AT the Supreme Court, in Congress, and in the court of public opinion, the challenge of citizen petitioners and the opposition to the constitutionality of Proclamation 216 (the martial law proclamation) will not prosper unless it can marshal cogent arguments to dispute the factual basis and rationale laid down by President Duterte and his government for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in Mindanao.
To refute or contest the President’s declaration that there is martial necessity in Mindanao today, the petitioners must marshal the contrary argument that martial law is not needed to meet the crisis and siege by Maute rebels of Marawi City. They must battle the reality that the Marawi battle has been going on for three weeks now, and some 300 combatants and a score of civilians have already died. They must argue against the studied assessment by military professionals that the actions of the Maute rebel group and their foreign supporters constitute extreme danger to public safety and national security.
I suddenly thought of quantity of lawyering when the media made a big deal of the news that 300 lawyers would file a petition before the Supreme Court to question the sufficiency of the basis for the proclamation of martial law and suspension of the writ in Mindanao.
Then I wondered about the quality of argument when I heard the Liberal Party politicians and human-rights activists express their apprehension that martial law 2017 will repeat the excesses of martial law 1972. And that President Duterte will be the reincarnation of President Marcos. The Philippines will descend into dictatorship. You do not need formal training in philosophy, logic and rhetoric to recognize that there is something fallacious in this argument.
Under Section 18, article VII, the Constitution provides that “the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the writ or the extension thereof.” The high court must promulgate its decision thereon within 30 days from its filing.
The provision is an innovation created by the Constitution framers, completely unprecedented in the history of republican government (Nolledo). It is one of the new rules set up by the framers to prevent abuse or misuse of the martial law powers of the President, and to avert a repeat of martial law in 1972.
Thus, the Supreme Court hearing of the petition against Proclamation 216 will be historic, in being the first court test of the constitutional provision. Lawyers on both sides of the argument will get a footnote in court records, depending on how they fare.
The clock has started ticking for the SC proceedings on martial law 2017. On Tuesday and Wednesday (June 13 and 14), the high court began listening to the oral arguments on the petitions against the martial law declaration in Mindanao.
Martial law rationale
On the first day of oral arguments, Solicitor General Jose Calida argued the case for the government. He filed a motion seeking the dismissal of the petitions against Duterte’s declaration, saying that there were numerous procedural defects in the petitions.
He then laid out the compelling reasons and factual basis for the President’s declaration of martial law on May 23, in the middle of his state visit to Russia. He related the grim facts about the siege in Marawi, how military intelligence knew about the attack before it happened, and the extreme danger posed to the city by the Maute extremists and their foreign supporters-fighters.
216 is ‘baseless’
Petitioners Rep. Edcel Lagman of the Liberal Party and Bayan Muna lawyers Ephraim Cortez and Marlon Manuel faced the justices on the second day of arguments, to lay out their position that the martial law declaration should be nullified.
They claimed that the proclamation was baseless, that there is no rebellion or invasion committed in the ongoing crisis, and because the crisis was triggered by a military operation against alleged IS Philippines emir Isnilon Hapilon.
The presentation of the case against 216 was woefully lacking in facts and details. The constitutional framers clearly envisioned a battle in court in providing for a review by the high court.
While many other lawyers stand ready to take over in arguing against martial law, quantity of legal representation will not count for much with the seasoned justices of the high court. Indeed, the sight of so many lawyers arguing against 216 may prove hilarious for some justices.
Fallacy of false equivalence
Perhaps even more hilarious is the pet argument of the Liberals that martial law 2017 will be a repeat of martial law 1972 and its baggage of authoritarianism and human-rights abuses. They argue that with Proclamation 216, Duterte will become another Marcos.
The problem with this is that the justices will immediately recognize that this is an example of the fallacy of false equivalence, which they studied in law school and pilloried in school debates.
False equivalence is a logical fallacy wherein two opposing arguments are proposed as logically equivalent when in fact they are not.
This fallacy is commonly perpetrated when there is one shared trait between two subjects, and it is assumed to show equivalence, especially in order of magnitude, when equivalence is not necessarily the logical result.
False equivalence is a common result when an anecdotal similarity is pointed out as equal, but the claim of equivalence doesn’t bear because the similarity is based on oversimplification or ignorance of additional factors.
The pattern of the fallacy often goes this way: “If A is the set of c and d, and B is the set of d and e, then since they both contain d, A and B are equal”. D is not required to exist in both sets; only a passing similarity is required to cause this fallacy to be used.
There is false equivalence when one argues that Proclamation 216 is a repeat of Proclamation 1081. The world has changed in between them. There is an interval of 45 years between 1972 and 2017. Martial law in 2017 is local and limited to Mindanao; martial law in 1972 covered the entire country.
There is no comparison in the nationwide implementation of martial law in 1972, and the limited implementation of martial law in Mindanao.
The claim of equivalence is totally fallacious. Even the Aquino-appointed justices will have a hard time digesting this argument.
Crisis powers and Congress
American historians say that Congress is naturally reluctant to impede the action of the executive in crisis situations, especially in war situations.
In the US, Congress has never overturned a declaration of war by the President. Only once did the US Congress delve into the merits of waging war.
The US Congress has been more inquisitive in the case of US interventions abroad.
In the case of the Philippine Congress, martial law has been proclaimed only a few times, so it is nearly certain that the executive will get his way. Congress, which is generally supportive of the Duterte presidency, will be eager to back his martial law.
Whether the Congress votes in a joint session, or separately as two houses, President Duterte will get the support of Congress for Proclamation 216.
What a joint session will produce is a lot of publicity and photo opportunities for the opponents of martial law. In the end, this, not principle, is what martial law opponents are really fighting for.