MANILA, Philippines – The recent Supreme Court ruling that upheld the constitutionality of President Rodrigo Duterte’s re-extension of martial law in Mindanao “enables the rise of an emboldened authoritarian,” Associate Justice Marvic Leonen said in a strongly worded dissenting opinion.
“Contrary to the text and spirit of the Constitution, the decision in this case provides the environment that enables the rise of an emboldened authoritarian. This is far from the oath to the Constitution that I have taken. I, therefore, dissent,” Leonen said.
The Supreme Court, by a vote of 10-5, ruled that there was sufficient factual basis for the President, and Congress, to re-extend the martial law in Mindanao to another year or until the end of 2018.
Leonen said the ruling “aligns us towards the same dangerous path” as when the Supreme Court, in the 1970s, upheld martial law under the late strongman Ferdinand Marcos.
“Regardless of the motives of the justices then, it was a Court that was complicit to the suffering or our people. It was a Court that degenerated into a willing pawn diminished by its fear of the impatience of a dictator. The majority’s decision in this case aligns us towards the same dangerous path,” Leonen said.
Associate Justice Noel Tijam, the ponente of the majority ruling, wrote in the majority ruling that there is no “necessity to impose tests on the choice and manner of the President’s exercise of military powers.”
Tijam was referring to the proportionality test under which, the situation must be proven to be so extreme it demands extraordinary powers such as martial law. (READ: NPA conflict may be used as ground for ‘perpetual martial law’)
Tijam said, “The determination of which among the constitutionally given military powers should be exercised in a given set of actual circumstances is a prerogative of the President.”
The wide deference given to the President is, for Leonen, a “reincarnation” of the Supreme Court ruling that allowed martial law under Marcos – the dark chapter in Philippine history – to happen.
For the younger generation, Leonen’s dissenting opinion provides a throwback lesson on the Supreme Court’s historical role in Marcos’ martial rule.
The 1983 Supreme Court, under the Marcos era, reverted back to the rule that the declaration of martial law is political in nature and is not under the judicial review powers of the Court.
The 1987 Constitution changed that, and returned to the Court the power of judicial review. In fact, in its July 2017 ruling in the first challenge to martial law in Mindanao, the Supreme Court retained that power.
But Leonen said that by saying that the Supreme Court must have only a “deferential factual review is nothing but a reincarnation of the political question doctrine similar to that in Aquino v. Enrile and Morales v. Enrile during the darker days of martial law declared by Ferdinand E. Marcos.”
“This is not what we have learned from history. It is not what the Constitution allows. Respectfully and in conscience, I cannot agree,” Leonen said.
In his interpellation during the oral arguments, Leonen pointed out that Esmail Sheikh Abdulmalik aka Commander Turaifie “is history.”
Turaifie, who leads a faction of the Bangsamoro Islamic Freedom Fighters (BIFF), was among the reasons Duterte cited in the request for a re-extension of martial law.
Military sources also confirmed in several Rappler interviews that Turaifie is a low-level operative.
On the ISIS-inspired Maute rebels, Leonen said that the military’s own statistics “should be enough to cause serious reflection.”
The military said that of the 537 members of the group, 400 are new recruits. For starters, Leonen said there should have been a clear basis for such an accurate count.
“If we grant the exact number to be accurate, then it would also be reasonable to conclude that law enforcers know who they are and where they are already located, and therefore, could fashion operations that would interdict or disrupt their activities,” Leonen said.
He added, “Again, this hardly is a decent figure that will support an extended declaration of martial law and a suspension of the writ of habeas corpus throughout the entire Mindanao region, and for a period of one year.”
Prior to his appointment to the SC, Leonen was the chief peace negotiator of the previous administration in talks with the Moro Islamic Liberation Front (MILF), seen then as key to ending decades of conflict in Mindanao.
Leonen said that the government’s portrayal of the conflict in Mindanao and its justification for martial rule was very misleading.
“It erodes this Court’s role as our society’s legal conscience. It misleads our people that the solution to the problems of Mindanao can be solved principally with the determined use of force. It is a path to disempowerment,” Leonen said.
Leonen lamented that both Congress and the Supreme Court accepted the facts given to them by the executive “without any basis other than their assertion.”
“This is hardly the kind of scrutiny that the Constitution requires when it states that ‘sufficiency in the factual basis for the declaration ofmartial law,’” Leonen said.
Leonen maintained his position that there was no actual case of rebellion in Mindanao, and that an imminent threat of ISIS-inspired group is not a constitutional basis to declare martial law in the region.
Leonen also said that the government arsenal had oversimplified the conflict in Mindanao, disregarding reports and analysis of foremost authorities on extremism and terrorism.
Leonen also said Congress committed grave abuse of discretion when it limited to only 3 minutes the time given to lawmakers to interpellate security officials defending the imposition of martial law in Mindanao.
But Tijam said the Supreme Court cannot review the rules implemented by Congress when it conducted its joint session.
Even so, Leonen said that if Congress could not scrutinize the facts, then at the very least, the Supreme Court should have done so.
“Congress’ deliberations, or manifest lack thereof, should be enough to encourage this Court to approach this case with more rigor and less deference,” Leonen said.
Leonen reminded his colleagues on the bench: “Judicial review, properly invoked, is not a privilege of this Court. It is its sworn duty.” – Rappler.com
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