High noon in the SC: Is martial law legal?

Two weeks have passed since the first day of the Supreme Court oral arguments on the consolidated petitions to nullify President Rodrigo Duterte’s declaration of martial law. Both the petitioners and the respondents have made compelling arguments and have answered the questions of the Supreme Court well.

Memorandums will be submitted soon, if not yet done, and the Court will render its historic decision by July 3, 2017, at the latest.

It is clear that no matter whatever verdict the Supreme Court may issue, history has been made.

The decision on this petition, as lawyer Marlon Manuel has said, will not only be for the benefit of the petitioners, and not only for this generation, but also for the next. To which, Chief Justice Maria Lourdes Sereno agreed and urged the other justices of the Supreme Court to take pains in deciding this petition since it is not the “simple job of the court to simply say that Marawi is under siege,” or that martial law legally exists. Rather, their job “is to give fealty to the words of the Constitution when martial law is declared,” because “if we [the Supreme Court] do not rule correctly and do not provide the guidelines, then it is possible that this Court will only add to the confusion rather than [to] clarify a situation. And it is only a voice of clarity and sobriety that is most necessary in times of emergency.” In the decision of the Court, the 1987 Constitution will come alive.

There are 3 groups of petitioners in this case: minority lawmakers led by Albay 1st District Representative Edcel Lagman who fielded most of the questions of the justices in the orals; activist groups represented by lawyer Ephraim Cortez; and 4 women from Marawi City represented by Manuel. I am glad that we had this last group of petitioners who are truly material parties-in-interest, their lives, properties, and communities being at stake in what is happening in Marawi.

Aside from seeking the nullification of martial law in Mindanao, all the petitioners, especially the women from Marawi, emphasized the interconnectedness of their petitions with human rights. Throughout their arguments, the petitioners contended that martial law will inevitably result in violation of human rights. To this, Justice Noel Tijam asked, “Whose human rights are you seeking to protect?” Congressman Lagman answered, “The people’s human rights, Your Honor. Particularly, the residents of Marawi City.” In the oral arguments, representing President Duterte was Solicitor General Jose Calida.

Arguments of petitioner

The petitioners argue that the Supreme Court should nullify President Duterte’s declaration of martial law in Mindanao for lack of sufficient factual basis.

They argue that, first off, what is happening in Marawi City is not a case of actual rebellion. According to the petitioners, the rebellion referred to in Section 18, Article VI of the 1987 Constitution should be read in relation to Article 134 of the Revised Penal Code as this is the specific provision that President Duterte makes mention of in both Proclamation No. 216 and in his report to Congress. Also, they argue that it is this definition that the 1987 Constitutional Commission had in mind when they were referring to rebellion in this provision. Thus, in order to constitute actual rebellion, Art. 134 of the RPC provides that there must first be a rising or taking up of arms against the Government.

Second, the purpose of such actions is to remove allegiance of the territory of the Philippines, or any part thereof, to said Government or its laws. Here, the petitioners contend that the acts of violence happening in Marawi City lack that essential element of culpable purpose. The acts of taking up of arms against the government was only made in an attempt to rescue the Maute group’s leader, and not to remove Marawi from its allegiance to the Philippine government. Without such purpose, the petitioners argue that there can be no actual rebellion, and therefore, there can be no valid declaration of martial law as the same is required by the Constitution.

The petitioners also reason that, not only must there be actual rebellion, but also that public safety must require the declaration of martial law. They urge the Supreme Court to interpret Section 18, Article VI of the 1987 Constitution, not in two distinct modes, but in a continuum. In that, the Supreme Court is to not just review the sufficiency of the factual basis of the declaration of martial law, but to also exact whether public safety necessitates such declaration. Chief Justice Sereno has referred to this as the “requirement of public necessity.” The petitioners introduced to the Court several facts and statements that directly contradict statements in both Proclamation No. 216 and the President’s report to Congress. These facts, according to the petitioners, as introduced by them, should be taken as the true and accurate facts, and which if taken together with the undisputed facts, would show that, despite the acts of violence in Marawi City, the same did not satisfy the “requirement of public necessity” so as to constitute a valid declaration of martial law.

Despite their position, the petitioners clearly showed their concern for the people of Marawi City and the acts of violence happening in their community. However, they claim that the President does not have discretion in choosing between his 3 emergency powers. The President’s power to call out the Armed Forces of the Philippines (AFP), to suspend the writ of habeas corpus, and to declare martial law in the entire Philippines or any part thereof must be commensurate to the acts of invasion or rebellion actually happening in said territory and to the requirement of public safety.

The petitioners also argue that martial law is “an instrument of last resort.” Thus, prior to declaring martial law, the President must first exhaust all of his other powers before finally resulting to the exercise of his martial law emergency power. Thus, it is the position of the petitioners that the President should have first called out the AFP, then suspended the writ of habeas corpus. Should the invasion or rebellion persist and should public safety require it, it is then and only then that the President may declare martial law. The petitioners argue that the facts do not show such succession of powers. Rather, it is their position that the President directly resorted to the declaration of martial law in Mindanao without first exhausting all his other emergency powers.

In their interpellations, the petitioners focused on their argument that there was no actual rebellion happening in Marawi City. This may be a difficult statement to support because of the direct contradiction of what is currently being portrayed in different media outlets. Rather, what the petitioners should have emphasized instead is the lack of factual basis for declaring martial law for the rest of Mindanao. Though this argument was mentioned in passing during the arguments of the petitioners, it was more extensively discussed in the interpellations of the Solicitor General. In fact, it was not even the petitioners who placed the burden on the government to show factual basis for the declaration of martial law in the entire Mindanao, but it was the Supreme Court Justices who questioned this themselves. Thus, the missed opportunity (so to speak) as their petition would have been stronger if they had argued more on this matter.

Arguments of the Solicitor General

On behalf of the government, Solicitor General Jose Calida maintains that all the elements of actual rebellion was present at the time President Duterte issued Proclamation No. 216.

The Solicitor General points out that the petitioners themselves concede to the Maute group’s acts of taking up arms against the government. He also contends that, contrary to what the petitioners have presented, there is a culpable purpose to remove Marawi City, and, ultimately, the entire Mindanao, from its allegiance to the Philippine government. The Solicitor General explains to the Court that the intelligence data gathered showed that the Maute group had a long-standing plan to take over Marawi City, and use said territory as a starting point for takeover of the entire Mindanao. He continues to explain that all of the acts of the Maute group was in an aim to ultimately establish an Islamic State in Mindanao. Thus, effectively preventing all government functions in the entire Mindanao and removing the allegiance of the aforementioned territory to the Philippine government.

In response to the argument that the other emergency powers must first be exhausted, Solicitor General Calida claims that the President had, in fact, exhausted the same. According to Calida, when  President Duterte issued Proclamation No. 55 Declaring a State of National Emergency on Account of Lawless Violence in Mindanao, this was an exercise of his power to call out the Armed Forces of the Philippines. Because the acts of violence continued despite the calling out of the AFP, Solicitor General Calida insisted that Duterte validly declared martial law after having exhausted all other powers.

On the matter of public necessity and martial law in the rest of Mindanao, Chief Justice Sereno asked why then was there a necessity to declare martial law in the entire Mindanao, assuming the factual basis of the proclamation was indeed valid and sufficient. Here, Sereno emphasized once again the requirement of public necessity to be interpreted with the requirement of actual rebellion in order to justify a declaration of martial law. In addition to this, Justice Antonio Carpio explained that the general allegation in the President’s declaration of martial law and report to the Congress talks about capability, not actual rebellion. The whereas clause provides, “WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur, but also in other parts of Mindano. (emphasis supplied)” The Supreme Court maintains that this statement only speaks of capability, and that what the Constitution requires is actual rebellion, not mere capability to commit acts of rebellion. Here, a clear distinction is made between the two. The Court thus requested that the Solicitor General include in memorandum of the respondents the factual basis for declaring martial law in the entire Mindanao. We can expect that this will be another important point of discussion in the upcoming deliberations.

Lastly, Calida ultimately argues that the actions of the President enjoy a presumption of validity and regularity, and that the power to declare martial law is inherent in President as Commander-in-Chief. Thus, it is his discretion to declare the same. The Solicitor General further opines that it can only be reviewed if there is grave abuse of discretion amounting to a lack or excess of jurisdiction. Otherwise, due deference should be given as the declaration of martial law is a political question that should not be looked into by way of review. To which, Chief Justice Sereno asked to clarify the same.

This question on the political question doctrine may be something that will be further discussed in the deliberations as it is this same doctrine that was used by the Supreme Court to unduly validate the Marcos martial law. According to the Chief Justice, this political question has already been discredited. However, Solicitor General Calida raises this doctrine again as reason to validate the martial law declaration of President Duterte. Thus, this defense of the Solicitor General has prompted further discussion on the matter.

Martial law vs calling out power

The Solicitor General was also asked to distinguish between the calling out power and the martial law emergency power of the President. Specifically, Justice Del Castillo asked, “What is in the power of martial law that is not in the calling out power of the President?” A lengthy discussion thereafter ensued. Calida said that “martial law is the calling out powers on steroids.” On this statement, Chief Justice Sereno cites medical literature which shows that steroids give the appearance of great muscle presence, but they do not address the illness. With respect to the petition at hand, this puts emphasis on the necessity to declare to the people what exactly are the parameters of martial law. Thus, Sereno asked about “the legal standards” that ought to be followed in order for there to be a valid declaration.

According to Sereno, a delimitation of the scope of martial law “assures petitioners who have brought up the possibility of abuses and a return to the Marcos martial law regime, that it is in fact part of the duty of the Supreme Court to ensure the safeguard of the Constitution and the protection of the Constitutional rights of its citizens.” Sereno also emphasizes the duty of the Supreme Court “to remember the AFP who under possibly misdirected order can actually do acts for which they can be held eventually, civilly and criminally liable.” Thus, it also behooves the Court “to protect the AFP as an institution. On behalf of them, this Court must also define the limits of what the President can direct.”

Historically, martial law was a power granted to the American Governor-General which he used against Philippine insurgents in the Philippine-American war early in the 20th century. The 1935 constitutional convention delegates, anticipating World War II and to counter the threat of communist insurrection, granted the President such power. Clearly, this was a power only for extreme situations and only for a temporary period when civilian government was not possible. Ferdinand Marcos, however, misused the power in the guise of building a new society, but really just to stay in power and for him and his cronies to plunder our economy. The 1987 Constitutional Commission, after debating whether martial law should even be a power granted again to a President, decided to compromise, but sanitized martial law so never again would we have another Marcos. Thus, martial law cannot abolish legislative councils, derogate the Bill of Rights, supplant civil courts, and replace local governments.

This is the genius of the framers of the 1987 Constitution: in defanging martial law, it reduced the power and made it equivalent to the calling out power which allows the President to order the Armed Forces of the Philippines to suppress lawless violence. Indeed, all the actions of the President and the military to address the Marawi crisis do not require martial law.

Martial law’s impact, as Calida himself says, is psychological rather than legal. This is not to say it has no impact on real lives: for those in war zones, in urban poor areas, and in rural areas, armed groups always pose a threat to the security of individuals and communities. Martial law enhances that threat and makes the military more intimidating. In Marawi, that might be welcome, but in other places, where there is conflict because of social injustice, martial law can lead to abuse of power. 

In sum, the new martial law has no legal consequences, but it does have real outcomes. The terrorists in Marawi seem to be liking it, basking in the international attention and recognition they are getting. Civilians in Mindanao both welcome and are threatened by it. We will see in the days ahead, especially if it is extended to the whole country, whether this new martial law is good or bad for the country. A lot of this will depend on the clarity of the Supreme Court decision in saying not only what martial law is not, but also what it includes.

Jurisdiction, other procedural issues

Though the petitioners ultimately ask the Supreme Court to nullify Proclamation No. 216, the discussions in the interpellations have outlined other issues which several justices consider imperative for the Court to address in making their decision.

Questions on jurisdiction were raised by the SC justices. Justice Mariano Del Castillo opened the interpellations on the first day of the oral arguments with a question on the basis of the Supreme Court’s jurisdictions over these petitions since such a petition is not enumerated under Section 1, Article VIII of the Constitution as one of the situations included in the definition of judicial power of courts in our jurisdiction. To which the petitioners replied that the jurisdiction of the Court is anchored on Par. 3, Section 18, Article VII of the Constitution. They contend that the two provisions are completely different, and that their petitions are a class by itself as the jurisdiction of the Supreme Court to take cognizance of these cases is given to the court by a specific provision of the Constitution. Justice Lucas Bersamin adds that the petition is unique kind of review. It is sui generis. One, in fact that, according to Chief Justice Sereno, “this Court is fully empowered to take cognizance of a proceeding that is entitled “In re petition” under Article VII Section 18 because it is provided, not by our Rules of Court, but by the Constitution itself.”

Another question was raised by other justices on whether or not the Supreme Court is mandated by the Constitution to give due course to these kinds of petitions. Par. 3, Section 18, Article VII of the Constitution states: “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (emphasis supplied)” Hence, the discussion on the matter. Although neither any of the Justices nor the petitioners gave a definite stance on the matter, the Solicitor General argues that the word “may” should be interpreted to mean that the Supreme Court is not obligated to hear and decide on every and all petitions filed before them.

Other questions on procedure were raised as well. One question that was repeatedly asked by the justices was the quantum of proof that is required of the Court in deciding the petition. Although their petitioners varied in their opinion on what should be the evidentiary requirement in such a petition, we can expect that this issue will also be deliberated upon in the upcoming days.

The Supreme Court also asked both parties on the application of the principle that “he who alleges has the burden of proving the same” in the consolidated petitions at hand. Solicitor General Calida argues that the burden should be on the petitioners to show no factual basis. They must show facts to support their assertions. However, the petitioners opine the contrary. In fact, when asked this question during the interpellations on the first day of the oral arguments, Cong. Lagman insisted that the burden of proof should lie with the respondents or the parties insisting on validity of the declaration of martial law. Although the declaration of martial law enjoys a presumption of validity, the same is disputable. Thus, according to Lagman, all the petitioners have to say is that there is no factual evidence for the declaration and the burden shifts to the respondents.

Despite the important procedural questions raised during interpellations, Chief Justice Sereno reminds everyone of the constitutional duty of the Supreme Court “to ensure that rules do not arrogate from our substantive rights and that has always been a principal rule in any interpretative duty that we have.” She further opines that “it is only commonsensical that the Rules of Procedure follow what the Constitution designs because we could not have promulgated rules for the protection of rights unless they are first defined by the Constitution and by appropriate legislation.” Other Associate Justices like Justice Bienvenido Reyes also expressed similar sentiments.

Thus, we can infer from these statements that the decision of this Court on procedural issues and matters on rules will be construed during the deliberations in such a manner so that, as the Chief Justice puts it, “the ends of justice are to be achieved.”

Other martial law case: Role of Congress

Another important issue that was raised was the constitutional duty of Congress.

According to Congressman Lagman, “Congress has reneged on its duty” when it refused to convene on the matter. Although this issue was not lengthily discussed during the oral arguments because of the separation of issues, this is definitely a problem that the Supreme Court needs to address during its deliberations. Par. 2, Sec. 18, Article VII of the Constitution states: “The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. (emphasis supplied)” By the wording of the law, it is clear that it is mandatory for Congress to convene. The provision uses the word “shall” which has been interpreted in several decided cases to mean a mandatory duty. Let us take the case of Fortun vs. Arroyo. In this case, the Supreme Court, in its decision, said:

“Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated.  Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart.  The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court. (emphasis supplied)”

As former Solicitor General Florin Hilbay has stressed in a news conference, “It’s very clear that the intention is for the Congress to perform a legislative review of the declaration of martial law.” The Supreme Court itself has previously recognized the Constitutional duty of the Congress to convene on the matter, and even regarded this duty to not only be mandatory, but also automatic. The review is automatic, because there’s no need file anything or to invoke anything to initiate the power of the Congress to review.”

Hilbay, in his petition, argues that this congressional review was meant to prevent abuse of power, and that, in the passage of the Senate and House resolutions supporting the President’s decision, Congress has unlawfully neglected their constitutional duty to convene. According to the petitioners, a mere passage of resolution is not enough to comply with this duty because the provision in the Consitution is clear. Congress is required to convene and vote jointly. Section 18, Article VII of the 1987 Constitution states, “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. (emphasis supplied)” The provision evidently requires Congress “to act as a single deliberative body.” Thus, it is the position of the petitioners that this duty cannot be substituted with the passage of separate resolutions. They insist that “substantial compliance is no compliance.”

However, this particular issue is faced with challenges.

Traditionally, the Supreme Court has only declared laws as unconstitutional or simply stated that the Congress did something wrong. Thus, it is now the task of the Court to find a remedy for this matter. It is clear that the Supreme Court cannot issue a writ of mandamus to order the Congress to do something. But what now can the Court do in the case of a co-equal branch of government not complying with its constitutional duty? This is something we not only expect to be discussed in the deliberations, but it is also something we urge the Supreme Court to resolve.

Historic opportunity for the Supreme Court

In summary, we imagine that the Supreme Court will discuss the following in the upcoming deliberations:

• A delimitation of “what [the] government can and cannot do during martial law” (Chief Justice Sereno);
• Possible civil and criminal liabilities of officers of the AFP for acts committed during the martial law declaration should be discussed, including authority as local government and liability for the disbursement of funds;
• Discussion on the appropriate proceeding and other procedural requirements to look into the sufficiency of factual basis of a petition for judicial review; and
• In the Hilbay petition, a remedy that can be granted so that Congress will do its constitutional duty to review martial law. 

As lawyer Manuel said during his interpellations, what we have here is a “once in a lifetime opportunity,” a petition of the first of its kind in the thirty decades of existence of the 1987 Constitution. We should not let this opportunity pass without laying down these additional guidelines that will be followed by, not only the current administration, but also future ones.

And, as Chief Justice Sereno has said, “while the Court is very concerned about the violence that is happening in Marawi, we must still protect the fabric that holds together our society. And while we will and may uphold the power of the President, it is also our duty to ensure that that power is discharged fully in accordance with the framework that governs our country.”

Chief Justice Sereno continued to ask, “Otherwise, what will happen to this country, Atty. Manuel?”

To which, Manuel replied, “Then, we will be destroying the institutions that have been built over several decades from the 1987 Constitution.”

Chief Justice Sereno: “And what does it mean for us to destroy institutions, Atty. Manuel?”

Manuel: “Then, we are reverting back to the Martial Law Period during Marcos.” – Rappler.com

 

Tony La Viña is former dean of the Ateneo School of Government. Regina Ongsiako is an incoming third year law student at the Ateneo Law School and presently a legal intern at the Manila Observatory.​