An unnecessary martial law dilemma

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FRANCISCO S. TATAD

FRANCISCO S. TATAD

THE Supreme Court has this unpleasant habit of announcing its decisions on important cases by saying simply how the 15 justices voted, without releasing the text of its ruling and the concurring and dissenting opinions that explain the magistrates’ positions on the constitutional issues. This the high court has done time and again, and it did it yet once more on the petitions questioning the constitutionality of President Rodrigo Duterte’s Proclamation 216 of May 23, 2017, declaring martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao for a period of 60 days.

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The court spokesman Theodore Te announced the votes on Tuesday, and the court ruling and the opinions of the justices were finally released at 9 p. m. on Wednesday, past the newspapers’ news deadline, though still within the 30-day court deadline (from the filing of the petitions). The documents were far too voluminous to be digested in one sitting, especially for senior citizens. So, I will not pretend to have read any of them at this writing.

Associate Justice Mariano del Castillo’s ponencia alone runs to 82 pages, Justice Marvic Leonen’s lone dissent 92 pages, Chief Justice Maria Lourdes Sereno’s concurring and dissenting opinion 51 pages. No member of the court failed to contribute their own masterpiece. So, until I am able to personally digest the texts, I will have to rely on spokesman Te’s statement and some of the more advanced press reports that 11 justices voted to uphold the proclamation; Justice Leonen voted to declare it void; Chief Justice Sereno and Associate Justices Antonio Carpio and Benjamin Caguioa voted to limit its application to Marawi and some other parts, but definitely not to cover the whole of Mindanao.

Two sets of objections
It is not yet clear to me how the justices resolved the specific objections raised by the petitioners. One objection raised by Albay Rep. Edcel Lagman and company took the position that there was no constitutional basis for the proclamation; another objection called attention to DU30’s failure to report to Congress in person or in writing within 48 hours from the issuance of the proclamation, and Congress’ refusal to meet in joint session in order to receive the President’s report, if there is such a report, and to concur in or reject the proclamation.

From the spokesman’s announcement and the subsequent press reports, it appears that the court has ruled on the first objection, but not on the second. This is critical to the completeness and legal enforceability of the proclamation. Even if the factual basis has been fully established, and affirmed by the court, the proclamation can only take legal effect with the concurrence of a majority of all the members of Congress.

DU30 finds this provision stupid, and I am a thousand times in agreement; for it gives Congress a veto power on the extraordinary power of the President and Commander in Chief in times of grave peril for the republic. But this is what the Constitution commands, and, stupid or not, it must be obeyed, if the majesty of the Constitution and the rule of law is to be maintained.

Sec. 18, Article VII of the Constitution provides: “The President shall be the Commander in Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, (the President, as Commander in Chief of all armed forces of the Philippines) may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.

“Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend shall proclamation or suspension for a period to be determined by Congress, if the invasion or rebellion shall persist and public safety requires it.

“The Congress, if not in session, shall, within 24 hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

“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 or extension thereof, and must promulgate its decision thereon within 30 days from its filing.

“A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ…”

A failed constitutional reform
This provision was supposed to be a reform of—an improvement upon—Section 10 (2), Article VII of the 1935 Constitution, which Ferdinand Marcos invoked in 1972 to proclaim martial law all over the country, which enabled him to exercise dictatorial powers until its lifting in 1980. The 1935 Constitution provides: “The President shall be Commander in Chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection or rebellion. In case of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the writ of habeas corpus, or place the Philippines or any part thereof under martial law.”

Everything that was expunged from, and added to, the 1935 provision in the 1987 Constitution was supposed to prevent the recurrence of any and all excesses committed by Marcos. In reality, it reduced the exercise of martial law from an extraordinary and exclusive presidential power into a mere political grant to the President and Commander in Chief by Congress. This is clear enough when the President submits his martial law proclamation for the approval of Congress; this becomes even much clearer when the President recommends its extension after 60 days, and it is Congress that decides whether or not to extend it, and for how long.

Understandably, DU30 made it clear he would not submit to any Supreme Court ruling that would deny the constitutional basis of Proclamation 216. And the Court avoided a frontal clash with the President by upholding his declared grounds for it. Indeed, in my view, the proclamation had demonstrably sufficient factual basis, and the justices did not have to violate their consciences or their understanding of the Constitution in order to support it.

Rebellion defined
When on May 23, 2017, the Maute terrorist group took over a hospital in Marawi City, established several checkpoints within the city, burned down certain government and private facilities and inflicted casualties on government forces and started flying the flag of the Islamic State of Iraq and Syria in several areas, they committed the crime of rebellion, in the language of the Revised Penal Code.

This crime is committed, says the Code, when one rises and takes up arms against the government “for the purpose of removing from the allegiance to said government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature wholly or partially, of any of their powers or prerogatives.” Although the Maute attack has been popularly described, even in the world press, as a terrorist strike, the government saw it as a taking of arms in order to extend the Islamic Caliphate in Mosul and Raqqa to its “Eastern Province” in Southern Philippines.

To Congressman Lagman and company, a terrorist strike, even when participated in by foreign jihadists, does not rise to the level of rebellion, and therefore fails to provide the necessary factual basis for the proclamation. This is one time I would support an expanded judicial reading of “rebellion” under Sec. 18, Article VII of the Constitution.

Our constitutional fathers did not anticipate the kind of secular and religious global terrorism we are witnessing today; we must be prepared to see that the current language of the Constitution falls short of the gruesome reality. When we finally amend or revise our Constitution, as apparently desired by many, we may have to put terrorism in the same class as invasion and rebellion as grave threats to our national well-being and security. But pending such a reform of the Constitution, the survival of our liberties may justify a judicial activism that recognizes this reality.

An unresolved constitutional issue
But pleased as I am that an open clash between Malacañang and the high court has been avoided on the factual basis of martial law, I don’t believe the court can avoid reminding the President and the Congress to comply with the constitutional requirement (inept as it may appear, as I said previously) that he report in person or in writing to Congress, and that Congress concur in the proclamation or reject it in a joint session of the two Houses. Given the President’s statement that he wants martial law to continue until “the enemies of the state” have been eliminated, he is obviously thinking of extending the proclamation after 60 days.

The power to extend the proclamation, as mentioned earlier, belongs to Congress rather than to the President. But if the Congress stubbornly and for no intelligible reason refuses to meet in joint session to pass upon Proclamation 216, how can it possibly recommend its extension after 60 days? And if the legal steps needed to complete the proclamation are not complied with, what is to prevent the SC majority, having already written their individual masterpieces in support of DU30, from declaring that the proclamation remains an incomplete, imperfect and legally unenforceable constitutional document?

This seems to me a completely unnecessary legal dilemma which the President and his Congress flunkeys should be able to dispose of quickly.

fstatad@gmail.com

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