MANILA, Philippines (3rd UPDATE) – The Supreme Court has approved President Rodrigo Duterte’s martial law not once, not twice, but thrice, and in all times gave the President almost absolute discretion to proclaim military rule.

What are the new issues up for discussion at the High Court when it holds oral arguments on Tuesday, January 29, on the petition challenging the validity of the 3rd extension of martial law in Mindanao? This would effectively stretch martial law over the island up to yearend 2019.

The petition filed by the House opposition bloc led by Albay 1st District Representative Edcel Lagman alleges that the Duterte government made “cut and paste” justifications for the new extension.

A supplemental petition from the Makabayan bloc was filed earlier on Wednesday, January 16, saying Duterte’s report to Congress “merely illustrates in general terms the continuing rebellion in Mindanao.”

The answer filed on Tuesday, January 15, by Solicitor General Jose Calida repeats the government’s defense, which had already been affirmed by the Supreme Court.

On Sunday, January 27, the Jolo Cathedral in Sulu was hit by two consecutive bomb attacks that killed at least 20, and hurt 111.

Malacañang said on Monday, January 28, that the Jolo attacks are “more reason martial law should be in place.”

Absolute discretion

This and more point to an uphill battle ahead for petitioners.

In the two crucial favorable decisions of the Supreme Court on the Mindanao martial law, one in July 2017 and the other in February 2018, the majority of the en banc made these rulings that would be difficult for challengers to overcome:

1. “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.”
2. “The Constitution grants him (the president) the prerogative whether to put the entire Philippines or any part thereof under martial law.”
3. “The Constitution is silent on how many times Congress may extend a proclamation of martial law or the suspension of the privilege of the writ of habeas corpus.”

New issues

On the side of the government, Calida said new 2018 data justifies the new extension to yearend 2019: 4 bombing attacks in Lamitan, Basilan; Isulan, Sultan Kudarat; and Barangay Apopong, General Santos City. Sunday’s Jolo bombing could be added to this list.

Calida also cited kidnapping incidents by “major Abu Sayyaf factions” in Sulu, as well as “at least 342 violent incidents that were perpetrated by the Communist Terrorist Groups.”

Petitioners allege that these “mere acts of lawlessness and terrorism by so-called remnants of terrorist groups and by the communist insurgents can all be subdued and suppressed under the calling out power of the President.”

“He undertook to submit to the Congress a more detailed report on the subsisting rebellion in Mindanao, which he never did,” said the petition.

A third petition filed by human rights lawyers led by constitutionalist Christian Monsod pleads the Supreme Court to do an independent investigation into threats in Mindanao and “go beyond just accepting what the Executive branch submits to it.”

The 17th Congress voted 235-28-1 on December 12 to reextend President Rodrigo Duterte’s martial law in Mindanao to yearend 2019, the 3rd extension which would stretch the proclamation to two years and 7 months if it pushes through.

The Supreme Court, after its en banc session on Tuesday, January 15, impleaded Congress in the petition and required the legislative branch to also answer the petition, and not just Calida.

“The respondents are also required to submit on or before 21 January 2019 all documents and evidence which may be relevant to the case,” the SC said.

Covered by judicial review?

Martial Law proclamations are argued to be a political question, and one that is beyond the scope of the judicial review of the Court.

Although it has given Duterte wide discretions in proclaiming martial law, the Supreme Court did retain its right to review martial law proclamations.

“The Court can simultaneously exercise its power of review with, and independently from, the power to revoke by Congress,” the SC categorically declared in July 2017.

But – and this is a big but – in its decision in February 2018, the Supreme Court gave Congress the prerogative to determine if there’s a need for extension.

“(The Constitution) does not fix a period for the duration of any extension of a proclamation or suspension but expressly leaves the matter to Congress – for a period to be determined by Congress,” said the SC in that decision.

This gives both the executive and legislative branches a huge upper hand going into the oral arguments.

As Calida said in his answer, “It is settled that the manner in which Congress deliberated on the President’s request for extension is not subject to judicial review.”

New views?

The past two decisions led dissenting justice Marvic Leonen to say that the Court was enabling “the rise of an emboldened authoritarian.”

With Maria Lourdes Sereno gone, there is one less expected dissenter. Leonen, Senior Associate Justice Antonio Carpio, and Associate Justice Benjamin Caguioa were the constant dissenters in this case.

But perhaps what the petitioners can hope for are new views.

If there’s one thing that the history of the Supreme Court has taught us – nothing is ever final, especially when new justices come along.

In fact, in the February 2018 decision, Associate Justice Francis Jardeleza went from being part of the majority to being a dissenter.

Duterte’s new appointees, Associate Justices Jose Reyes Jr, Ramon Paul Hernando, and Rosmari Carandang, and possibly another one to replace Associate Justice Noel Tijam, would present new views, and may be considered swing votes.

So in the bench of 14, there are 6 previous concurrences, 4 previous dissents, and 3 (possibly 4) votes up for grabs. (Currently there are only 13 justices on the Bench, as Duterte is yet to name Tijam’s replacement. The application for Chief Justice Lucas Bersamin’s replacement as associate justice has not started.)

Carandang said in an interview in 2017 that she believes Congress should have convened to approve the proclamation, not just to revoke or extend it, contrary to the majority decision of the Supreme Court that year.

Oral arguments have been set for January 29 and 30. – Rappler.com