No Thanks, January 8, 1972

 

No Thanks
By Teodoro M. Locsin

January 8, 1972–IF you are enjoying your constitutional rights of freedom from arrest without warrant, to be informed of the charges and to confront the witnesses against you, to a speedy and public trial, and to bail except in cases of capital offenses when the evidence of guilt is strong, it is no thanks to the Supreme Court.

The Supreme Court upheld President Marcos’s suspension of the privileges of the writ of habeas corpus, that is, of these constitutional rights, placing us all completely at the mercy of the President. The President did not act arbitrarily when he suspended the privileges of the writ, ruled the court. Did he act correctly? The court would not say. But not arbitrarily, said the court. He had his reasons—as if we do not all have our reasons for violating the law when we do. So there went our liberties, thanks to the Supreme Court.

And after our liberties—the Supreme Court itself, with the imposition of martial law, for which the Constitution provides the same grounds as for the suspension of the privileges of the writ of habeas corpus?

Under the Constitution, the President “in case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it… may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.”

But who is to say whether the constitutional justification for the suspension of the privileges of the writ exists or not?

Just the President?

That would be to insert, as previously noted here, an instant-destruct mechanism in the Constitution. There might as well be no Constitution at all. For all the President would have to do, under such an interpretation of the charter, is to say that there is invasion or insurrection or rebellion or imminent danger thereof and public safety requires the suspension of the writ—or the imposition of martial law—and that would be the end of the Constitution and all our liberties. The constitutional grounds for the suspension of the privileges of the writ of habeas corpus are the same as those for the imposition of martial law, which is the law of war, which is now law at all but the law of sheer force. War is legalized murder, and when murder is legal, how can it be said that there is any law at all?

The Supreme Court, reversing an old ruling under which it inhibited itself from inquiring into the grounds for the Presidential suspension of the privileges of the writ of habeas corpus in the name of separation of powers, was satisfied in the present instance that one of the constitutional grounds for the suspension of the privileges of the writ did exist, namely, a state of rebellion. But the court would not say whether the other ground, that public safety required the suspension, also existed. That was for the President to judge, correctly or otherwise, according to the court, which thus abdicated its power of judgment to the Executive.

The logic of this decision is appalling. Logically, all that’s needed, in the view of the court, for the suspension of our liberties is the existence of a state of rebellion—limited or otherwise—and the President’s judgment that public safety requires the suspension of the privileges of the writ. Under such a ruling, the privileges of the writ might have been constitutionally suspended the last 25 years, for there had been a state of rebellion in Central Luzon all those years. Due process depended all that time on the discretion of the President, whoever he was.

All in the name of “separation of powers”! Such separation a lone stands between due process and arbitrary rule, between the rule of law and the rule of men, between democracy and dictatorship. The powers of government are distributed among the legislature, the judiciary and the executive to avoid concentration of powers in one, which is the essence of dictatorship. The legislature enacts laws; the judiciary adjudicates, and the executive enforces the laws. Legislators legislate, judges judge, the executive executes—and the rights of the individual are preserved. “Power tends to corrupt; absolute power corrupts absolutely.” Surely, there is not need to cite examples from history, recent and ancient, to support this proposition. Only saints may be entrusted with absolute power—but only because they are not interested in it. Our congressmen, judges and Presidents are no saints.

It is for the courts, then, to do the job of judging; it’s their proper function. While the courts are open, they should be open for business—it’s none of the business of the Executive to do it for them. To vest the President with judicial powers is to go against the principles of separation of powers while the courts can exercise them.

What are courts for if not to judge?

Why should they let the President do what they should do while they can do it?

In what way does public safety require such abdication of power by the courts?

Is somebody guilty or suspected of rebellion? Of violating the Anti-Subversion Act? File the proper charge against him in court. There must be some evidence against him to justify, if not prosecution, at least suspicion. Suspicion must be based on something, otherwise it is stupid or insane, and should the rights of citizens rest on such a base? If there is no evidence at all, how could the suspect be suspect? Of what? Judgment that is arbitrary is no judgment at all, so suspicion for no reason at all is not suspicion but the vagaries of a wandering mind.

But birds of a feather flock together, it will be argued. How about guilt—by association? There are Communists—and Communist fronts, serving, wittingly or not, the purposes of the Communists. Following that argument, the Civil Liberties Union, whose membership includes justices of the Supreme Court, may well be suspect, having demonstrated with alleged Communist fronts against the suspension of the privileges of the writ of habeas corpus. And there is former Sen. Lorenzo Tañada of Movement for the Advancement of Nationalism—should he not have been arrested without warrant and jailed on suspicion of serving the cause of subversion? Look at his “suspicious” associations! But how would charges against him stand up in court, if courts performed their proper function? If he was not arrested and jailed, it was only because it was not to the convenience of the Administration—and no thanks to the Supreme Court.

The Supreme Court satisfied itself that one constitutional ground for the President’s suspension of the privileges of the writ of habeas corpus existed, namely, a state of rebellion, but would not say whether the other ground, that public safety required the suspension of the privileges of the writ, also existed, yet went ahead and upheld the suspension. A decision, one might say, that stood on one foot, not on two. A lame one. And our liberties limped along with it.

This is not to question the integrity of the Supreme Court but merely its judgment. Why such a decision? No less than President Marcos himself said early in 1971 that “last year, we broke the backbone of the Huk or HMB movement in Central Luzon with the capture of Faustino del Mundo, alias ‘Commander Sumulong,’ and Florencio Sala, alias ‘Commander Ponting,’ and with the death of Pedro Taruc, HMB chief, during a gunbattle with government troops. Successes against the New People’s Army were likewise significant. We captured several NPA commanders and forced that organization to go into further hiding. Our latest intelligence reports indicate a major dissension within its ranks arising from some failures of its leadership.”

And Brig. Gen. Eduardo M. Garcia, chief of the Philippine Constabulary, said in an article in the June 1, 1971 issue of the Journal of Commerce of New York that “insurgency and subversion are not serious problems of the government….It can be safely stated that peace and order in the Philippines can stand favorable comparison with other countries of the world.”

And Gen. Manuel T. Yan, chief of staff of the Armed Forces of the Philippines, told the press that the grounds for the imposition of martial law—the same as those for the suspension of the privileges of the writ—did not exist.

Yet the Supreme Court said that the President acted in accordance with the Constitution when he suspended the privileges of the writ while refusing to say whether he acted correctly or not, leaving it to the President’s judgment whether public safety required the suspension or not. So long as he had reasons for acting as he did, he was within his rights—right or wrong. There must be separation of powers, so let the President be the judge!

So much for the refusal of the Supreme Court to say whether public safety required the suspension of our liberties, a constitutional condition for the suspension. With our liberties went the principle of separation of powers, which the court invoked in upholding the President’s act, thus investing him with judicial powers through their abdication by the court. While invoking the principle, the court scrapped it. The Executive became the Judge—while judges were still around. What kind of separation of powers is that? Consolidation of powers in one man is the truer term.

If we are enjoying our constitutional rights of freedom from arrest without warrant, to be informed of the charges and to confront the witnesses against us, to a speedy and public trial and to bail except in cases of capital offenses when the evidence of guilt is strong, it is, to repeat, no thanks to the Supreme Court. As a New Year greeting to the Filipino people President Marcos announced last week the restoration of the privileges of the writ of habeas corpus throughout the country, effective as soon as the Quezon City court ruled on the question of the legality of the arrest without warrant of persons accused of violating the Anti-Subversion Act. The suspension would be lifted regardless of the decision of the court; the government was merely waiting for the court to decide, it was explained, so as not to make the decision academic before it could be handed down.

If not a trick, why did the President decide to lift the suspension of the privileges of the writ of habeas corpus? Former Senator Tañada had announced that he would go to the Supreme Court to question the continued suspension of the privileges of the writ. Assuming for the sake of argument that the suspension of the privileges of the writ as justified last year, is continued suspension still justified? There was a state of rebellion then as there is a state of rebellion now—limited rebellion in either case. The existence of such a state made the President’s suspension of the privileges of the writ constitutional because not arbitrary although not necessarily correct, according to the Supreme Court. Whether public safety required the suspension of the privileges of the writ—another constitutional condition for the suspension—the court would not say. Now, if the President had not lifted the suspension of the privileges of the writ and the question of their continued suspension had been raised before the court, how would the court have decided? In view of the continuing state of rebellion, would the Supreme Court have once more upheld the President, refusing to look into the question whether he was acting correctly or not, whether public safety indeed required the continued suspension of the privileges of the writ? With the restoration of the privileges of the writ of habeas corpus, the President spared the Supreme Court the possible embarrassment of having to pursue the logic of its decision upholding his suspension of the privileges of the writ to its ultimate absurdity, keeping the privileges suspended until the last Huk or subversive is dead.