Constitutional morality

I have known retired Supreme Court Justice Vicente V. Mendoza for a long time, way back at the College of Law of the University of the Philippines. His life, in fact, is intertwined with the UP College of Law, where he taught for 27 years before his appointment to the Supreme Court, and where he teaches now after retiring recently.

"Enteng," as his friends call him, served for 10 years in the Solicitor General’s office, where he rose to the rank of assistant Solicitor General in 1973, and thereafter for 13 years in the Court of Appeals where he became its Presiding Justice.

As you can see, there were simply no deviations in life from law. Having graduated from the UP College of Law in 1957 with a Bachelor of Laws degree, and a Master of Laws degree from Yale Law School, you could predict with certainty that his professional life would not have any deviations from the field.

He was awarded memberships in the international honor societies of Phi Kappa Phi and Pi Gamma Mu, and it was easy to predict that his professional life would be an excellent pursuit. Even as he wrote and authored several books through the years, you knew that he would excel. His book, Judicial Review of Constitutional Questions, published in 2005, is an excellent reference on constitutional law.

In April 2005, he delivered the inaugural J.B.L Reyes Lecture on Contemporary Law, sponsored by the IBP (Integrated Bar of the Philippines) Law Journal. From 1996 to 1998, he was a participant, the only one from Asia, in the Global Constitutionalism seminar of Yale Law School, which drew scholars and jurists from various countries.

Even in his personal life, Justice Mendoza did not deviate from the path of excellence. He married Thelma Lee, with whom he has three accomplished children. Thelma, before her retirement recently, was a professor of Social Work also at the University of the Philippines. Pretty, accomplished, intelligent, and very sharp, Thelma Lee was an excellent choice for a wife. Certainly the words of Disraeli – "It is a wretched taste to be gratified with mediocrity, when the excellent lies before us" – ring true! Justice Mendoza chose the path that lay before him – the path of excellence.

A little over a month ago, as a retired justice of the Supreme Court, he testified before the Senate Committee on Justice on the "State of National Emergency" declared by the incumbent president, a controversial declaration which to my mind not only spawned serious controversy and unrest, but brought to the fore the abuses a sitting president can indulge in, and most likely get away with. For there are aces, it seems, up her sleeves, that have to do with so-called substantial influence through her appointing power of at least 10 Supreme Court justices, control of a great majority of the members of the House of Representatives, control of the local government units, current control of the present military leadership, which could be looked upon as fluid, depending on the circumstances and forces at play as time goes by.

To inject a sober note into the political circumstances and the political debate existing right now, I thought it would be a good idea to feature the thoughts of an excellent constitutional specialist, Justice Mendoza, on constitutional morality, which are words of great worth during these days of conflict and confusion.

Justice Mendoza starts by saying that the constitutional order rests on a delicate balance between liberty and authority, and the maintenance of this balance demands not only breadth and vision of the future, but also a constitutional morality to discuss what is appropriate and what is not.

Without vision and a sense of morality, the constitutional order cannot endure. He puts it quite wittily when he states: "It cannot abide the tit for tat of petty minds, the lack of scruple of those who would stretch the law to the breaking point to gain a partisan advantage, the mindlessness of those who press selfish claims to the bitter end!"

According to him, the constitutional universe is like the physical one, and the exertion of force will certainly be met by an "equal and counter force"! It is absolutely true when he says that the aggrandizement by one department of government of the powers of the other departments, invites retaliation by the latter, and that flagrant violations of individual rights by those in power risk a rebellion by those who are oppressed!

"Government is instituted to secure the lives, liberties and fortunes of the people. For this reason, and this reason alone, it is invested with adequate powers, and placed in command of an armed force. That the powers of government will not be misused by it and that the people may find fulfillment of their individual aspirations and rights are retained by them. The exercise of these rights is as much a duty as a privilege. The people cannot default in the performance of this duty without forfeiting their rights. Much less can they abuse these rights without inviting repression by those who wield power and authority," are statements that we should bear in mind.

There is so much truth therefore, as the learned justice says, that the constitutional order demands its maintenance, tolerance, forbearance, good will, and above all, good faith. He says that if we fail to nurture these civic virtues and observe constitutional morality, the constitutional order will break down and lawlessness and anarchy will surely follow until a totalitarian regime is established. "It is thus necessary to have the wisdom to live our constitutional faith," he says.

It was no surprise when Enteng was chosen from among the retired justices to testify before the Senate Committee on Justice on March 13, 2006, with regard to the constitutionality and legality of Proclamation No. 1017. In his testimony Justice Mendoza said that "Proclamation No. 1017, dated February 24, 2006, of the President of the Philippines is not a declaration of martial law or suspension of the privilege of the writ of habeas corpus. It is no more than a call by the President to the armed forces to prevent or suppress violence and rebellion and to maintain law and order. As such, it cannot be used to justify acts that only under a valid declaration of martial law or suspension of the privilege of habeas corpus can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires. While Proc. 1017 contains a declaration of a state of emergency, it stops short of giving any order to the military."

Not being a political person but an academician, a retired jurist, and now, still a professor of law, it was an opportunity for this learned justice to speak out so that when he concluded his testimony in the manner he did, defining constitutional morality, it was certainly expected of him.

"The constitutional order exists in the tension between freedom and authority. We, the sovereign Filipino people, established this government for the security of our lives and the enjoyment of our rights. We endowed it with adequate powers, including the power to declare martial law with the aid of the armed forces, the better for it to act decisively in times of grave peril to the nation. These powers are not to be used by it to oppress us. On the other hand, we the people have certain basic rights to enable us to practice self-government and realize our individual aspirations within the framework of the legal order."

The venerable former justice ends by saying, "This is our constitutional faith. Our failure to keep this faith through the sedulous maintenance of the delicate balance between liberty and authority can only lead to anarchy and the eventual establishment of a totalitarian regime. May we have the wisdom to keep that balance ever true!"

Excellent words from a person who has always pursued excellence and achieved it.

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