Oral arguments on martial law

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The Supreme Court last week conducted for three days oral arguments on the three consolidated petitions assailing the constitutionality of Proclamation No. 216, declaring martial law in the entire Mindanao area.

The three consolidated petitions were filed by opposition lawmakers led by Albay Rep. Edcel Lagman, local Mindanao leaders led by lumad leader Eufemia Campos Cullamat and a group of women from Marawi led by Norkaya Mohamad.

At the onset of the oral arguments, Lagman, upon questioning by Chief Justice Maria Lourdes Sereno, said that there is no sufficient factual basis that warrants the implementation of martial law in the entire Mindanao region. Lagman stated that some of the factual bases as contained in the Proclamation and Executive Report are inaccurate and/or outright false. Assuming, he said that the first element of rebellion—rising and taking up of arms by the Maute Group against the government—may be present, the second element, i.e., the culpable purpose of rebellion, is absent. He insisted that there is no actual rebellion since the second element is not present. He likewise clarified that in case there is conflict in the decisions of Congress and the Supreme Court as to the factual basis of the declaration, the decision of the latter shall prevail.

Upon interpellation by Associate Justice Antonio Carpio on the territorial coverage of martial law, Lagman said that there is no actual rebellion in other provinces of Mindanao which would warrant the exercise of the extraordinary power of martial law in the entire Mindanao area. He noted that under the Constitution, there must be an actual rebellion for martial law to be declared. Public safety must also be compromised by that rebellion, as there have been ongoing rebellions for many decades which have not required the imposition of martial law.

During his turn for questioning, Associate Justice Marvic Leonen said that martial law “should have clear operational guidelines because it’s not simple declaration but, rather, it has real effects.” Leonen said that the SC has the power to review the declaration and should not give full deference to the chief executive and dismiss the petitions on technicalities.

Marlon Manuel, legal counsel of a group of women from Marawi, who also argued for the petitioners, insisted that the military forces can quell the ongoing atrocities in Marawi without the need for Proclamation 216. He asserted that “Under the 1987 Constitution, martial law must be an instrument of last resort. If there is a remedy less severe than martial law, such less severe remedy must be resorted to. Only when there is a showing that the situation cannot be contained unless martial law is declared, can the use of such extraordinary power of the President be justifiable”. Leonen asked the anti-martial law petitioners if Duterte’s martial law is too expansive and not limited to where the actual conflict is. Lawyer Marlon Manuel said “what may be necessary for one area may not be necessary [for] another area.”

Associate Justice Lucas Bersamin, directing questions to petitioners’ counsel Ephraim Cortez, asked if the elements of rebellion are present to which he answered in the negative. Given the situation in Marawi, the government, Cortez insisted, should submit sufficient proof that there is rebellion to necessitate the declaration of martial law. Bersamin cited the presumption of validity of the declaration by the President, who should be given reference on the matter as the Commander-in-Chief, and both put on petitioners the burden to prove the grave abuse of discretion on the part of the President.

On questioning by Bersamin as to what standard of magnitude of violence is needed to declare martial law, Cortez said that the standard should be if the safety of the public is already being endangered. It cannot be determined based on the number of bodies or damaged properties. Bersamin clarified that there is no standard but the sufficiency of fact will be based on the sound judgment of the court as the proclamation of martial law will be left to the good judgment of the president. Bersamin asked counsel how the court could properly review the factual basis considering that it does not have the materials which would be the basis for the review of the factual basis. Counsel said government should provide the materials.

However, Justice Carpio observed that the Proclamation and the Comment of the Solicitor General containing the facts used by the President to declare martial law would be enough for the Court to make a proper review. Hence, according to Carpio, to which Cortez agreed, there is no need to go outside these two documents.

Associate Justice Mariano Del Castillo questioned Lagman on his basis for claiming that the situation in Marawi does not necessitate martial proclamation in Mindanao considering that he did not personally visit Marawi City to know the actual situation there. “So it would really (be) difficult to say that the situation there does not amount to rebellion. I mean you have not been there, you have not been on the ground. You don’t know what the situation is there. How can you dispute now the findings of the sufficiency of the factual basis for the proclamation?” the justice asked. For Lagman, however, there is no need for the petitioners to be in Marawi since their review of the report submitted by the President to the House and the Senate already revealed insufficiency of factual basis for such declaration.

For his part, Solicitor General Jose Calida, defending the position of the government, rebutted the allegations of petitioners and maintained that there is a rebellion with the Maute group and other terrorist group to strip the government of control in southern Philippines. He insisted that there is rebellion because “ISIS-inspired local rebel groups have taken arms against the Philippine government for the purposed of removing Mindanao from its allegiance, and of depriving the Chief Executive of his prerogatives therein.”

He hinted that he would reveal information on the matter once it’s his turn to speak before the high court. Calida added that Duterte could also disregard the counsel of military officials as these “would merely be advisory.” He said that instead of the focus on the lack of recommendation by defense authorities, the question should be on whether the proclamation was founded on facts as the President enjoyed access to a vast intelligence network.

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