A court’s abdication

The Supreme Court decision in Lagman v. Medialdea (G.R. 231658, July 4, 2017) on Proclamation No. 216, or President Duterte’s declaration of martial law in Mindanao, leaves much to be desired in the Court’s exercise of its constitutional mandate under Section 18, Article VII of the 1987 Constitution to review the sufficiency of the factual basis for the declaration of martial law.

However, before going into the substance of the decision itself, there are some procedural rulings in the decision worth mentioning that bode well for the operation of the check-and-balance mechanism on the President’s martial law powers.

Score for democratic forces

First, contrary to the position of the Duterte administration as represented by the Solicitor General, the Court has ruled that its review of the President’s martial law declaration is not brought before the Court as a Rule 65 Petition for Certiorari, where petitioner must first show that there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the President. The Court ruled that a Rule 65 petition is not the appropriate proceeding for the fulfillment of its mandate in reviewing the sufficiency of the factual basis for a martial law declaration. The Court said that its review of the factual basis for a martial law declaration is a specific mandate under the Constitution, and the appropriate proceeding for the exercise of said review is therefore a sui generis action, or a petition that is a class in itself.

This ruling effectively lowers the bar for the Court’s allowance of any petition that questions the factual basis for the declaration of martial law. Petitioners need not show that there was grave abuse of discretion. They need only to challenge the factual basis for a martial law declaration and substantiate this allegation in the petition.

This is a landmark ruling. This is the Court recognizing the fact that its check and balance role in the declaration of martial law is not essentially a judicial function, but partakes of the executive function of determining the propriety of what is essentially a political question. Ordinarily, courts will only intervene to settle the application of the law on a question of fact raised before it, or determine if there is grave abuse of discretion in the exercise of governmental powers. Before the High Court itself, not even questions of fact are allowed, only questions of law.

The review of the factual basis for a martial law declaration is therefore one instance where the Constitution gives the Court a power beyond mere judicial review that does not require the presence of grave abuse of discretion. Under its Section 18, Article VII, the Constitution has empowered the Court to partake in the determination of what is essentially a political question, i.e., the necessity or dispensability for the declaration of martial law under a given set of circumstances.

This is a score for democratic forces and civil liberties.

Second, the Court likewise rejected the government position that the Court should defer to both the Executive and Legislative branches on this question, especially if Congress has not chosen to revoke the President’s declaration of martial law.

On this issue, the Court ruled that its power to review the factual basis for the martial law declaration is independent of Congress’ power to revoke the declaration. In so doing, it has overturned its old ruling in Fortun v. President Macapagal-Arroyo (G.R. No. 190293, March 20, 2012), where it previously said that the Supreme Court can only step in if Congress defaults in exercising its own check and balance power on a martial law declaration. The Court said that its pronouncement in Fortun is “an aberration, a stray declaration, which must be rectified and set aside xxx.”

These are at least two rulings on issues that favor the petitioners and democratic forces. Unfortunately, they are insufficient to consider the Court decision as a victory for democratic forces, considering the subsequent pronouncements in the same Decision that finds a Court almost waxing sentimental and pining for the stability and security that martial law supposedly ushers in.

Indeed, while the Court may have lowered the bar on the allowance of petitions questioning the basis for martial law, it likewise lowered the bar on the standards that must be met by the President in a declaration of martial law.

Calibrating commander-in-chief powers

The Court ruled that its power to review martial law’s factual basis does not extend to a review of the President’s prerogative at calibrating his Commander-in-Chief powers, viz., calling out the armed forces, suspending the privilege of the writ, and declaring martial law. The Court says that its review does not extend to “calibrating the President’s decision pertaining to which extraordinary power to avail given a set of facts or conditions.”

This ruling is barely agreeable, even if the Court qualifies its statement with the words “at least initially,” meaning, the Court when called upon can thereafter review whether or not whatever power was invoked for a given set of emergency circumstances was proper. This is actually saying that the Court can actually check on the calibration, eventually. But the value of the statement is the gung-ho mentality that it conveys to a sitting President, who, according to the Court, can choose, at least initially, martial law in circumstances where calling out powers would suffice.

This ruling betrays a lack of contextual consideration for the ideology and politics of a sitting president, and the Constitution’s warning to the Court to be wary of a President who, like Marcos, has authoritarian tendencies. This is always the 1987 Constitution’s reminder to the country, spread over its Articles and provisions:

Beware of another Marcos. Beware of another martial law.

An autocrat’s martial law

An autocrat will always choose a sledgehammer over a hand drill, and a democrat will always refuse strong-hand measures when precision action can achieve the objective of suppressing public disorder and disturbances, including pocket rebellions. We have seen the resolution of a crisis on the scale of the Maute uprising during the Zamboanga Siege of September 2013. Here, there was no martial law, only the calling out of the armed forces to take over the PNP in the suppression of the MNLF-Misuari faction’s attack on Zamboanga. This is because President Aquino abhorred martial law, and what it has done to the country, and personally to his family.

At a time when what we have is an autocrat for a president, who promises that his martial law will be as harsh as Marcos’s Martial Law, it is better not to encourage him with statements that reinforce his discretion on the calibration of his authoritarian methods. In the first place, the Constitution does not allow the declaration of martial law when there is no rebellion or invasion, hence, the need and requirement for calibration.

This is what graduation and calibration of the Commander-in-Chief powers mean, nothing more. The Constitution itself provides that the President is not at liberty to choose willy-nilly among the 3. For the Court to thus state that its power does not include “calibrating the President’s decision pertaining to which extraordinary power to avail given a set of facts or conditions” is confusing and does not make sense, when the Constitution itself provides the requisites for the exercise of the 3 Commander-in-Chief powers.

Enabling a tyrant

The point is, outside of the legal and constitutional considerations, and basing any declaration on merely political and ideological tendencies, or even temperamental inclinations, a tyrannical president will always choose martial law, while a democrat will suspend putting any part of the country under military law up to the last extreme instance. The latter is precisely because of the consequences martial law portends for civilian government, civil liberties, and the exercise of our basic liberties and freedoms. A tyrant will have no such qualms for these, as Duterte has repeatedly said so himself.

This President is a tyrant, and a tyrant like him will always choose martial law for the simple reason that tyrants do not care about the effects of military rule on civil society, and its affinity for basic freedoms and liberties. A Court enabling the President by reinforcing his discretion on martial law is the last thing we need under an autocratic leader.

Given these underlying premises, the Court’s Decision does not build confidence in the Court’s capacity to perform its role as the people’s and their Republic’s last line of defense against an autocratic President who, admittedly, despises human rights, has only contempt for the rule of law, and has never made a single pronouncement to assure citizens that his administration respects their civil liberties and basic freedoms.

Forgetting Martial Law

The Court ruled that Proclamation No. 216 is not void for being vague, because the “void for vagueness” principle in constitutional law is applicable only to decrees or acts which affect free speech. According to the Court, martial law “does not regulate speech, religious freedom, and other fundamental rights”.

This is where the Court starts forgetting what martial law is all about.

Of course, martial law is all about restricting fundamental liberties. The curtailment of the freedom of speech and expression was the very first thing that Marcos did when he declared martial law, followed by arbitrary arrests, illegal detention, torture, enforced disappearances, and EJKs. We don’t have to wait until Duterte starts restricting free speech in Mindanao under martial law before we start to realize that martial law has everything to do with curtailing free speech and democracy.

Abdication

In reviewing the sufficiency of the factual basis for Proclamation No. 216, the Court concluded the President “had sufficient factual bases tending to show that actual rebellion exists”, and that the alleged falsities, inaccuracies, simulated conditions, and hyperbole in the President’s report to Congress, justifying the declaration of martial law, do not matter because the Court “is not concerned about absolute correctness, accuracy, or precision of the facts xxx”.

Petitioners in the case pointed out 5 inaccurate if not absolutely false assertions in the President’s report to Congress. The Court basically ruled that petitioners’ allegations were unproven, based as they are on mere news reports which are inadmissible in evidence as hearsay. The Court then proceeded to say that regardless, only 5 out of the enumerated factual basis in the report are alleged to be false, and the remaining factual assertions are still sufficient by themselves to justify the martial law proclamation.

This is the point in the Decision where the Court finally abdicates its mandate under Section 18, Article VII of the 1987 Constitution. Its attention having been called to inaccuracies and falsities in the President’s report to Congress, based on news reports, the Court proceeded to decide the issue like it would an ordinary civil or criminal case, when precisely the Court’s power to review the factual basis for a martial law declaration is a special power granted to it by the Constitution, and is admittedly sui generis.

Presumption of regularity should not be the benchmark in ascertaining the truth or falsity of the factual assertions in the President’s report, especially if there are indications based on neutral news reports that some of the facts presented by the President are simply not true. If some are not true, how much more of the report is not true, or inaccurate?

‘Alternative facts’

This is what the Constitution intends in the Court’s review of the factual basis for the President’s declaration. The facts, first and foremost, must be true, not false or manufactured. The Court cannot merely presume that all of the stated facts in the report are true because otherwise, this defeats the very purpose of the Court’s review of the factual basis for the martial law declaration. If anything, the Constitution requires the Court to satisfy itself that the President’s report is not based on fake facts or, as they are derogatively known now, “alternative facts.”

In Marcos’s martial law declaration, most of the justification was self-serving, i.e., the perpetuation of Marcos’s stay in power. This is what the Constitution wants to prevent, the utilization of martial law based on fake facts and for purposes of perpetuating a president’s stay in power, whether in order to consolidate his hold on the military, or to suppress the legitimate opposition. This is why the Constitution requires the Court not to take the President’s word for the justification of his declaration, or swallow his report hook, line, and sinker. The Court has to go beyond a presumption of regularity, especially if there are indications showing that the President’s report makes liberal use of “alternative facts” in justifying his declaration.

Petitioners in an action seeking the Court’s review of the sufficiency of the factual basis for a martial law declaration are, by and large, nominal parties, as the Constitution does not require petitioners’ rights to have been materially violated before they can file the petition. The nominal petition is simply the trigger that initiates the Court’s substantial mandate of reviewing the sufficiency of the President’s martial law declaration.

As such, the Court should have not put the burden of proving petitioner’s allegations of fake reports on the petitioners, the petition being largely a public interest case in the form of a class action suit. It was enough that the allegations of fake reports are supported by neutral news reports to the contrary. It was up to the Court to fulfill its mandate by thereafter ascertaining for itself that the President was not liberally making use of “alternative facts” in his justification for martial law.

Last line of defense

This is why a petition for the Court’s review for the sufficient basis of martial law is sui generis. It is special. It is a specific constitutional mandate. The Constitution requires the Court to do more than be a passive arbitrator, simply because it is the last line of defense for civil liberties and basic freedoms, especially under circumstances of an autocratic President and an acquiescent Congress.

More importantly, the Court cannot leave the entire matter of factual and intelligence reporting to the military, if there are civilian security agencies of government, public officials (local or national, elected or appointed) and CSOs and NGOs, with countervailing interpretations or versions of what is actually happening on the ground.

The military is not a neutral organization. Its bias is for national security. This is why the constitutional review of the sufficiency for the declaration of martial law is not given to the AFP. It was given to the Supreme Court, because the Constitution presumes that the Court’s bias is for the protection of civil liberties, basic freedoms, and the Bill of Rights. This is how Section 18, Article VII becomes a check and balance mechanism, where civilian supremacy is meant to include civilian courts that have the discernment of reason not to swallow everything the military says, especially given an intelligence community that Google-searches its information for top secret intelligence reports.

In the end, the statement of the Court that the correctness, accuracy, and precision of the President’s report does not concern the Court in its review of the President’s martial law declaration is absolutely baffling, given the consideration that ascertaining the truth behind the facts asserted in the report is the very crux of the Court’s constitutional mandate to review the sufficiency of the factual basis for the President’s martial law declaration.

Based on its Decision in Lagman, it seems that the Court will allow a martial law declaration, even if it is entirely based on “alternative facts.” Marcos’s martial law declaration was based on “alternative facts”. The least that the Court could have done, under a Constitution that is a living and breathing condemnation of Marcos’s martial law, was to make sure that Duterte’s is not. – Rappler.com

Senator Leila de Lima, a fierce critic of President Rodrigo Duterte, has been detained at the Philippine National Police Custodial Center in Camp Crame since her arrest on drug-related charges on February 24, 2017. She is a former justice secretary and chairperson of the Commission on Human Rights.