MANILA, Philippines (UPDATED) – The Supreme Court (SC), in a landmark decision on Tuesday, July 4, said the Chief Executive should be trusted to declare martial law and should have the sole discretion on its scope.

“The Constitution grants him the prerogative whether to put the entire Philippines or any part thereof under martial law. There is no constitutional edict that martial law should be confined only in the particular place where the armed public uprising actually transpired,” the SC said in its ruling penned by Associate Justice Mariano del Castillo.

Del Castillo’s ponencia upheld the constitutionality of President Rodrigo Duterte’s martial law in Mindanao, with concurrences from Associate Justices Lucas Bersamin, Presbitero Velasco Jr, Jose Mendoza, Bienvenido Reyes, Diosdado Peralta, Teresita Leonardo-de Castro, Estela Perlas-Bernabe, Noel Tijam, Samuel Martires, and Francis Jardeleza.

Senior Associate Justice Antonio Carpio believes martial law should be limited only to Marawi City while Chief Justice Maria Lourdes Sereno and Associate Justice Benjamin Caguioa voted to limit martial law to the provinces of Lanao del Sur, Maguindanao, and Sulu.

Associate Justice Marvic Leonen was the lone dissenter in the High Court, siding with the petitioners’ bid to nullify Proclamation No. 216.

Armed Forces of the Philippines (AFP) chief General Eduardo Año and Philippine National Police (PNP) chief Director General Ronald dela Rosa have indicated that they would recommend to Duterte the extension of martial law in Mindanao, which is supposed to end on July 22.

Presidential prerogative

In the 82-page ruling released late Wednesday, July 5, the High Court said all issues of martial law and circumstances of its proclamation are upon Duterte’s prerogative.

The SC said the President does not need the approval of the High Court, not even Congress, to impose martial law – it’s up to him to determine that there is rebellion and to impose military rule.

“The Court, as Congress does, must thus accord the President the same leeway by not wading into the realm that is reserved exclusively by the Constitution to the Executive Department,” the SC said.

The SC also said Duterte has the power to declare martial law not only in the area where he finds rebellion to exist but also in “other areas where present hostilities are in danger of spilling over.”

“In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the range of actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions,” the SC said.

“The Constitution must have considered these limitations when it granted the President wide leeway and flexibility in determining the territorial scope of martial law. Limiting the proclamation and/or suspension to the place where there is actual rebellion would not only defeat the purpose of declaring martial law, it will make the exercise thereof ineffective and useless,” the SC added.

The High Court cited incidents related to the Marawi clashes one way or the other which occurred outside the besieged city, such as the arrest of Maute matriarch Farhana Maute in Masiu town, and even the attack of the Bangsamoro Islamic Freedom Fighters (BIFF) in Cotabato City. 

Sereno said, however, that the SC should not have given the President carte blanche, or the exclusive discretion to determine the matter.

“Validating a Mindanao-wide coverage is indeed convenient for the Court but it is not right. If, to use the words of the ponencia, the most important objective of Article VII, Section 18 is to ‘curtail the extent of the power of the President,’ then this Court miserably failed,” Sereno said in her opinion. (READ: Sereno, Carpio opinions: Watch Duterte’s martial law closely)

Probable cause enough

The Constitution says martial law may be declared in the event of a rebellion, but for the SC, Duterte does not need to be sure that there is actual rebellion; he only needs to have probable cause to believe so.

“The President only needs to convince himself that there is probable cause or evidence showing that more likely than not a rebellion was committed or is being committed. To require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers,” the SC said.

Carpio, although voting to restrict martial law to Marawi City, agreed that only probable cause is required of the President. “Probable cause is the same amount of proof required for the filing of a criminal information by the prosecutor and for the issuance of an arrest warrant by a judge,” Carpio said in his opinion.

As for the convincing factors, the SC said the President does not need to be correct but only needs to have “sufficient factual basis” for making the declaration.

“The Court does not need to satisfy itself that the President’s decision is correct, rather it only needs to determine whether the President’s decision had sufficient factual basis,” the SC said.

For majority in the SC, the inaccuracies in Duterte’s martial law report to Congress are “irrelevant” in view of the necessary haste in deciding on the imposition of military rule.

“As the President is expected to decide quickly on whether there is a need to proclaim martial law even only on the basis of intelligence reports, it is irrelevant, for purposes of the Court’s review, if subsequent events prove that the situation had not been accurately reported to him,” the SC said.

The SC also agreed that Duterte does not need the recommendation of anyone, not even his top security officials, for his proclamation to be valid.

The petitioners had cited inaccuracies in the martial law report in seeking to nullify Proclamation No. 216, mostly based on news reports that fact-checked Duterte’s report. The SC said news reports are inadmissible.

The SC also said the presence of true and accurate incidents in the report would be sufficient.

The ruling also said that Duterte, as Commander-in-Chief, and not the High Court, can “properly assess the ground conditions.”

The SC said it would be up to Duterte if he wants to disclose to the public certain information.

“He cannot be forced to divulge intelligence reports and confidential information that may prejudice the operations and the safety of the military,” the High Court said.

Vague martial law?

The Bayan group of petitioners alleged that the martial law declaration was too vague because of its inclusion of “other rebel groups.”

In fact, the military’s operational directive for martial law in Mindanao also targets communist rebels, drug syndicates, and other peace spoilers.

The petitioners’ counsel, Neri Colmenares, even showed a copy of the annex that Solicitor General Jose Calida submitted to the SC listing the BIFF, a splinter group of the Moro Islamic Liberation Front (MILF), as among the peace spoilers in the region.

For Colmenares, rebel groups outside of the Maute network are irrelevant to the case. He accused Calida of inventing facts to justify martial law.

For the SC, the vagueness doctrine only applies to cases of free speech, and martial law is not such a case.

The High Court also said the absence of clear operational guidelines does not make martial law vague. It said it is not the SC’s job anyway to determine the legality of operations when ruling on the constitutionality of martial law.

The SC said it would address questions about the legality of a martial law-related operation when raised before the High Court.

“Any act committed under the said orders in violation of the Constitution and the laws, such as criminal acts or human rights violations, should be resolved in a separate proceeding.”

Constitutional safeguards

The High Court also cited “sufficient safeguards” in the 1987 Constitution to prevent abuse of the power to declare martial law.

“The Constitution has provided sufficient safeguards against possible abuses of the Commander-in-Chief’s powers; further curtailment of presidential powers should not only be discouraged but also avoided,” the SC said.

For the SC, it is enough that the 1987 Constitution limits the basis of martial law to only rebellion, and that it imposed a 60-day expiry on the proclamation.

The High Court said the public should not be scared or biased against martial law because of the country’s experience of military rule under the late strongman Ferdinand Marcos. (READ: Martial law, the dark chapter in Philippine history)

“After all, martial law is critical and crucial to the promotion of public safety, the preservation of the nation’s sovereignty and ultimately, the survival of our country,” the SC said.

The petitioners and opposition lawmakers have expressed fears that the SC ruling may embolden Duterte to declare martial law in the entire Philippines. They cited the “creeping authoritarianism” in the country under the year-old Duterte administration. – Rappler.com