Atty. Estelito Mendoza, martial law and the 1987 Constitution

It was an honor to be able to attend and listen to one of the country's finest litigators and renowned UP Law alumnus, Atty. Estelito Mendoza. At more than 80 years old (he actually disclosed his age during the lecture - almost 82, he said), Atty.Mendoza is sharp and brilliant, though he had some “senior citizen moments" (that's according to him) throughout the talk.

9th UP Law Centennial Lecture

"The 1987 Constitution: A Marcos Legacy?"

by Atty. Estelito Mendoza UP Law cum laude '52, Harvard LLM '54, member of the UP Law Centennial Commission

The following are some of the (loose) notes I gathered from the talk -

Atty. Mendoza discussed the changes between the 1935, 1973 and the 1987 Constitution, especially with respect to the provisions regarding the Judiciary and the judicial power as a response to Marcos' declaration of martial law. He said that in the 1987 Constitution, the judicial function as arbiter, especially the Supreme Court, has been strengthened beyond its traditional parameters - i.e., the 48-hour deadline to report to Congress on the factual basis of declaration of martial law (see Article VIII, Sec 3 and Sec 5 of the 1987 Constitutions).

He said that contrary to popular belief, he was not privy to the preparation and declaration of PP 1081. He narrated a meeting in Malacanang a few hours after the declaration of PP 1081. Numerous petitions for habeas corpus were filed after the arrest of several members of the opposition. The issue raised in the meeting, he said, was how the government would respond to the petitions - would the Marcos government recognize the jurisdiction of the Supreme Court? The answer during the meeting, he said, was yes. When Pres. Marcos asked him directly, as Solicitor General, if the arrests were justified and constitutional, Atty. Mendoza said (without the benefit of research and study, he chuckled) that he could possibly defend it by using the Political Question doctrine - using the doctrines in the cases of Barcelon v Baker and Montenegro v Castaneda.

The question, he said, is whether there was rule of law during martial law. Atty. Mendoza said that yes, there was the rule of law, even if Pres. Marcos had to make the law himself (that drew laughter inside the Malcolm Theater). One thing he admired in Pres. Marcos is that the latter "assumed responsibility for every act he did". Every arrest, search and seizure order, etc. were personally signed by Marcos and not by an Exec. Sec. acting on his behalf, he said. Atty. Mendoza explained that Marcos, in proclaiming martial law, took a very broad view of what must be done to quell a rebellion aimed at overthrowing the government. He said that he thinks Marcos really wanted to establish a "New Society" aimed at stabilizing the country and make way for prosperity, etc. Marcos, he said, wants to ensure that every act is according to law, and accordingly exercised it thru the grant of legislative powers on the President via the 1973 Constitution (issuance of Presidential Decrees and Letters of Instruction). The admin of Marcos is noteworthy for the number of laws made and LOIs issued- 2,000++ PDs, 1000++ LOIs, and 14 Codes. The 1987 Constitution made all of these still operative and effective today.

Atty. Mendoza explained that the 1987 Constitution expanded the judicial function as a reaction to Marcos’ declaration of martial law - emphasis on the “duty of the courts” to exercise their power. The 1987 Constitution assured that judicial intervention is easily “triggered”. Chief Justice Concepcion explained that the 2^nd paragraph of Art.VIII , Sec 3 (definition of judicial power) is a product of the experience during martial law where the role of the judiciary was marred considerably and the government got away with the defense of political question – “uy that’s me!” Atty. Mendoza exclaimed amid mild chuckles. 

(to be continued).