Nullify martial law? Your guide to the SC oral arguments

MANILA, Philippines – The Supreme Court (SC) will begin on Tuesday, June 13, its 3-day oral arguments on 3 consolidated petitions, which seek to nullify President Rodrigo Duterte's Proclamation Number 216 or martial law in Mindanao. (READ: Questions you need to ask about martial law in Mindanao)

Defending Duterte will be Solicitor General Jose Calida, who will go up against 3 groups of petitioners: minority lawmakers led by Albay 1st District Representative Edcel Lagman, activist groups led by Lumad leader Eufemia Cullamat, and Marawi City residents led by Mindanao State University (MSU) professor Norkaya Mohamad.

Based on their petitions and Calida's consolidated comments, Rappler compiles the main arguments and counter-arguments for your guide during the debates that will last until Thursday, June 15.

1. Marawi siege: Rebellion or not? 

Section 18, Article VII, of the Constitution says: "In case of invasion or rebellion, when the public safety requires it, [the President] may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law."

Rebellion, meanwhile, is defined under the Revised Penal Code as "a crime committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof."

PETITIONERS: The crisis in Marawi is just a "pretended existence of rebellion and/or invasion." They say that what happened in the city is not an attempt to "remove from the allegiance" to the Republic but just an armed resistance to protect leader Isnilon Hapilon from death or capture.

CALIDA: The circumstances of the Marawi crisis reject the assertion that the siege was just meant to protect Hapilon. The siege was "intended to be the climax of a clear and actual takeover of Philippine territory by means of a violent uprising against the government."

According to military information, the Maute Group had planned to raze Marawi City during Ramadan and it was to be a precursor to establishing an Islamic State (ISIS) province in Mindanao. "It is a strategic and well-coordinated attack to overthrow the present government and establish a wilayah in Mindanao."

2. Is martial law necessary?

Rebellion's definition under the law includes the qualification that the uprising to "remove from the allegiance to the Philippine government" also "deprives the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives."

PETITIONERS: The crisis has not reached an extent that public safety has already required the declaration of martial law. It is precisely why the words "imminent danger" were deleted from the provision in the Constitution to make sure that martial law is declared only in the event of an actual rebellion, not just the danger of it. It was a constitutional safeguard to prevent presidents from abusing their martial law powers.

CALIDA: Under the Constitution, rebellion is already existing when the armed uprising "deprives the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives." 

That is the case, for example, with the release of over 100 inmates from the Marawi City jail in the first few days of the clashes.  

The Bureau of Jail Management and Penology exercises supervision or control over jails, the BJMP is under the Department of the Interior and Local Government, and the DILG is under Duterte. Because the 107 inmates are free, the BJMP no longer has custody of these inmates, which ultimately means the incident "resulted in a deprivation of President Duterte's power to keep these prisoners in custody."

"Aside from the effects of the attacks on the civilian population, the strong combat capability, and seemingly limitless firepower and other resources that ISIS-inspired rebels have displayed in their attacks show that the interest of public safety required the issuance of Proclamation Number 216." 

3.  Martial law should be last resort.

PETITIONERS: Martial law "is an instrument of last resort." If a less severe remedy exists, the government must do that first. "Only when there is a showing that the situation cannot be contained unless martial law is declared, can the use of such extraordinary power of the President be justifiable," the Mohamad petition says. One of the counsels in the Mohamad petition is constitutionalist Christian Monsod.

CALIDA: Yes, that it is the last resort, according to Proclamation 55, which Duterte issued September 2016 when Davao City was rocked by bombing. It was a call to the military to prevent or suppress lawless violence in Mindanao.

But this "proved ineffective" because the "ISIS-inspired terror groups continued to wreak havoc in Mindanao – kidnapping and bombing incidents, murder, and attacks against government operatives happened in Basilan, Maguindanao, Tawi-Tawi and Sulu, among others, in the period between November 2016 and April 2017."

Martial law, therefore, was necessary by that time. 

4. Did Duterte act on his own?

PETITIONERS: The declaration was flawed because it did not come from the recommendation of Duterte's security officials, such as Defense Secretary Delfin Lorenzana, now designated martial law administrator.

CALIDA: Duterte does not need any recommendation to make his declaration valid. "The Constitution bestows the full authority to proclaim martial law upon the President and no one else, and without need for the prior approval of any other public official, much less his alter ego."

"Any recommendation given by officers of the military, at most, would merely be advisory and can be disregarded by the President, their Commander-in-Chief. After all, civilian authority, embodied through the President's position as Commander-in-Chief, is at all times supreme over the military." 

5. Was martial law based on fake news?

Inconsistencies have been found in the incidents cited by Duterte in the martial law report he submitted to Congress on May 25, or within 48 hours of his declaration.  

PETITIONERS: According to several news reports, hospital officials denied that the Amai Pakpak Medical Center was taken over by terrorists, its employees held hostage. The Philippine Star did a fact-check, which points out that while Duterte said in his report that the Senator Ninoy Aquino Foundation College was burned by terrorists night of May 23, witnesses on the ground saw the school intact as of May 24. The same report also said that while Duterte said the Land Bank branch in Marawi was ransacked, the bank management clarified that only their vehicle – which was empty – was stolen by terrorists.

CALIDA: (Calida did not provide clarifications for the claims in the martial law report and, in fact, repeated them in the comment he submitted to the SC. His contention, however, is that the petitioners' arguments are invalid because they only used news reports to back up their claims.)

"News articles amount to 'hearsay evidence, twice removed,' and are therefore not only inadmissible, but are without any probative value at all whether objected to or not."

6. Should Congress have convened?

Section 18, Article VII, of the Constitution: "The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President."

PETITIONERS: "There is even greater necessity for the Court to rule upon the sufficiency of the factual basis for the proclamation where there has been no congressional action," says the Mohamad petition.

CALIDA: The separate resolutions of the lower and upper chambers are enough, and are considered the representation of the will of the people.

"In the case of President Duterte's Proclamation Number 216, the two houses of Congress expressed their support for the necessity of the issuance. The declaration of martial law, therefore, carries with it the imprimatur of the Filipino people."

The SC's oral arguments will run Tuesday (June 13), Wednesday (June 14), up to Thursday (June 15), beginning at 10 am on all days. – 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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