Atty. Estelito Mendoza, martial law and the 1987 Constitution Part 2

The following are some of the (loose) notes I gathered from the talk. Part One HERE.

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

Part Two:

Atty. Mendoza continued his lecture on whether judicial power, in relation to the doctrine of separation of powers, is indeed the weakest (compared to the plenary power of the legislative and the executive). In the case of judicial power, emphasis is placed on the definition of jurisdiction of the courts in the constitution – everything starts in “ALL CASES””. So if there is no case or petition, then it is beyond the scope of judicial power, he said. The exercise of judicial power cannot be on their (court’s) own volition, it needs to be triggered by a case. However, by virtue of the second par. in Sec. 3, Art. VIII of the 1987 Constitution, the presence of a case whenever any instrumentality of the government commits grave abuse of discretion amounting to lack or excess of jurisdiction, the limits on judicial power has been obfuscated and blurred by the Supreme Court. He said, whether the plaintiff is a real party in interest is hardly given relevance these days by the SC. Even when the Court has explicitly conceded the inadequacy of the legal standing of a petitioner, the SC nonetheless exercises its power and gives cognizance to the petition – an example of which is the petition to declare the Baselines Act unconstitutional (on a personal note: I was one of the petitioners in this case, our class in Public International Law under Prof. Harry Roque helped draft and file this petition). Another example which Atty. Mendoza gave is the petition to nullify the impeachment complaint against Chief Justice Davide, wherein there were 18 cases filed by 103 petitioners, none of which include the real party-in-interest: Chief Justice Davide. He said that he was an amicus curiae in this case, and he thought that some of the justices who did not take part in deciding the case exercised a “better act of prudence”.
He added that the 1987 Constitution expanded the scope of judicial power and it enabled just about anybody to trigger a case (I guess on the relaxed rules on standing). He said that in the 1935 and the 1973 Constitution, government can invoke the political question doctrine and the SC will not act on the petition. He said that “it is my view that the judiciary, particularly the
SC, has become the ombudsman of the government, esp. on acts amounting to GADALEJ. They are certainly not the weakest department of the government”. (DITTO)
 Next, Atty. Mendoza discussed whether the 1987 Constitution strengthened the judiciary and gave the Supreme Court a higher degree of independence from politics. He first discussed that in the 1935 Constitution, the members of the Supreme Court were appointed by the President, with the consent of the Commission of Appointments (1 Chief Justice, 10 Associate Justices). In the 1973 Constitution, they were appointed by the President alone (1 Chief Justice, 14 Associate Justices). In the 1987 Constitution, they are appointed by the President based on 3 nominees prepared by the Judicial and Bar Council (JBC). The question is, who are the members of the JBC, he said. This change in the 1987 Constitution, he thinks, made the power to make the appointments in the JBC and in turn, the SC, vested in the “number 1 pulitiko in the country” – the President. Hence, is the SC really independent from politics? He thinks that at least in the manner provided by the 1935 Constitution, there will be a sort of compromise (given the requirement for Comm.on Appointment’s approval). He thinks that many of the provisions in the new constitution were “written out of reality”, and did not think of them “in practical and realistic terms”. Theoretically, the justices in the Supreme Court, when appointed, should not think of themselves as “appointees”. 
He also discussed about the perceived function of the Supreme Court. He thinks that the SC’s primordial function is the enforcement of the Bill of Rights. The irony is, the Supreme Court as protector of the Bill of the Rights in a democracy, the members of which are not elected by the people.
On whether former Pres Estrada has resigned or ceased to become the President, he thinks that the SC has engaged in a political question in that case. He personally did not believe that Erap has resigned, the way he was ousted from office during EDSA Dos. When Chief Justice Davide took former Pres. GMA’s oath at EDSA, he thinks that it is the “worst thing that the SC has done”, creating the perception that the SC has become political.
He also cited the case of Javellana v. Executive Secretary, where as SolGen he took on the political question defense. He said that it was the most difficult case, but the most memorable case he has handled – they had oral arguments in the Supreme Court for 5 straight days, he said. Then he said this – “if we lost that case, what would have happened?” 
Atty. Mendoza also discussed that the power of judicial review was drastically changed in the 1987 Constitution by virtue of the provision that SC cases will be decided by the “concurrence of majority of members who actually took part in the deliberations” without explicitly providing the number required. Thus, there are situations when the constitutionality of a law is decided by a single vote [difference], he said. Then he exclaimed, “why should a constitutionality of a law be decided by a single vote? A law is the most vital function of the legislative dept and this should not be taken lightly.”
Atty. Mendoza made some suggestions at the end of his lecture. But, he said, in considering his suggestions, one must note that he has never been a judge but he has been an advocate and litigator for almost 60 years. First, he suggested that the Supreme Court should only be en banc, with only 11 members including the Chief Justice. The members of the Supreme Court should also deliberate before they vote because in deliberation, the justices will have all the necessary documents and study the cases in order to ask intelligent questions during oral arguments. “Very frankly”, he said, “I do not think this is happening simply because of the number of cases the SC has.” “This is unpardonable”, he said. The bigger problem, he adds, is that while the SC realizes this, he does “not see any perceptible move on the part of the SC to solve this problem.” An example – the Webb case. Hubert Webb was detained for 15 years, and most of that time was spent while the case was pending in the Supreme Court. He added that the Webb case is not an isolated case. He said that there must be a solution, even if it is drastic and radical. He goes on to explain the experience and practice in the Supreme Court of the United States. He narrates that the US SC receives around 10,000 petitions every year, around the same number or even greater than our SC. What do they do, he said. “They weed out all petitions, keep around a 100 or a little more and hear all the remaining in oral arguments.” He said that maybe the SC could put more faith and trust in the CA, and the former must only address the more important cases. The US SC, he said, meets in conference and vote in the result and only after a vote will a decision be penned. He adds, “Personally, i envy those whose cases are argued there. When a case is argued, then you are assured that all the members of the court know the case. They will prepare, listen and ask questions. The problem in the Philippines, he said, is that only prominent cases are heard and argued en banc.”
He ended his lecture by quoting the famous lines by Oliver Wendell Holmes posted at the UP Law lobby, and saying that he is proud to be a lawyer, an attorney, a graduate of the college.
“Thank you UP Law, happy birthday” – Atty. Estelito Mendoza.

Q & A portion –
This was really difficult, since the questions were written on a piece of paper and it wasn’t read aloud before it was given to Atty. Mendoza. It’s like the show Jeopardy- what’s the question to this answer? So bear with me on this.
Answer: When I appear for this [prominent] people, I do not charge them. I appeared for Erap in the impeachment court – no fee. I appeared for FPJ – no fee. I appeared for Mrs. Marcos – no fee.I am now appearing for Pres. Arroyo. They are all out of power now. (Laughter) I do not particularly choose them. When I became a lawyer for Mr Cojuangco and Mr. Tan, they were the targets of the government then. It just happens that they become privileged after I win the case (more laughter).
Answer: If I could have been a justice – he [Pres. Marcos] did not appoint me unless I suggest a replacement as SolGen. I did not particularly aspire to be a member of the SC.
 Answer: I cannot say I am a product of the Marcos period. I learned to be a better advocate – that is the legacy I obtained from Marcos. [He had] some fatal mistakes he committed at the end of his term. But he was a brilliant leader. I want to emphasize this – when Marcos appoints people, the first consideration is their competence for the position. The fact that they were allies is not [primary].When he appointed me, it was only a coincidence that he’s my fraternity brother. Ninoy is our fraternity brother. Capability and confidence [is what he’s looking for]. I believe the Marcos cabinet is the best compared to the other cabinets.

Question: What happened during martial law?
Answer: Well, that is a long story (A lot of laughter).Pres. Marcos declared martial law after a careful and long assessment…assessed carefully the pulse of the people. That is why when he arrested leaders of the opposition, there was no uprising. There was acceptance immediately after the declaration.
Q: What case is most painful to you?
A: I have not lost any significant case. (chuckles)
Answer: To me, the solution is to institute a system, a former President to be tried by a special body created for that purpose. In the US, there’s an independent [council/counsel], not appointed by the President. We must think of a way, insofar as problems like the PGMA issue, now. For example, notwithstanding the conviction of Erap, you still have the corruption problem. There is a perception that the conviction is not fair and trial is not according to facts and law. For lessons to be learned from the conviction of a past Pres- it must be perceived as being renderd justly.
Answer: So far as my perception, i did not know about all these money and graft of Pres. Marcos until after EDSA. But I’m convinced that he declared martial law not to obtain money.
I think he honestly intended to establish a new society.
Other quotable quotes that day –
I will not say that age is catching up with me. I have grown older, but not necessarily old.
Litigation is like tennis, you have two win 2 consecutive points.
Disclaimer: These are just loose notes from the lecture that I got. I certainly did not get everything Atty. Mendoza said. I hope that I got some good parts though, and I REALLY hope I quoted him correctly. I am posting this for those who were not able to attend but would love to know what the lecture was about.Yay to academic freedom! Haha! Please don’t quote this post. I don’t want to get sued on this, if ever there’s something  worth suing about (which I don’t think exists). Hehe. thanks!

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