JUST as the debate on the September 21, 1972 proclamation of martial law and suspension of the privilege of the writ of habeas corpus throughout the Philippines continues long after Ferdinand Marcos fell from power in
1986, died in Hawaii in 1989 and was finally interred amid noisy protests at the Libingan ng mga Bayani on November 18, 2016, the debate on President Rodrigo Duterte’s Proclamation 216 of May 23, 2017, declaring martial law and suspending the privilege of the writ for not more than 60 days in the whole of Mindanao, is bound to continue for a very long time even after the strongman is gone.
The vote of 11 justices in favor of the entire proclamation, three in favor of a more limited geographical coverage, and one saying the proclamation is unconstitutional, has clearly provoked a spirited response from academics and constitutional scholars, despite the President’s threat of arrest against those who would speak against the proclamation. The concurring and dissenting opinions of Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio and Associate Justice Benjamin Caguioa as well as the lone dissenting opinion of Associate Justice Marvic Leonen, who has been showered with all sorts of ad hominems in the press and social media by highly motivated responders, have triggered as much attention as Associate Justice Mariano del Castillo’s 82-page ponencia.
The Court ruling dissected
It seems safe to assume that all our lawyers, law professors, law students and law colleges are trying to dissect the controversial texts from our 15 magistrates. And that, we could look to advancing our knowledge of the Constitution and the law—and the existing political order—not so much through the majority ruling of the high court as through the dissenting opinions of some of our justices. A reputable lawyer-friend of mine tells me that although he could not agree with Leonen’s holding that the proclamation has no factual basis and is therefore null and void, he learned so much from the justice’s 92-page dissent.
Leonen had served as a peace negotiator in Mindanao before B. S. Aquino 3rd appointed him to the court, and he provides interesting cultural insights in support of his thesis that martial law is not the correct response to the Maute problem. That indeed provides a useful political insight, except that the question before the court is not whether martial law is the correct response to the problem, but whether Proclamation 216 is constitutional or not.
This question has several parts. If one part is constitutional, but the others are not, can the whole thing be declared constitutional? This is the problem which remains unresolved as far as many who are now parsing the documents are concerned. Let us now break it down into its proper parts. First, is it constitutional for the President and Commander in Chief to declare martial law and suspend the privilege of the writ of habeas corpus in response to the Maute terror attack on Marawi City on May 23, 2017? The court majority says it is, and a great many others agree, this writer included. On the court, only Leonen says no.
Is it constitutional for Proclamation 216 to cover not only Marawi and the adjacent areas where the Mautes have a presence or influence, but the whole of Mindanao, most of which remains unaffected by the Maute strike? CJ Sereno, Carpio, Caguioa—and many others outside the Court say no. A careful reading of the Constitution tends to support this position rather than that of the court majority.
But assuming the inclusion of the whole of Mindanao is indeed constitutional, is the proclamation constitutionally valid and enforceable even when it lacks the constitutionally mandated approval by a majority vote of all the members of the two Houses meeting in joint session to listen to the President’s oral or written report?
Regrettably, the court seems to believe that two separate resolutions from the Senate and the House of Representatives, passed to deliberately supplant a joint action by the two Houses, but unsupported by an accurate record of the votes that approved such resolutions, are equivalent to, and interchangeable with, a declaration by a majority of all the members of a joint session of Congress.
This, to me, is a fatal defect.
Dean Sta. Maria’s paper
An article written by Dean Mel Sta. Maria of the Far Eastern University Institute of Law, who is also a professor at the Ateneo College of Law, appears to have gained the serious attention and respect of lawyers and laymen alike for its clarity and cogency of thought. Sta. Maria does not hesitate to point out the court’s fallacious reasoning and poor grasp of the meaning of words. He frontally refutes key arguments in the court’s ruling, such as these:
“After all, the Court’s review is confined to the sufficiency, not the accuracy, of the information at hand, during the declaration (of martial law) or suspension (of the writ of habeas corpus…
“Clearly, the Constitution grants to the President the discretion to determine the territorial coverage of martial law and the suspension of the privilege of the writ of habeas corpus. He may put the entire Philippines or only a part thereof under martial law…
“Thus, the Constitution imposed a limitation on the period of application, which is sixty days, unless sooner modified, revoked or extended, but not on the territorial scope or area of coverage; it merely stated, ‘the Philippines or any part thereof,’ depending on the assessment of the President…
“The Court can act only within the confines of its power. For the Court to overreach is to infringe upon another’s territory. Clearly, the power to determine the scope of territorial application belongs to the President. The Court cannot indulge in judicial legislation without violating the principle of separation of powers, and, hence, undermining the foundation of our republican system.”
No sufficiency without accuracy
On the issue of sufficiency and accuracy of facts, Sta. Maria calls the court’s position a “dangerously sweeping statement.” He elaborates. “Dichotomizing ‘sufficiency’ and ‘accuracy’ is a grievous error. These two are inseparable. Necessarily, accuracy of data is a condition precedent to arrive at authentic ‘sufficiency.’ Otherwise the so-called ‘sufficiency’ may be faked, just like fake news. To be sure, the standard required is ‘sufficiency of factual basis,’ not merely the ‘information at hand.’ ‘Factual basis’ imperatively connotes truthfulness of the events. ‘Alternative facts’ have no place in appreciating the gravity of the circumstances or the purpose of declaring martial law,” he says.
As for the court’s statement that although the Constitution limits the power of the President to declare martial law for a period not exceeding 60 days, it does not limit the geographical area where he may proclaim it, we do not need a lawyer, much less a distinguished dean of the college of law, to point out how absurd it is. Any layman will do. The issue must be understood within the full context of the provision and the crisis it is supposed to address.
Since the President may declare martial law only in case of invasion or rebellion and when the public safety requires it, he cannot declare martial law where there is no actual invasion or rebellion and the public safety does not require it, or when there is but an “imminent danger thereof.”
To do so would constitute an “overreach.” For the court to say the President may declare martial law wherever he wants to, even if no invasion or rebellion exists and the public safety does not require it, would be a far graver overreach. For the court to restrain the President, as it should have, from proclaiming martial law in all of Mindanao could never be considered an overreach, says our law dean. “This is not even a case of ‘judicial legislation.’ This is a case of check and balance, which is the true ‘foundation of (the) republican system’,” he writes.
Hopefully, the court majority will have the opportunity to revisit these issues when they hear the motion for reconsideration, which the original petitioners are set to file before the legally imposed court deadline. And hopefully, the court would be ready for the new challenge that would confront it after the 60-day martial law period expires, and the President either fails or refuses to recognize that it has ended automatically and compulsorily, without his having to lift it, according to the Constitution and the text of Proclamation 216 itself.
A looming conundrum
One nasty conundrum looms on the horizon. The President may want martial law extended, except that under the Constitution, which he and Congress have been loath to follow, it is Congress rather than the President that has the power to extend it for a period it may determine, “if the invasion or rebellion shall persist and public safety requires it.” In the first instance, the power to declare martial law belongs to the President, and he does not have to consult Congress prior to issuing the proclamation. The Constitution merely requires Congress to convene in joint session within 24 hours following the proclamation, and within 48 hours to receive the President’s report, in person or in writing, and to approve or reject the proclamation by a majority vote of all its members. This did not happen.
A petition was filed before the Supreme Court to compel the Congress leaders to obey the Constitution, but House Speaker Pantaleon Alvarez threatened to tear to pieces any court ruling ordering the Congress to convene. As a result, the Del Castillo ponencia glossed over this particular issue, as though it was never raised at all. Now, Alvarez has been quoted as saying he would like to see martial law extended by at least five years to cover the full extent of DU30’s term. This has compelled the Armed Forces of the Philippines to issue a statement saying it would not countenance such an extension.
Would Congress now want to convene in joint session and exercise the power of extending martial law after contemptuously refusing to do so in order to pass upon DU30’s original proclamation? Whether or not Congress will do so, doesn’t this politician’s five-year proposal reveal to us, in all its shamelessness and arrogance, that the Davao mafia’s real plan is to make martial law their preferred method of governance?
While the Constitution provides that martial law may be extended after 60 days, if the invasion or rebellion which had prompted it persists, and the public safety requires it, decency and good taste would require that any proposed extension should not exceed the original 60 days, subject to another 60-day extension, if the peril subsists. But all the signs seem to show that we are now dealing with a political mafia whose lusting for power has lost its limits. Unless DU30 is himself part of it, he should now send Alvarez and company packing from Congress.