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SC’s Bersamin pushes for broader criteria to declare martial law

MANILA, Philippines – Supreme Court (SC) Associate Justice Lucas Bersamin is ahead of the game, pushing as early as now for a constitution that broadens the criteria for proclaiming martial law in order to address present-day threats to safety.

“Will you be adverse to the idea I am proposing, you can use martial law also to repel or quell such kind of threats," said Bersamin during the first round of oral arguments at the SC on petitions seeking to stop the re-extension of martial law in Mindanao. Bersamin gave his 'proposal' because he said:  "I don’t think (the Constitution) will survive long after because there is a threat in Congress to revise it.”

When he made his 'proposal,' Bersamin was interpellating no less than Christian Monsod, one of the drafters of the 1987 constitution.

Bersamin said the current constitution is ‘emasculated’ because it is not ‘responsive to the need we now have.’

Limiting?

The issue in these oral arguments is whether President Rodrigo Duterte has sufficient factual basis to declare martial law. Under the constitution, it is merited only when there is an actual case of rebellion, invasion, and if public safety requires it.

For Bersamin, that definition is too limiting.

“You did not anticipate all dangers…..other than invasion or rebellion, how could the Republic survive if there was another kind of threat worse than invasion or rebellion?” Bersamin asked.

When Monsod asked for examples of other dangers, Bersamin said drone attacks.

“A drone attack doesn’t involve taking over the government,” Monsod said.

Bersamin answered: “Oh? I watched so many movies, like White House Has Fallen, London Has Fallen, these are very terrifying realities that could happen in a few years time, yet you crafted a constitution that constricted the use of the ultimate power. So what do we do when these threats  become reality?”

Narrow door

Monsod stood his ground that the intent of the drafter was precisely to limit the President. The 1987 Constitution was a response to the almost 10 years martial rule of Ferdinand Marcos, marred by human rights violations that marked it as one of the darkest periods in Philippine history.

“That is why i said that the SC must be very careful when it opens that narrow door, once there is martial law, literally, the executive can do anything in that theatre of war. The only recourse by which a citizen can is protest and do something about it afterwards, when the damages and injuries and violations of human rights will have already happened,” Monsod said.

Bersamin claims there is no threat of authoritarianism in present day.

“I really want this to be a living constitution, not constricted to the conditions that made you craft it to react to a regime that you did not like,” Bersamin said.

Bersamin was among the justices who approved the hero’s burial for Marcos. During the first oral arguments, the justice said the Filipinos should trust Duterte with martial law.

Bersamin also joined the majority in the July 2017 ruling that gave Duterte great leeway in proclaiming martial law, including giving him the prerogative to declare it nationwide if he sees the need to. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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