Concurring opinions of San Beda Justices

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In this column, the fourth of my series on Lagman vs. Medialdea, the martial law decision, I discuss the separate concurring opinions of Justices Jose Mendoza, Noel Tijam, and Bienvenido Reyes, three members of the high court, who joined the majority in upholding President Duterte’s declaration of martial law and the suspension of the writ of habeas corpus in the entire Mindanao. I grouped them together because they are all, like President Duterte, alumni of the San Beda College of Law. In a few years, it is possible that San Beda graduates will be a plurality, if not majority, in the Court and I thought it would be good to group them together to see patterns in legal thinking from this group.

In his opening discussions, Justice Mendoza explained the nature of martial law as provided under 18, Article 7 of the 1987 Constitution. Citing the revered constitutionalist Fr. Joaquin Bernas, he said that martial law is one that pertains to the traditional concept of martial law as espoused in American Jurisprudence. Quoting Justice Isagani Cruz as well, he further noted that the “declaration of martial law has no further legal effect than to warn the citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order and that while the emergency lasts, they must, upon pain of arrest and punishment, not commit any act which will in any way render difficult the restoration of order and the enforcement of law x x x.” He conceded that the present government must be mindful of the restrictions defined in the present Constitution delimiting its exercise as can be gleaned from the government’s issuances when the Department of National Defense, in its May 24, 2017 Memorandum cited the constitutional safeguards under Section 18, Article VII of the Constitution. On this score, he was of the opinion that for as long as the requirements under the Constitution are met, the president may choose which extraordinary power to exercise in order to address the issues arising from the emergency.

Tijam’s own opinion touched on a discussion of the issue of locus standi. He opined that while any citizen can file the action, the petition should however allege sufficient grounds for the Court to take further action which could be done if there is showing of a prima facie that demonstrates insufficiency of the factual basis in the declaration of martial law or the suspension of the privilege of the writ of habeas corpus especially since Court’s review is “to be confined only to Proclamation (No. 216), the President’s Report to Congress, and the pleadings.” Moreover, he agreed with the ponencia that the action questioning the sufficiency of factual basis of Proclamation is sui generis.

On the main controversy petitions concerning the sufficiency of factual basis for martial law and the suspension of the writ, the justices offered concise explanations on their respective positions.

Justice Mendoza noted that the burden to prove the sufficiency of the factual basis lies with the government. This same position was also discussed by Tijam in his written opinion. That being said, all three justices agreed with the ruling by the majority on the existence of rebellion. Explaining his view in this regard, Mendoza said that first, it has been unquestionably established that the ISIS-linked local groups had planned to, and did, invade Marawi City. Second, they were heavily armed and posed a dangerous threat against government forces. Third, the occupation by the ISIS-linked groups paralyzed the normal functions of Marawi and caused the death and displacement of several Marawi residents. Fourth, they sought to sever Marawi from the allegiance of the government with the goal of establishing a wilayah in the region. Reyes and Tijam both fully agreed; the latter expressing his belief on the existence of probable cause for the President to believe that rebellion was being committed.

Reyes argued that the declaration of martial law and suspension of the privilege of the writ of habeas corpus are official acts of the President that enjoys the presumption of regularity. “The supposed lack of culpable purpose behind a rebellion enumerated under Article 134 of the RPC is more apparent than real. It is a mere allegation unsupported by any evidence” Reyes said. Citing the President’s report to Congress relative to Proclamation, and earlier military intelligence reports, he then proceeded to enumerate, much like in the majority opinion, the specific facts which clearly demonstrated the existence of a rebellion. Thus, the President may not be faulted for using everything in his arsenal of powers to deal with the exigencies of the situation.

The three justices were one in saying that considering the extant realities on the ground the Proclamation covering the entire Mindanao has sufficient factual basis.

Tijam sums up the sentiment of his colleagues who were with the majority, when he said: “Those who criticize martial law are haunted by the abuses of the past and fearful of the potential dangers it may entail. But these apprehensions have no bearing when the noble objectives sought to be accomplished are the protection of the people and the defense of the state.”

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