• DU30 scores, but no solution seen for constitutional crisis

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    FRANCISCO S. TATAD

    FRANCISCO S. TATAD

    I AM not embarrassed to support the Supreme Court’s finding that there is sufficient factual basis for Proclamation 216 declaring martial law and suspending the privilege of the writ of habeas corpus for not more than 60 days from May 23, 2017. But I admire Justice Marvic Leonen’s courage for his lone dissent, and regret that not enough justices shared the position of Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio and Associate Justice Benjamin Caguioa that the proclamtion should have been limited to Marawi City only, where our military troops are fighting the Islamic State-aligned Maute terrorist group until now, or at the most to the provinces of Lanao del Sur, Maguindanao and Sulu, where the Mautes are coming from.

    My deepest regret though is that the High Court failed to say that the Constitution has not been complied with, insofar as it directs the Congress to convene (even if not in session) within 24 hours following the proclamation without need of a call, to either confirm or reject Proclamation 216. This is a critical and costly lapse.

    In the beginning, I was inclined to argue that since the areas affected by the rebellion, as cited in the proclamation, cannot possibly be determined in advance with absolute precision, the proclamation should be permitted to cover areas not immediately affected but which could eventually be overrun if the rebellion spreads. This seemed to be the most reasonable position then. But I now realize the error.

    Between then and now
    In 1972, Marcos could rightfully declare martial law and suspend the privilege of the writ throughout the country because the communist rebellion, which continues to this day, raged nationwide, and the 1935 Constitution, then in force, allowed the proclamation of martial law and the suspension of the privilege of the writ not only in areas where there was actual invasion, rebellion or insurrection, but even where the danger thereof was merely “imminent.”

    The concept of “imminent danger”, however, has since been expunged from the 1987 Constitution, making it clearly out of bounds for the President to declare martial law or suspend the privilege of the writ where there is no actual invasion or rebellion, and the public safety does not require it. Of course nothing prevents the President as Commander-in-Chief from calling out such armed forces as are necessary to prevent and suppress lawless violence even if rebellion did not exist.

    This is what President Rodrigo Duterte did on Sept. 4, 2016 when he proclaimed a state of national emergency on account of lawless violence all over the country. Since this proclamation (No. 55) has not been lifted, DU30 could have used it as a legitimate excuse to exclude from the coverage of Proclamation 216 areas outside and beyond the Maute-affected territories.

    But the President did not do this. And the Court ruling failed to point it out. This to me seems a major lapse in judgment. Why did Chief Justice Sereno, as main proponent, fail to demonstrate the unmistakable merit of her argument to her colleagues? Has the fog of partisan politics clouded the customary clarity of the judicial reasoning process? Is it now too late to repair the breach? Is there no chance the issue would be raised anew in the Motion for Reconsideration which Congressman Edcel Lagman and company are expected to file in the next few days?

    My feeling is that the Justices are trying very hard not to offend the President, who tends to take as a personal offense any dissent to anything he does or says. I am, however, convinced it will not cost him anything if this particular mistake was corrected; the fight against IS-tainted Maute extremism will continue with stronger constitutional and popular support.

    DU30’s edict incomplete
    At this point, I have to ask, when does—- or when did—- Proclamation 216 enter into force and take effect? This would seem to be an absurd question, given the fact that the stream of events unleashed by the proclamation is drowning us; its 60-day run is set to expire on July 22, two days before the opening of the Second Regular Session of the 17th Congress and the President’s State of the Nation’s Address; and PDU30 is already talking of “not lifting it.”

    And yet I may not be the only one who seems to believe the constitutional steps needed to complete and perfect the proclamation as a constitutional act have not been complied with, and its validity therefore remains an open question until now. Let me explain this.

    Under the 1935 Constitution, Proclamation 1081, declaring martial law and suspending the privilege of the writ throughout the Philippines, took effect on Sept 21, 1972, the day it was signed and issued by the President, although I read its full text to the nation on TV, in my capacity as presidential spokesman, on Sept. 23, 1972. The President’s signature was all that was needed to give it full force and effect. This is not so in the present case.

    Under the 1987 Constitution, the proclamation of martial law takes effect only after the two Houses of Congress, sitting in joint session, approve the proclamation, after listening to the President’s oral or written report with 48 hours following the proclamation. If the Congress, by a simple majority vote of ALL its members, chooses to reject the proclamation, the President cannot override or set aside such rejection, and there would be no proclamation to enforce.

    Now, not only have the two Houses failed to meet. They have refused to do so without providing any valid excuse for it, without any force majeure —-whether storm, fire, earthquake, floods or the rebellion itself—-preventing them from doing so. Davao congressman and House Speaker Pantaleon Alvarez, whose sense of political power seems to exceed all limitations imposed by law and human intelligence, has threatened to tear to pieces any ruling from the Supreme Court that would compel the Congress to follow what the Constitution says.

    Although there is no risk of the Congress ever repudiating its master, it still would not risk obeying the most harmless constitutional edict. So there is no joint session of Congress, depriving the President of the constitutionally prescribed forum to make his report in person or in writing on the proclamation. Without such forum, even the public has not noticed that DU30, for whatever it was worth, had, in fact, sent a token report to Congress.

    DU30 could have easily done what Gloria Macapagal Arroyo did when she declared martial law and suspended the privilege of the writ in Maguindanao in December 2009, to disarm the politically powerful Ampatuan clan. Arroyo did not want to appear before Congress. But she did not prevent the two Houses from convening in joint session to receive her written report, which Executive Secretary Eduardo Ermita read on her behalf. The Congress concurred in her proclamation, and she lifted it after 10 days.

    In DU30’s case, he said he would not submit to what Congress or the Supreme Court had to say on martial law. But virtually unnoticed by the public, he sent a report on May 25, 2017 to explain the factual basis of Proclamation 216, which he signed in Moscow on May 23, 2017. Then both Houses heard officials of the Executive Department, the military authorities and the police on the proclamation.

    The Supreme Court majority acknowledged this submission, and effectively accepted the separate acts of the two Houses as acts in apparent compliance with the constitutional requirement of a joint session. It is, in my view, a serious mistake. After the Senate and House hearings, the Senate passed Resolution No. 338, “Expressing full support to the martial law proclamation and finding Proclamation No. 216 to be satisfactory, constitutional and in accordance with the law.” The Senate found “no compelling reason to revoke the same,” the resolution said.

    On its part, the House of Representatives passed House Resolution No. 1050, “Expressing the full support of the House of Representatives to President Rodrigo Duterte as it finds no resolution to revoke Proclamation 216 entitled, ‘Declaring a state of martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao’.”

    The ruling said nothing more, after acknowledging these two separate resolutions. It didi not compel the two Houses to convene in joint session for the purpose of passing upon DU30’s proclamation. It would appear that, as far as the Court majority is concerned, the two separate resolutions are equivalent to and interchangeable with what a joint session of the two Houses might declare. They are not the same, and this is not a mere technicality.

    The Congress vote
    The Constitution gives the joint session of Congress, by a majority vote of ALL its members, the power to revoke the President’s proclamation, which revocation the President cannot set aside. This means the majority vote of ALL its members, sitting in joint session, is needed to confirm the validity of the proclamation. Assuming the two Houses could legitimately do away with the joint session requirement, and vote separately on the issue instead, do the two separate resolutions show that a majority of ALL of the members of the two Houses voted in favor of the proclamation?

    The answer is a big NO. Del Castillo’s ponencia quotes the respective titles of the Senate and House resolutions and nothing more. But while it says they were approved by both Houses, the ruling does not contain a record of how the two Houses voted. The numbers are absolutely indispensable. For in the approval of bills and resolutions in Congress, a simple majority of the members on the floor constitutes a quorum, and a simple majority of the quorum is all that’s needed to pass a particular measure. It rarely happens that ALL the members are there.

    This means there is no assurance that the two resolutions were passed by a simple majority of ALL the members of the two Houses, sitting separately. The greater likelihood is that they were passed by a simple majority of the quorum on the floor, which is nowhere near a majority of ALL the members of the two Houses. This means the constitutional provision was never complied with, and it is a grave constitutional offense for the Court to presume otherwise. Thus, Proclamation 216 is an incomplete and perfect constitutional document, and cannot be invoked as a legitimate solution to the current crisis.

    By no means does this issue define the last of our constitutional problems. DU30’s latest statements tend to create more nightmares for those who hear him. He says he won’t lift martial law before his July 24th SONA, adding that it is the military and the police who will determine how long martial law and the suspension of the privilege of the writ will stay. One newspaper headline says, “Rody likely to extend Mindanao martial law.” The state of popular ignorance is frightening.

    DU30 does not have to lift anything at all. His martial law proclamation ends automatically and compulsorily after 60 days, on July 22, 2017, according to the Constitution and the document he signed in Moscow on May 23, 2017. Since martial law does not suspend the operation of the Constitution, civilian authority remains supreme, and the President as commander-in-chief, not the military or the police, decides whether more martial law is needed after 60 days. If DU30 believes it should be extended, he should recommend it to Congress and the latter should decide whether or not to extend it, and if so, for how long.

    This is what the Constitution says. But with Congress refusing to follow the Constitution, and the High Court saying nothing about it, the constitutional crisis has waxed rather than waned, and we see no smart solutions for it.

    fstatad@gmail.com

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