Monitoring Negros: What rulings say about NPA and martial law

MANILA, Philippines – Is a new martial law declaration – one national in scope – forthcoming?

The spate of killings in Negros Oriental fueled new rhetoric from Malacañang to declare martial law in Negros Island.

"He can call the Armed Forces to declare lawless violence. He can declare martial law," Presidential Spokesperson Salvador Panelo said on Thursday, August 1, when asked about President Rodrigo Duterte's  use of "emergency powers" to quell violence in Negros, where 21 people were killed in just over a week.

On Friday, August 2, Justice Secretary Menardo Guevarra cited the constitutional requirements of a martial law declaration.

"It depends on the constitutional requirements before a declaration of martial law is met. What are these? The existence of rebellion, or state of invasion and when public interest requires it," Guevarra said.

But going by the 4 times that the Supreme Court (SC) upheld President Rodrigo Duterte's martial law in Mindanao – the initial declaration, followed by 3 extensions – the administration has a wide opening to find legal basis for another martial law declaration.

Let's take a look at the rulings.

NPA and martial law

First, it has to be established that Malacañang is blanketly attributing the situation to the New People's Army, the armed wing of the Communist Party of the Philippines, even if the Central Visayas police chief had asked the public to refrain from linking all the killings to the NPA.

In explaining Duterte's plan to use his emergency powers in Negros, Panelo said on Thursday: "The communist rebels have exploited the land unrest and turned the province into a quasi-state. They have arbitrarily chosen who will own the lands subject of the controversies surrounding them."

Since the declaration of martial law in Mindanao in May 2017, the Duterte administration has always included communist rebels among its grounds for the move, even if  the declaration was specifically  addressed to the siege of ISIS-allied local terrorists in Marawi City.

In February 2018, when the SC upheld the second extension of martial law, it said: “The NPA's 'intensified' insurgence clearly bears a significant impact on the security of Mindanao and the safety of its people, which were the very reasons for the martial law proclamation and its initial extension."

Retired justice Noel Tijam penned that ruling.

This prompted dissenting justice Benjamin Caguioa to warn of  "perpetual martial law."

“This precedent dangerously supports the theoretical possibility of perpetual martial law. This precedent dangerously suggests a perpetual violation of people's constitutional rights,” Caguioa said.

"In this scenario espoused by the ponencia, violent attacks by different armed groups could easily form the basis of an endless chain of extensions, so long as there are 'overlaps' in the attacks," he added.

Presidential discretion

Not only has it upheld the NPA conflict as a justifiable reason to declare martial law, the High Court has also consistently upheld presidential discretion in proclaiming military rule.

In the first-ever ruling, the Court basically empowered Duterte to declare national martial law based only on his sole discretion.

"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 retired justice Mariano del Castillo.

In March 2019, the Court upheld  Mindanao martial law for the fourth time, even if the government has not filed a single rebellion charge since 2017 when martial law was proclaimed.

Violence reports were also inaccurate, mixing attacks of communist rebels with those of terrorists, and sometimes even with ordinary crimes rooted in community disputes.

But the ruling penned by Associate Justice Rosmari Carandang further empowered presidential discretion.

“We must not fall into or be tempted to substitute our own judgment to that of the People's President and the People's representatives. We must not forget that the Constitution has given us separate and quite distinct roles to fill up in our respective branches of government,” said the ruling.

In layman's term, as articulated by no less than Chief Justice Lucas Bersamin: “Whether that information is true or not is irrelevant. If there was false information and the President did not know it but nonetheless acted upon it, the theory is, it is still within the competence of the President to make a decision on that."

Investigation

Guevarra ordered the National Bureau of Investigation (NBI) to probe some of the killings in Negros, but the justice secretary said that if only to study the possibility of declaring martial law, there would be an overarching investigation that could connect the killings to each other.

"They are studying to consolidate in the basis of declaring martial law," he said.

Guevarra pointed out that even without martial law, Proclamation No.55 or a state of national emergency is still in effect.

Duterte issued that proclamation in September 2016 after violent attacks by the Abu Sayyaf and the Davao City blast that killed 14 people and injured over 60 others.

"If there is no rebellion there, no invasion there, so the President can make use of the other proclamation declaring a state of emergency," said Guevarra, referring to Proclamation No. 55. – 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.

image