ALL constitutions are necessarily expressions of restraints on government. Each one has a bill of rights that protects individual citizens from an abusive state. It defines the limits of the powers of all branches of government. Thus, it is in the very nature of constitutional democracies to have limited governments.
In an earnest desire that never again shall a future president declare martial law the way Marcos did, the framers of the 1987 Constitution formulated provisions that would have the effect of tying further the hands of the state.
Any government must be accorded emergency powers, for it is also embedded in the duties of the state to protect its citizens. However, the1987 Constitution effectively clipped the power of the state to deal with rebellion, invasion and lawless violence.
Section 18 of Article VII of the Constitution stipulates that the President, as Commander in Chief, can call the armed forces when there is a threat of rebellion or invasion. It is only in actual rebellion or invasion, or when lawless violence is so pervasive, that the President can declare martial law, and suspend the privilege of the writ of habeas corpus. However, the power of the President is not absolute, for it can be revoked by Congress which shall remain open. The Supreme Court which shall remain functional can come in to declare the factual basis of the proclamation as insufficient.
But what exactly is the power of the Supreme Court?
It is clear that proclaiming martial law is a power given solely to the President as Commander in Chief.
Concurrence by Congress was not required by the framers of the Constitution precisely because they would not want the hands of the President tied by congressional debates in the face of an actual rebellion or invasion, where he needs to quickly respond. Congress was, however, given the power to revoke the proclamation anytime it sees fit, or extend the period beyond 60 days.
Hence, the President and Congress are accorded powers by the Constitution which are inherent to their political mandates. The President proclaims martial law as Commander in Chief, and Congress deliberates whether to revoke it or extend it, as representatives of the people.
The Supreme Court, however, is given a task that is totally misaligned with its very nature as a court that decides on matters of law. One has to dig deep into logic to comprehend how the sufficiency of the factual basis of a martial law proclamation can be a question of law.
What the Constitution has bestowed on the high court is the power to determine grave abuse of discretion as basis to nullify acts of the executive and the legislature, but not to be a trier of facts, which is what is asked when it renders judgment on the sufficiency of the factual basis of martial law.
In an earlier case, the court ruled that on matters that have to do with reviewing the Commander in Chief power of the President, it would not dwell on the correctness of the decision, but on whether the President acted arbitrarily. Here alone, one can see that even the court has realized that it is not in a position to investigate facts.
This, however, has not stopped certain justices from going beyond the limits of the powers of the court. This is seen in the recently held oral arguments, when some justices ventured into speculations on the correctness of the imposition of martial law.
Associate Justice Leonen argued that declaring martial law is an admission of failure of governance, an audacious claim that has nothing to do with the task given to the court. He also delved into the operational aspects of martial law, even to the point of asking for something like an IRR to govern a martial law proclamation, as if martial law is just any other piece of legislation.
The line of questioning also reveals a lack of appreciation of the dynamics of terrorism, as a form of rebellion. Senior Associate Justice Carpio kept emphasizing that rebellion is different from terrorism, when the taxonomy of political violence as studied in political science has clearly identified terrorism as an act that rebels could do.
Legally speaking, RA 9372, or the Human Security Act of 2007,specifically lists rebellion as an act of terrorism.
Justices Carpio and Leonen also question the necessity to proclaim martial law when what we had in May 23, according to them, was a mere threat, which under Section 18 warranted only a mere calling of the Armed Forces. Justice Carpio further averred that at present, martial law may have been warranted, but must only be limited to Marawi City.
With all due respect to Justices Carpio and Leonen, the determination of when a rebellion starts, or what activities are considered part of it to merit the inclusion of a place under the proclamation of martial law, is not a justiciable issue, but a technical and operational one. A meeting of terrorists planning an attack on Marawi is clearly already an act of rebellion. Furthermore, terrorism and rebellion could not be easily contained within a geopolitical boundary. After all, IS has gone global.
The job of the court is to determine whether the President exercised prudence in appreciating the facts that led him to proclaim martial law. Anything beyond that is judicial overreach.