Anticipating the martial law decision

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Next Tuesday, 4 July 2017, promises to be a historic day. On this day the Supreme Court will meet en banc, in the morning if the justices follow their regular schedule, to deliberate on the three petitions filed in the court questioning the validity of Proclamation No. 216, President Duterte’s martial law declaration covering the whole of Mindanao. The decision is expected to be announced later that day or, at the latest, on Wednesday, July 5, the constitutionally mandated deadline of 30 days from the filing of the petitions.

Out of deference to the Court, I will not anticipate in this column how the Court will decide. I will instead focus on identifying the issues that it might rule on and what these could imply.

Whatever the decision of the Supreme Court here, the justices will make history as this is the first time our Supreme Court will rule on the validity of a martial law declaration squarely and deliberately — certainly not under the gun. Indeed, in my view, the Justice are free to decide where to go with these petitions. This makes this case different from the other occasions when martial law was declared.

Our first experience of martial law was during World War II when Jose P. Laurel, on 21 September 1944, President of the Japanese-sponsored Philippine Republic, declared martial law throughout the country. We were then in a state of war, under Japanese occupation in fact but with an active guerrilla resistance, and martial law was a mere formality.

This was followed by President Ferdinand E. Marcos, also on the 21st of September in 1972, who distorted the use of martial law, from a legal weapon used in times of war, by using it to stay in power, suppress the political opposition, and plunder our economy. The Supreme Court, on several occasions, declined to rule on the validity of martial law by considering such decision a political question left to the president alone to decide. In later cases, it ruled that martial law was already a fait accomplit and could no longer be questioned. There was also a strong perception, in the early days of the Marcos dictatorship, that the Court was coerced to legitimize martial law by being threatened with abolition if it ruled against Marcos.

Our third experience of martial law was during the Arroyo administration when President Gloria Macapagal Arroyo imposed martial law on Maguindanao on 5 December 2009, following the Ampatuan massacre. Congress was about to vote on the revocation of this declaration and the Supreme Court was also ready to deliberate on the petitions before it when martial law was lifted, scuttling the congressional vote and making the Supreme Court case moot and academic.

Duterte’s declaration of martial law, the fourth in our nation’s history, is the first time that we will have a Supreme Court freely decide the validity of a martial law decision.

This is the first time that the procedural and substantive safeguards of the 1987 Constitution will be interpreted by the Court. Thus, Chief Justice Maria Lourdes Sereno has urged her fellow Justices of the Supreme Court to take pains in deciding this petition as it is their job “to give fealty to the words of the Constitution when martial law is declared,” because “if we [the Supreme Court] do not rule correctly and do not provide the guidelines, then it is possible that this Court will only add to the confusion rather than [to] clarify a situation. And it is only a voice of clarity and sobriety that is most necessary in times of emergency.”

As I wrote with colleague Regina Ongsiako in an article published in Rappler earlier this week, “In the decision of the Court, the 1987 Constitution will come alive.” In that article, we pointed out that before deciding on the merits of the petitions, the Court will likely dwell first on jurisdictional questions. One issue is the nature of this case as sui generis, as described by Justice Lucas Bersamin, as it is authorized by the Constitution and not the Rules of Court. Another is whether or not the Supreme Court is mandated by the Constitution to give due course to these kinds of petition given the language of Paragraph 3, Section 18, Article VII of the Constitution which states: “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 . . .”

Another procedural question is the quantum of proof that is required of the Court in deciding the petition and the deference it will give to the President’s determination of the facts.

Although these are important procedural questions, Chief Justice Sereno reminded everyone of the constitutional duty of the Supreme Court “to ensure that rules do not arrogate from our substantive rights and that has always been a principal rule in any interpretative duty that we have.” According to her, “it is only commonsensical that the Rules of Procedure follow what the Constitution designs because we could not have promulgated rules for the protection of rights unless they are first defined by the Constitution and by appropriate legislation.”

From a substantive point of view, what then should we anticipate from the Supreme Court decision on these martial law petitions?

First and most important, it would be reasonable to expect that the Court will make a finding of the adequacy or inadequacy of the factual basis of the declaration to put the whole of Mindanao under martial law. This could include an enumeration of the facts President Duterte took into account in issuing Proclamation No. 216, which facts can be determined from the text of the proclamation itself, from the President’s report to Congress, and from the information the martial law administrators, Defense Secretary Delfin Lorenzana and AFP Chief General Eduardo Año, provided the Court during their executive session meeting with the Justices.

One matter that would be interesting to look at is whether or not the Court will distinguish between the facts around Marawi and those that justified the declaration of martial law throughout Mindanao. As far as I can see, at least of the facts on the record, there is scant information about the latter while there is abundance of facts in the case of Marawi.

Second, one could also reasonably expect that the Court would lay down guidance on the legal meaning of actual rebellion, distinguishing as well as relating it to terrorism, and to meaning of the phrase “when public safety requires.” Perhaps, the Court could make it clear that these conditions must concur before a martial law declaration is justified.

Third and possibly more important in terms of long-term implications, the Court might include in its decision a delimitation of what the government can and cannot do during martial law. This is very important because we know what martial law is not—it cannot be as harsh as Marcos’ as the President described because most of Marcos did when he declared martial law is now expressly prohibited—but it is not so clear what martial law can allow.

The Supreme Court will make a historic decision next week. One can only hope it would be good for the country.

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