How President Marcos’s dance with the justices led to the constitutionality of a dictatorship

A retired general once told me that the coded signal for the implementation of martial law was “happy birthday.” By and large, we’re familiar with the basic plan for its imposition: the amazingly harmless ambush attempt on Juan Ponce Enrile gave a pretext for Marcos to declare martial law. He therefore asserted his constitutional power to declare the existence of a rebellion, then went further and said there was a corresponding need to reform society. That was the gist of Proclamation 1081. What’s often overlooked is that the proclamation of martial law was accompanied by other orders that gave his proclamation teeth. He issued General Order No. 1 (a general order is an instruction to the armed forces by the president in his capacity as commander-in-chief), assuming all the powers of the entire government, and asserting he would direct the operations of the entire government, including all agencies and instrumentalities. He then issued Letter of Instruction to Kit Tatad (Press Secretary) and to Enrile (Secretary of National Defense), authorizing the seizure of and closure of private media. He then issued General Order No. 2-A, ordering Enrile to arrest individuals Marcos deemed enemies of the state and anyone else accused of offenses versus the Penal Code ranging from smuggling, drugs, tax evation, to public morals; and General Order No. 3, retaining all the courts but specifying that all challenges to martial law would be handled by military courts. This was also accompanied by General Order No. 4, imposing a midnight to 4 A.M. curfew. Finally, there was General Order No. 5, banning all demonstrations. In one fell swoop, in addition to ordering arrests, the closing of media, a stop to international flights and phone calls, and the capture of utilities like Meralco, he’d granted himself lawmaking powers as well as the power to limit the jurisdiction of the courts.

.

To this day, the exact chronology of the events of September 22 to 23, 1972 isn’t quite clear. In particular, the actual day and time he signed Proclamation 1081 has proven hard to pin down because Marcos himself was inconsistent about it. Although he made September 21 the official date, at one point (in January 1973, talking to a conference of historians) he himself said he signed it on September 17. Some close to him assert it was signed at 9 P.M. on September 22, after the Enrile “ambush.” Other writers state it was signed at 3 a.m. on September 23. The public got to know about it when Marcos went on the air in the evening of September 23 to explain why most media had been shut down, with friendly stations broadcasting muzak and cartoons all day. In his broadcast, Marcos said he’d signed the proclamation on September 21, but that it had come into effect on the 22nd. The document itself provides a clue: it doesn’t bear the countersignature of either Executive Secretary Alejandro Melchor, or Assistant Executive Secretary Ronaldo Zamora—both of whom were out of town on September 21 to 23.

.

In his diaries, Marcos wrote that September 21 as the day for imposing martial law was decided in a meeting with close advisers on September 13. The date was selected because Congress was due to go on recess on the 21st. The armed forces signed off on September 14. Plans were finalized on September 18. The armed forces submitted a formal study to serve as a basis for it, on September 20. But Congress did not go on recess on the 21st as expected: instead, the recess was expected to begin on the 22nd. Meanwhile, the typing of the various orders was completed at 8 p.m. on September 21. More than numerology (the usual reason given to explain Marcos’s fetish for the 21st, a date divisible by his lucky number, 7), the need to catch Congress, media, and the public off guard dictated the tempo of events.

.

Even after Marcos got away with martial law, he remained nervous about the Supreme Court. On September 24, he summoned Justices Claudio Teehankee, Antonio Barredo, Felix Macasiar, and Felix Antonio to a meeting. They insisted he should submit the legality of martial law to the Supreme Court for review. Marcos replied that if necessary, he would proclaim a revolutionary government. You can sense Marcos’s glee in recounting the response of the Justices: “They insisted we retain a color of constitutionality for everything that we do.” That evening, Marcos issued his first Presidential Decree: reorganizing the entire government. The next day, the 25th, Marcos met two more Justices of the Supreme Court: Fred Ruiz Castro and Salvador Esguerra and told them “there must be no conflict between the two separate departments of Justice and Executive for it would be embarrassing to both.” They agreed. By September 25, Marcos could crow in his diary, “It is indeed gratifying that everyone now finds or discovers I am some kind of a hero! There is nothing as successful as success!”

.

But work remained to be done. Purged of hard-core oppositionists, the Constitutional Convention submitted a draft to Marcos who wanted a new constitution in place before Congress could convene in January 1973. He did this by setting aside plans for a plebiscite (which it seems he was going to lose) and calling for “citizen’s assemblies” instead. On January 22, the Supreme Court said it was willing to meet Marcos on the matter, though Marcos, in his entries on January 23 to 24, 1973, was worried the Supreme Court might declare the new Constitution invalid. On January 27, he heard the Justices would accept the validity of the new Constitution—and by the way, was there an assurance they would keep their jobs? On the 29th, he met the Justices (minus Chief Justice Roberto Concepcion, who was sick), and made his case: Justice Fred Ruiz Castro said, “I get the message, Mr. President.” By March 31, 1973, victory was complete. The Supreme Court said the new Constitution was in full force and effect (heartbroken, Chief Justice Concepcion retired in protest). In September 1974, the Court set aside challenges to the arrests of two years before, saying it was a political question.

.

Concepcion, who was made a Constitutional Commissioner in 1986, proposed additional powers for the Supreme Court, to limit its ability to repeat the performance of 1973-74, when it ducked under the cover of “political questions.”

The result has been two decades of clashes with presidents and congress, and a new question—are the Supremes now the most powerful branch of government? A possible case of the cure being as ominous as the disease it was meant to cure.

Originally appeared in Rogue’s 2014 Style Issue (September 2014). For excerpts and links to the Marcos diaries, visit The Philippine Diary Project atwww.philippinediaryproject.com.