind of Marcos as Revealed in His
Secret Diaries. Boston: Little, Brown, & Co.
Salonga, Jovito R. 2001. A Journey of Struggle and Hope: The Memoir of Jovito R. Salonga.
Quezon City: Center of Leadership, Citizenship and Democracy, National College
of Public Administration and Governance, University of the Philippines.
Unger, Roberto Mangabeira. 1996. “Legal Analysis as Institutional Imagination.” The
Modern Law Review 59 (1): 1–23.
———. 2004. Social Theory: Its Situation and Its Task. Vol. 2 of A Critical Introduction to Politics:
A Work in Constructive Social Theory. London: Verso.
Vitug, Marites Dañguilan. 1993. Power from the Forest: The Politics of Logging. Quezon City:
Philippine Center for Investigative Journalism.
———. 2010. Shadow of Doubt: Probing the Supreme Court. Quezon City: Public Trust Media
Group, Inc.
———. 2012. Hour before Dawn: The Fall and Uncertain Rise of the Philippine Supreme
Court. Quezon City: Cleverheads Publishing.
Vitug, Marites Dañguilan, and Glenda M. Gloria. 2000. Under the Crescent Moon. Quezon
City: Ateneo Center for Social Policy & Public Affairs and Institute for Popular
Democracy.
Vitug, Marites Dañguilan, and Criselda Yabes. 1998. Jalan-jalan: A Journey through EAGA.
Pasig City: Anvil Publishing.
———. 2011. Our Rights, Our Victories: Landmark Cases in the Supreme Court. Quezon City:
Cleverheads Publishing.

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FORUM 4 ARKITEKTURANG LEGAL NG AWTORITARYANISMONG MARCOS 169

Kasarinlan: Philippine Journal of Third World Studies 2012–13 (27–28): 169–212

‘Pag Meron Ka Nito, Wala Kang Talo!

Miyerkules, 15 Enero 2014, 1:00–4:00 n.h.

MARIA LUISA T. CAMAGAY (P ROPESOR , D EPARTAMENTO NG

RICARDO T. JOSE (DIREKTOR, THIRD WORLD STUDIES CENTER AT

payagan ng doctors niya na lumabas. But he was looking forward to this.

CAMAGAY: Sa pagkakataon na ito, ibig kong ipakilala ang ating mga

Kolehiyo ng Batas. Kasama na [dito] ang Legal Resources Center,

Macapagal-Arroyo. Kasalukuyang tagapaglathala [si Propesor Pangalangan]

na siya sa National Book Awards sa marami niyang napanalunang mga

FROILAN BACUNGAN (DATING DEKANO, KOLEHIYO NG BATAS, UP

Ito naman ang Section 4:

a majority of all its Members in regular session or special

The Congress, if not in session, shall, within twenty-four hours

The suspension of the privilege of the writ shall apply only to

During the suspension of the privilege of the writ, any person

CAMAGAY: Salamat Professor Bacungan. So, mayroon siyang iniwan na

RAUL PANGALANGAN (TAGAPAGLATHALA NG PHILIPPINE DAILY INQUIRER

GARY OLIVAR: Nineteen.

PANGALANGAN: You were nineteen years old. Gary was arrested

Fernandez said the court purported to review the suspension of the

MARITES DAÑGUILAN-VITUG (EDITOR-AT-LARGE, RAPPLER): Good

martial law—I am also a journalist, so that is one of my main interests.

So, personalities who had first-hand experiences of this defining

Justice Concepcion, thanks to his grandson who is teaching here in

constitutional limits . . . . Justice Esguerra said he feels that it is a

And the second to the last [slide]. Again, on 27 January 1973, he

RENE A. V. SAGUISAG (DATING SENADOR, REPUBLIKA NG PILIPINAS):

kamay na bakal ni Marcos kung sila ay nasa kapangyarihan. Maaari kayang

CAMAGAY: Very interesting insights. The floor is now open to

they were written by foreigners, Americans particularly. So, there is

RUTH PUNZALAN: So, good afternoon. I am [from] . . . Block A,

PANGALANGAN: Thank you, Ruth, for the question. I will address

PANGALANGAN: Okay, so the legacy of those years. Well, thank you

academic and I do not know how philosophical the organizers wished

these classical statements about freedom of speech and then left-wing

DAÑGUILAN-VITUG: So, can I follow up on the question earlier,

PANGALANGAN: Well, Professor Camagay would know that.

CAMAGAY: Talaga naman ano, Marcos really wanted to change the

BELLA LUCAS: I am from the Center of Integrative and Development

CAMAGAY: Parang wala pa.

LUCAS: Magandang project sa legal history ng mga estudyante, ano?

CAMAGAY: Oo. College of Law, attention.

CAMAGAY: May buhay pa, yes.

LUCAS: Siguro magandang material iyon.

CAMAGAY: Pero iyon nga, ang experience ng Third World [Studies

DAÑGUILAN-VITUG: Baka alam ni Dean Bacungan.

CAMAGAY: Baka si Dean Bacungan may alam tungkol doon. Mayroon na

LUCAS: Sa kanila pong reunion, ano pong pinag-uusapan nila kung

CAMAGAY: Sino pa bang 1939 na buhay, na classmates ni Marcos? So,

ROY DE MESA: Good afternoon po . . . from Block D sa class ni Sir

CAMAGAY: Yes, I remember you.

CAMAGAY: Talagang as I said, itong martial law, it is a long process

PANGALANGAN: Okay, thank you so much Roy for the question.

CAMAGAY: May tanong pa ba ang mga estudyante, faculty, other

Mayroon pong comments, not necessarily questions, but comments

DAÑGUILAN-VITUG: I just wanted to share that—I was looking for

ROLANDO TALAMPAS: Nagtataka lang kami, iyong mga estudyante