SUMMARY: SC oral arguments on martial law in Mindanao

MANILA, Philippines – The Supreme Court (SC) has wrapped up the oral arguments on the validity of martial law in Mindanao, with the final day spent in a private session with Defense Secretary Delfin Lorenzana and Armed Forces chief General Eduardo Año.

The main question of the consolidated 3 petitions: Is there sufficient factual basis to declare martial law in Mindanao? To answer that, the High Court has to rule on 3 things:

Here is a rundown of the discussions of the SC Justices, the petitioners, and the government's lawyer, Solicitor General Jose Calida, during the oral arguments:

1. Was there rebellion in Marawi?

For Associate Justice Mariano del Castillo, the Maute group's act of raising the ISIS flag in Marawi is a clear indication of rebellion. Albay First District Representative Edcel Lagman, a petitioner, contested this and said it was nothing but "cheap propaganda" from the local terrorists that claim links with ISIS.

"They're precisely putting up their flag there to supplant the authority of the local government of their own. In effect, they're trying to remove the allegiance of Marawi City from the government," Del Castillo said.

Del Castillo's remark is favorable to the government. Calida even brought an ISIS flag to the Court to support the government's argument that the Maute group, an "ISIS-inspired" group, is trying to break away from the government and establish an autonomous province in the region.

Associate Justice Marvic Leonen wants everyone to be careful in giving prominence to the Maute group or to ISIS. For Leonen, imposing martial law might have just given terrorists the attention they want.

"Just because we know that atrocities can be committed by barbaric individuals, it does not necessarily mean that we should impose the hardest, harshest solution possible....Because if we do that, we are playing in the hands of modern-day terrorists that use social media and want to elevate themselves to stature that the world can see through social media and the media,” Leonen said.

2. Was there rebellion outside Marawi?

Senior Associate Justice Antonio Carpio gave a point-blank assessment: He sees no evidence of rebellion outside Marawi City. Carpio even told Calida that the government may be able to defend that there is rebellion in Marawi City, but not in other provinces in Mindanao.

Calida said rebellion is a conspiracy and other players might be outside Marawi, for example its financiers and coddlers. Carpio even helped Calida take his argument up a notch: What if the Maute group deployed its snipers to Manila to assassinate the country's top security officials, will that mean there's rebellion in the capital?

Calida insisted that the scenario would be a case of rebellion, but later  said, "If it's just assassination, then it's not rebellion."

"Capability does not mean rebellion, you have the intent, you have the capability, that doesn't speak of rebellion," Carpio said. He added that even if Maute terrorists escape Marawi, they can be subjected to warrantless arrest in areas  not covered by martial law because rebellion is a continuing crime.

3. Does public safety require it?

Chief Justice Maria Lourdes Sereno said that there are two grounds for a valid martial law: factual basis and necessity. Calida tried to oppose this, citing a provision in Article VII, Section 18 of the Constitution which states that the Court "may" review the factual basis of martial law. He stressed that there was no mention of necessity there.

The Chief Justice, however, pointed out to Calida that Section 18 also states "when the public safety requires it," meaning "if it's necessary." She lectured Calida that "we don't have to always repeat the same exact phrase in the following paragraph."

So, did public safety require it?

Calida stressed it did and anyone who thinks otherwise is "detached from reality" and therefore "showing symptoms" of psychosis. 

Justice Del Castillo was leaning towards the government's stance when he asked Lagman: “The military casualty count as of last Sunday is already 58 soldiers, congressman. Dead soldiers of ours. And there are 25,000 evacuees now in Iligan City. So for you the situation is still not that serious for martial law?"

For Lagman, the death toll and the evacuation all happened after martial law and therefore could not be used to justify the declaration because they are "after the fact."

"They are the aftermath of an ill-conceived declaration, your honor. So this will not in any way validate the continuance of martial law. And we personally believe that the Armed Forces of the Philippines has the capability to suppress this terrorism in Marawi City without the President imposing martial law," Lagman said.

4. Is martial law different from calling out power?

The calling out power is a constitutional authority of President Rodrigo Duterte to call out both the military and the police to respond to security threats. This is something that he has already done through Proclamation 55, declaring a state of state of national emergency on account of lawless violence following the bombing in Davao City in September 2016.

In his comment submitted to the SC, Calida claimed that the calling out power under Proclamation 55 has proven to he ineffective, prompting  Duterte to declare martial law.

During the oral arguments, justices asked Calida to differentiate the two.

Calida himself yielded there was no difference. "Technically, there's not much difference," he said.

Carpio said "it is hard to find a legal difference" between the two. In pressing the government counsel to differentiate martial law and calling out power, Calida said martial law provides an exclamation point to the calling out power – to amplify the warning to terrorists – though Carpio said it appears terrorists still did not listen.

To further prove his point, Calida described martial law as "calling out powers on steroids" which eventually backfired.

Sereno told Calida that she was "illuminated" by Calida's description of martial law and cited the side effects of steroid use on human beings. She said steroids only make it appear that one is healed, but actually does not cure the illness. Sereno said authorities have to be careful as not to lead soldiers to believe that under martial law, they can perform their powers as if they are on steroids. Calida took back his statement and told the Chief Justice, "Don't take that seriously."

5. Is the operational guideline for martial law clear?

Leonen said it is not. "When I look at martial law, there seems to be no operational guideline except its limits," Leonen said.

Leonen also expressed his concerns about the authorization of warrantless arrests outside Mindanao. 

This issue is a little bit tricky. While the suspension of the privilege of the writ of habeas corpus is confined only to Mindanao, a person suspected or charged of rebellion can be arrested without a warrant anywhere, since rebellion is a continuing offense. 

The question is: If rebels can be arrested without warrant anywhere, why is there fear that martial law would expand outside Mindanao?

For Leonen, all concerns would be addressed if only there was a clear operational guideline.  "Martial law is not simply a declaration, martial law has certain real effects. And if there's no guideline and it's just a broad declaration, wouldn't you say that it may be difficult for us to assess the sufficiency of the facts in relation to what is needed by the President?" Leonen said.

For Sereno, clear martial law guidelines would also protect the soldiers who are on the front lines. The Chief Justice raised the possibility of the army finding its members in legal trouble should martial law be invalidated.

"They are dying, their lives being given up, heroic acts being performed, and they do not know the legal conundrum they might face should this Court fail to sufficiently outline the legal framework for which martial law must be administered in this country," Sereno said.

6. Who has burden of proof?

For Calida, the petitioners carried this burden because they alleged that there was no factual basis for the declaration of martial law. Associate Justices Presbitero Velasco Jr and Lucas Bersamin grilled the petitioners on this issue.

"You don't tell us the facts you want to be put [in Duterte's martial law report to Congress]. You know this is a passive institution, we cannot go out like the NBI (National Bureau of Investigation) or the police to gather the facts. We are not in that business," Bersamin told Ephraim Cortez, counsel for the militant group of petitioners.

"You have only made a very bare assertion that there is no sufficient or actual basis, and this, to me, is not proof at all," Velasco added.

Lawyer Marlon Manuel of the Marawi group of petitioners told Rappler that the Constitution provides a check and balance mechanism that authorizes the SC to compel key government officials, in a procedure that the justices themselves would decide.

Though Calida said the burden of proof is not on the government, the SC still called to Court Lorenzana and Año – martial law administrator and implementer, respectively – though they agreed to a private briefing of the top security officials.

7. Should we presume good faith on the part of government?

Bersamin believes we should. Getting Cortez to agree that the SC should be trusted to make the call whether martial law was sufficient, Bersamin said, "You leave that to the good judgment of the court, as you would leave the proclamation of martial law to the good judgment of the President."

This issue came up numerous times during the oral arguments, and at one point, riled Sereno to draw comparisons between Duterte's martial law and that of the late strongman Ferdinand Marcos.

When Sereno was pressing the question, Calida said whether Duterte had sufficient basis to declare martial law was a political question since the Chief Executive was given "full discretion" to impose it.

Sereno told Calida that invoking the political question doctrine in terms of the martial law declaration in Mindanao raised the specter of Marcos' martial law. She recalled that it was the "principal mechanism by which the Supreme Court was blamed for having unduly validated Mr Marcos' martial law."

To this, Calida assured the Chief Justice, "One thing I can assure you Your Honor, President Duterte is not President Marcos."

8. Was there intelligence failure?

“It’s a total failure of intelligence....Why did it have to reach this point when practically the military was taken by surprise?” Del Castillo asked Calida. Calida answered by saying that intelligence gathering is not perfect.

In his comment submitted to the SC, Calida revealed that the military knew as early as April that the Maute group had deployed its members to carry out attacks in the region, particularly Marawi City. 

Major General Rolando Bautista, the ground commander who ordered the raid on May 23, told Rappler on May 25 they received the inteligence inforomation "two to 3 weeks" prior. Bautista explained that they were expecting to see the Maute brothers but were surprised when they saw Abu Sayyaf leader Isnilon Hapilon, prompting the military pursuit.

Such security matters were perhaps tackled during the closed-door interpellation on the last day of the oral arguments, but Lagman refused to say whether there was something said in the meeting that raised questions about the declaration. Lagman was the only petitioner allowed to join the private briefing.

9. Should we fear martial law?

Del Castillo said no.

"Martial law will only be with us for 60 days, assuming that he [Duterte] won’t lift the proclamation earlier. With all the safeguards, I don’t know why you are so worried," Del Castillo said.

For his part, Carpio said the people should know that martial law does not give the President any "new powers."

"We better educate our people that martial law really does not give the President any new powers that he does not already possess before martial law and that there's nothing to fear," Carpio said.

Though the Senior Associate Justice said this, he took issue with General Order No. 1. "I saw in the general order that they are threatening media. I think that will not help," he said.

Carpio was referring to a provision in General Order No. 1 of the declaration: "Media practitioners are requested to exercise prudence in the performance of their duties, so as not to compromise security and safety of the Armed Forces and law enforcement personnel, and enable them to effectively discharge their duties and functions under this order."

Leonen also pointed out this issue, as he asked Lagman whether that provision can be gleaned as trying to control the media. Addressing this concern, Leonen repeated his stance that there's a need to clarify the guidelines.

The Supreme Court will issue its decision on or before July 5. – 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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