IN response to the tirades from law students and lawyers, instead of backing off from this issue, I will push further my line of argument on the problematic nature of the power of the Supreme Court vis-à-vis a martial law proclamation.
Lawyers may dispute my arguments on the basis of their knowledge of the law. But I am a political scientist, and I do not intend to make this into a legal treatise, but one that draws its logic from political analysis, which I can confidently claim as the academic province where I have built my comfortable nest.
Let me start with the pertinent provision of the 1987 Constitution, on the power of the Supreme Court vis-à-vis a martial law proclamation, which states 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 privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.”
A simple analysis of the phrase “the sufficiency of the factual basis of the proclamation” indicates that what is brought to the attention of the court is the factual basis of the proclamation only at the time it was issued by the President. This is the only issue that will be adjudicated in any petition that will be brought to the court. In fact, the Court has even ruled in two settled cases, G.R. No. 141284 and G.R. No. 171396, that on matters of ascertaining sufficiency of factual basis in relation to the President’s exercise of his commander-in-chief powers, under which a martial law proclamation would fall, the court could not go beyond what is contained in the pleadings.
The dynamics of political violence becomes significant in understanding the issue. Any scholar of political violence, which includes terrorism, rebellion or invasion, will tell you that conditions attending these are so fluid and dynamic, and that they can change for the better or the worse. Furthermore, new information may emerge which are unknown at the time any President would declare martial law.
The high court is not a trier of facts. But in this instance, it is tasked by the Constitution to pass judgment on the sufficiency of the factual basis which was prevailing at the time the President proclaimed martial law.
On this alone, I can grant the argument that the Supreme Court prevails over Congress. But this superiority of interpretation, as revealed by the exchange between Commissioners Bengzon and Bernas during the constitutional convention deliberations, is only on the matter of the sufficiency of the factual basis at the time the proclamation was made.
Thirty days, the time the SC is given to issue a decision, in addition to the days elapsed from the time martial law was proclaimed until the time the SC receives a petition, is enough for factual conditions to change.
Whatever was the factual basis for the martial law proclamation, and the arguments used to assail this in any petition that is filed questioning that basis, which by nature is expected to be limited only to those which the President has invoked, may be rendered moot and academic by either or any of the following:
—When conditions have improved that there is no more need to continue martial law, which Congress can now address by refusing to extend it beyond 60 days, if it is asked by the President.
—Or when conditions have worsened that even if the factual basis when the time martial law was proclaimed may have been insufficient, that such has now been overtaken by severe developments that would warrant the continuation of the declaration, which again only Congress is empowered to extend, upon the request of the President.
Political violence is a highly stochastic and indeterminate political phenomenon. Scholars of political violence, mostly political scientists, have diverse theories and explanations as to its causes, processes and consequences.
Terrorism, rebellion and invasion are continuing and highly dynamic political processes.
And what complicates the matter is that the act of proclaiming martial law, the basis of which the court is being asked to judge as sufficient, could trigger a series of events that could alter prevailing conditions. This can influence the dynamic unfolding of the violent acts which martial law is designed to address.
This brings us to the conundrum that Commissioners Bengzon and Bernas addressed during the deliberations for the 1987 Constitution, where the latter indicated that the power of the court, while supreme on ascertaining factual basis at a given time, is also transitory in nature since those conditions may change.
Such conundrum emerges when a political event such as martial law declared at a given time to address a dynamic political process is subjected to judicial review. Courts are institutions that are designed to judge completed acts and time-based facts.
Forcing the court to render judgment on a complex and dynamic political process such as an ongoing rebellion, or invasion, or acts of terrorism, where what is factual today may no longer be tomorrow, creates contradictions and exposes loopholes that can only but reveal its vulnerabilities and the limits to its powers.