SC retains right to review martial law proclamations

Lian Buan

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SC retains right to review martial law proclamations

LeAnne Jazul

'That's the best part of the decision. The Court made it clear that it had the power to review the President's decision,' says a legal expert of the SC ruling on the petitions against martial law in Mindanao

MANILA, Philippines – In its landmark ruling on petitions against martial law in Mindanao, the Supreme Court declared that martial law proclamations are sui generis or a case of its own kind.

This means that the High Court is retaining its right over judicial review of future proclamations independent from the actions of Congress which is good news, according to lawyer and political analyst Tony La Viña.

“That’s the best part of the decision. The Court made it clear that it had the power to review the President’s decision. There is no condition for that and it is independent of  Congress,” La Viña said.

In the ponencia written by Associate Justice Mariano del Castillo, the SC ruled that “the jurisdiction of the Court is not restricted to the cases enumerated to Sections 1 and 5 of Article VIII.”

In the constitutional provision, the SC shall have jurisdiction over “cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.”

Interestingly during the oral arguments, it was Del Castillo who raised the possibility that the petitions seeking to nullify President Rodrigo Duterte’s martial law in Mindanao may not be for SC review since it is not included in the list under Article VIII.

Ruling that martial law proclamations are sui generis now means that the SC can resolve questions on martial law.

“The Court cannot simply trust blindly the President when he declares martial law or suspends the privilege of the writ,” Senior Associate Justice Antonio Carpio said. 

The High Court voted 11-3-1 on Tuesday upholding the constitutionality of Duterte’s Proclamation 216. Aside from Chief Justice Maria Lourdes Sereno and Carpio, Associate Justice Benjamin Caguioa also partially granted the petitions against the presidential proclamation, while Associate Justice Marvic Leonen was the lone dissenter.

Independent from Congress

The SC also reverses its 2012 ruling on the petitions against then President Gloria Macapagal-Arroyo’s imposition of martial law in Maguindanao in 2009.

In the 2012 ruling, the High Court said it can only come in to review a martial law proclamation “when Congress defaults in its express duty to defend the Constitution.”

In its 2017 ruling, the SC said, “By the above pronouncement, the Court willingly but unwittingly clipped its own power and surrendered the same to Congress as well as abdicated from its bounden duty to review.”

It added, “Worse, the Court considered itself just on stand-by, waiting and willing to act as a substitute in case Congress defaults.”

The SC said it was rectifying this mistake and declared that from now on, “the Court can simultaneously exercise its power of review with, and independently from, the power to revoke by Congress.” 

Martial law not a political question

When Solicitor General Jose Calida defended Proclamation 216 before the High Court, he told the Chief Justice that martial law is a matter of political question.

Sereno dismissed Calida and said martial law could no longer be branded a matter of political question.

“How are you now justifying the resurgence of the political question doctrine which to all constitutional historians and scholars, was the principal mechanism by which the Supreme Court was blamed for having unduly validated Mr Marcos’ martial law?” Sereno told Calida during the oral arguments.

This issue has gone back and forth at the High Court. In 1951, the SC said the martial law proclamation is only for the President to decide, but the Court overturned this in 1971 when it said martial law is “within the ambit of judicial review.”

In 1983, the SC under the regime of the late strongman Ferdinand Marcos backtracked anew and said martial law should not be subject to judicial inquiry.

In the 2017 majority ruling, the SC declared that the 1987 Constitution is loud and clear on allowing judicial review of the declaration of martial law and suspension of the privilege of the writ of habeas corpus.

Hierarchy of extraordinary powers

There is an order of extraordinary powers available to the President in times of need:

  1. Calling out power
  2. Power to suspend the privilege of the writ of habeas corpus
  3. Power to declare martial law

Petitioners asserted that martial law should have been the last resort, arguing before the SC that martial law does not add anything to the calling out power of the President.

In its latest ruling, the SC said that while the Court has the power to review the proclamation, that power “does not extend to calibrating the President’s decision pertaining to which extraordinary power to avail given a set of facts or conditions.”

“To do so would be tantamount to an incursion into the exclusive domain of the Executive and an infringement on the prerogative that solely, at least, initially, lies with the President,” the SC said.

This means that according to the SC, it cannot limit Duterte to try the two other powers first before resorting to martial law. He can use whichever power he wants as he sees fit, the SC said.

This adds to the leeway given by the SC to the President insofar as declaring martial law, including giving the Chief Executive the sole discretion to determine rebellion and declare martial law in the entire Philippines, if he sees necessary.

For La Viña, the discretion to choose which extraordinary power to use is something the country “can live with.”

“The basis for that is the thinking that it’s the President who knows best how to respond to a threat. One cannot start with calling out power, for example, if we are invaded by a foreign country. I think you can go straight to martial law,” La Viña said.

In their separate opinions, Chief Justice Maria Lourdes Sereno and Carpio said that Duterte must be watched closely as he exercises his power to implement martial law. Sereno said Duterte must not be allowed to broaden the use of martial law ‘”o solve other social ills.”

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.