MANILA, Philippines – Just “trust the good judgment of the President,” Supreme Court (SC) Associate Justice Lucas Bersamin said during oral arguments on Tuesday, June 13, if petitioners are unable to produce proof showing there is insufficient basis to declare martial law.

“I believe that the proclamation may be sufficient,” Bersamin said, adding that he is willing to presume good faith and regularity on the part of government in the absence of evidence indicating otherwise.

During his interpellation of lawyer Ephraim Cortez during Day 1 of oral arguments on President Rodrigo Duterte’s declaration of martial law in Mindanao, Bersamin emphasized that the burden of proof of showing the proclamation is invalid falls on the petitioners.

“Make an argument on the burden of proof,” Bersamin told Cortez, “because this is a big thing for me.” He grilled Cortez, asking him what standard of proof the High Court should impose – is it the magnitude of killing, damage to property, magnitude of violence, or the number of bodies?

“What do we need to review? You are not providing us material to review,” Bersamin told Cortez, who maintained that because of the SC’s constitutional power to review the basis of martial law, it can compel even Duterte to provide the necessary information.

“I cannot compel the President, you know that very well,” Bersamin retorted.

Bersamin got Cortez to agree that in the absence of a clear standard, the determination of whether there is sufficient basis for the declaration of martial law is up to the good judgment of the High Court.

Bersamin followed with: “You leave that to the good judgment of the court, as you would leave the proclamation of martial law to the good judgment of the President.” (READ: SC’s Del Castillo: Isn’t Marawi siege act of rebellion?)

‘Passive institution’

“You don’t tell us the facts you want to be put [in Duterte’s martial law report to Congress]. You know this is a passive institution, we cannot go out like the NBI (National Bureau of Investigation) or the police to gather the facts. We are not in that business,” Bersamin said.

Cortez, however, said: “Our basis is to dispute the facts upon which the declaration is based. As a general rule, we are not duty-bound to prove our negative allegation and it is up to the government to prove the basis of the declaration of martial law.” 

Associate Justice Presbitero Velasco echoed Bersamin’s line of thinking in his own interpellation of lawyer Marlon Manuel, who is representing the Marawi group of petitioners.

“There’s no attachment at all in your petition of any document that would tell the Court that there’s probably no truth to the statements in the proclamation. You have only made a very bare assertion that there is no sufficient or actual basis, and this, to me, is not proof at all,” Velasco said.

Manuel replied that what they are alleging in their petition is the “non-existence of factual basis,” so they will be unable to present documents to prove that.

Velasco pounded on Manuel, asking whether they exerted effort to verify the truth in the facts cited in Duterte’s martial law report.

“Only to the extent we can,” Manuel said, explaining that the petitioners have been at the receiving end of the proclamation.

When Velasco asked again if they verified facts, Manuel said that as residents of Marawi City, they had to evacuate to Iligan City after the crisis. (READ: Nullify martial law? Your guide to the SC oral arguments)

Checks and balances 

In an interview after the oral arguments, Manuel said the SC should have the power to find the evidence or at least compel evidence from the relevant government agencies, precisely because they were given the constitutional power to review factual basis for the proclamation.

“The SC should have their own procedure. If the Court requires the presence of the Secretary of Defense, they can do that, because they have been impleaded, they can be summoned anytime,” Manuel said.

“The 1987 Constitution, precisely may checks and balances mechanism na nilagay kasi sa karanasan natin hindi mapagkakatiwalaan ang presidente noon na naglagay sa Pilipinas sa mahabang panahon ng martial law, kaya nagkaroon sa Constitution ng maraming layers ng review mechanisms,” he added.

(The 1987 Constitution has a checks-and-balances mechanism precisely because of our experience where we could not trust the president then, who put the Philippines under martial law for a long time, that’s why the Constitution has many layers of review mechanisms.)

Nevertheless, Velasco still asked the petitioners to submit to the SC documents which will support at least their allegations that some of the statements in Duterte’s martial law report are false.

Hearsay evidence

The main basis of the petitions in refuting some of the claims in the report – such as the denied takeover of the Amai Pakpak Medical Center – are fact-check reports from news outfits.

Solicitor General Jose Calida had said in his consolidated comment, however, that news reports are inadmissible evidence because they are hearsay.

Asked how he thinks the petitioners fared on Day 1 of the oral arguments, Calida said: “I’ve seen better days.”

Calida is also set to argue before the High Court that the petitions suffer from “fatal procedural defects” that warrant their outright dismissals.

One of these technical loopholes, the Solicitor General said, is the absence of a Mandatory Continuing Legal Education (MCLE) number from one of the petitioners’ lawyers, constitutionalist Christian Monsod.

But Manuel said: “This is a very important issue of public national interest, I don’t think the SC will look at technicalities.” – Rappler.com