A warning on martial law

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Associate Justice Antonio Carpio is one of the four justices who dissented from the majority opinion sustaining the validity of President Duterte’s declaration of martial law and suspension of the privilege of the writ of habeas corpus throughout Mindanao. As is characteristic of this Senior Associate Justice, the longest serving in the Supreme Court, Carpio’s dissenting opinion is an exemplar of brilliance, perspicacity, clarity, depth, and practical wisdom. Once again, Justice Carpio comes out of the case the defender par excellence of the Constitution. His voice is sober. But make no mistake – he sounds an alarm that we should all listen to.

At the outset of his dissent, Justice expresses his disagreement with the Office of Solicitor General’s (OSG) conclusion that the “appropriate proceeding” referred to in Section 18, Article VII of the 1987 Constitution is a special civil action for certiorari under Rule 65 of the Rules of Court. He subscribes with the view that the “appropriate proceeding” referred to is a sui generis petition not falling under any of the actions or proceedings in the Rules of Court on three grounds: first, any citizen can be a petitioner; second, the Court is expressly authorized and tasked under paragraph 3, Section 18, Article VII of the 1987 Constitution to be a trier of facts in the review petition; third, the Court must decide the case within 30 days, not within 24 months in ordinary cases, from the date of filing of the petition.

Continuing with the preliminary considerations, Carpio is of the view that, contrary to the position taken by the OSG, the burden of proof to show the sufficiency of the factual basis of the declaration of martial law being sui generis is on the government and that the quantum of proof is probable cause. In his words, “Hence, to place the burden of proof on petitioners pursuant to the doctrine of “he who alleges must prove” is to make this Constitutional checking mechanism a futile and empty exercise. The Court cannot interpret or apply a provision of the Constitution as to make the provision inutile or meaningless.”

On the main issues, Carpio is of the belief that there is actual rebellion and that public safety requires the declaration of martial law and suspension of the privilege of the writ in Marawi City, but not elsewhere. Proclamation No. 216 thus enumerates the belligerent acts of the Maute-Hapilon armed fighters within Marawi City on 23 May 2017. There is no question that widespread killings with the destruction of government and private facilities deprived the whole population in Marawi City of basic necessities and services, endangered the public safety in the whole of Marawi City. However, he disagrees with the majority that actual rebellion exists outside Marawi.

According to Justice Carpio, Proclamation No. 216 and the President’s Report to Congress do not contain any such evidence, pointing out that the Proclamation itself admits that only “this part of Mindanao” is the subject of separation from Philippine sovereignty by the rebels. In fact, for the senior justice, the President’s Report did not mention any other city, province or territory in Mindanao, other than Marawi City, that had a similar public uprising by a rebel group, an element of actual rebellion. He also emphasizes that the fear that the rebellion in Marawi City will spread to other areas in Mindanao is a mere danger or threat and may not even amount to an imminent danger or threat. Thus, to allow a state of martial law and suspension of the writ of habeas corpus in the rest of Mindanao where there is no actual rebellion is a violation of the Constitution. For him the argument that the rebels could flee in other parts of Mindanao is also wrong because the rebels outside Marawi could also be issued arrest warrants even without martial law or the suspension of the writ. He reasons that neither sporadic bombings outside Marawi or in other parts of Mindanao constitute armed popular uprising amounting to actual rebellion to justify its declaration.

Today, Congress convenes jointly to consider the extension of martial law up to December 2017, purportedly because of the challenges an evolving urban warfare threat has brought. I oppose such extension, especially the longer period and its scope which is still full of Mindanao. I fear it is a dress rehearsal for nationwide martial rule for an indefinite mind. As our representatives and  senators deliberate on this crucial decision, I hope they will bear in mind the final word of Justice Carpio in his dissent, a warning to the Court, to Congress, and all citizens:

“Immediately after issuing Proclamation No. 216, President Duterte announced to the entire nation and to the world that his martial law “will not be any different from what Marcos did. The Court must take this public and official statement seriously for this is no trivial matter. When President Ferdinand Marcos declared martial law in 1972 under the Constitution, he abolished Congress, shut down media, imprisoned leaders, the political opposition, packed the Supreme Court with his law school classmates and loyalists, and ruled by decree—thereby making himself a dictator for over 13 years until the people ousted him from power in 1986. 

The review power of the Court, as well as the Legislature, on the President’s exercise of his Commander-in-Chief powers was precisely written in the 1987 Constitution as a checking mechanism to prevent a recurrence of the martial law of Marcos. The 1987 Constitution further mandates that a state of martial law does not suspend the operation of the Constitution. It is apparent that President Duterte does not understand, or refuses to understand, this fundamental principle that forms part the bedrock of our democracy under the 1987 Constitution, despite his having taken a solemn oath of office to preserve and defend the (1987) Constitution. 

The Court cannot simply gloss over this presidential mindset that has been publicly broadcasted to the nation and to the world. Any sign or acquiescence by the Court to this Presidential mindset could be fatal to the survival the 1987 Constitution and our democracy. The Court cannot play with the fire of martial law which could turn into ashes the very Constitution that members the Court are sworn to preserve and defend, a tragic event that once befell the Court in 1972 and brought the Court to its lowest point in its history. The Court must never allow the 1972 debacle to be ever repeated again. With this wisdom from hindsight, the Court must now stand firm and apply the clear letter and intent the 1987 Constitution without fear or favor, for the nation and history demand no less from every member the Court. 

The decision of the Court in the present petitions has far reaching ramifications on the future of our civil liberties and our democratic society under the rule of law. For in deciding the present petitions, the Court prescribes the fundamental rules governing the exercise of the Commander-in-Chief powers under the 1987 Constitution not only for the incumbent President but also for all future Presidents. The Court should not mercilessly inflict on the Filipino people the constant fear of a recurrence of the nightmarish martial law of Marcos.”

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