[OPINION] On Martial Law extension 2.0: Waiting for the other shoe to drop

Dread. And a disturbing sense of déjà vu. Those are my gut reactions to hearing about the Supreme Court’s 10-5 vote to uphold the validity of the second extension of martial law over the entirety of Mindanao, this time for another whole year. 

Surprise came when Duterte first sought the extension for such a long period of time (twice as long as the original extension, which all adds up to 565 days of martial law over the entire Mindanao since its first declaration on May 23, 2017), especially after the AFP and PNP have been unqualifiedly successful in responding to the threats posed by the Maute group. 

Shock came when Congress approved the request for a second extension, seeming to prove that Congress, as an institution, has become a mob-ruled rubber stamp for Malacañang. Had I been there and able to ask my questions of the resource persons, I would have asked the government, and especially the AFP, what it thinks “martial law” means. 

Because if they can’t even define martial law and state what martial law powers they’ve been using thus far and seek to use in the future, how can they reasonably expect Congress – the representatives of the people – to grant their request? No self-respecting Congress would hand over to the military the authority to wield a power that the latter does not even understand. That’s a recipe for abuse and disaster.

Hence, the dread. Dread because the Supreme Court could have stopped these excesses, as the Constitution intended it to do. 

Note, as was pointed out by the petitioners, the Constitution requires two things: (1) the presence of invasion or rebellion; and (2) that public safety requires the declaration of martial law. 

Actual rebellion, and not imminent threat, is required. Do we see now any actual rebellion in Marawi City, or any part of Mindanao? Besides, the mere existence of rebellion is not sufficient to serve as basis for the declaration of martial law (otherwise, we would have been in a perpetual state of martial law since there is always a rebellion, or some form of it, somewhere). That is not enough; in addition, public safety must require its declaration. 

And the role of the Supreme Court is clear. It is empowered – nay, obligated – to determine the sufficiency of the factual basis of the proclamation of martial law or its extension.

Sapat ba? Ibig sabihin dapat may magaganap na pagtitimbang. When we measure what is “sufficient” minimum wage for a family’s subsistence, we weigh several factors, including the average size of the family and the prices of commodities. Ganun din sa batas militar. Sapat ba ang basehan para sa hinihinging lawak at tagal ng deklarasyon ng martial law? May sapat na dahilan ba?

Yes, martial law is so extreme that its proclamation or extension is one of the instances when the Supreme Court does become a trier of facts.

It will be interesting to see how 10 justices justified finding sufficient factual basis for such a long period of martial law over such a large geographic scope for the extension. 

I use “interesting” euphemistically because the truth is, I am afraid. Afraid that the reality is that the Supreme Court only functions as it should under “fair weather” administrations – when leaders of the other branches respect the law and the Constitution.

I am afraid because, ironically and unfortunately, it is precisely when fair weather passes into foul weather that we need them to be at their strongest. Hindi puwedeng matapang lamang ang Korte Suprema ‘pag marunong sumunod sa batas ang ibang sangay ng gobyerno. By definition, dapat mas marunong at handang manindigan ang Korte Suprema kapag pasaway ang nasa Malacañang at Kongreso.

I am at least still hoping that the reasoning of the majority maintains some standards that will ensure that future excesses will be avoided. Otherwise, all the safeguards that the Constitution has put in place will be for nothing, and all bets are off with this administration.

Depending on how carefully written the Supreme Court’s ponencia would prove to be, I fear that this could stage the possibility of declaring martial law over the whole nation on the whim of a president who is faced with a problem that could easily be addressed by measures less drastic than martial law, such as resorting to his power to call out the military to prevent or suppress lawless violence, invasion or rebellion.

This is especially necessary because this administration is pushing for so many drastic changes, including Charter Change. Can you even imagine being an ordinary Juan dela Cruz having to go out and cast a vote in a plebiscite for a Charter Change backed by the administration, while there is martial law? Actually, we don’t have to imagine, not even those who couldn’t remember the last martial law. 

Just 4 years ago, the Crimean legislature held a referendum asking the local population whether they wanted to join Russia as a federal subject, or if they wanted to be a part of Ukraine – a referendum that took place during a Russian military takeover of Crimea. Obviously, the referendum was a resounding “success” in favor of Russian annexation. 

Yes, I am afraid. The Supreme Court is our last bastion for the Rule of Law – but it has now surrendered 1/3 of our country to martial rule for an entire year, even when the AFP and the rest of the government itself has conceded that the threat is far from being as great as it was before. 

There is also a disturbing sense of déjà vu because there was a time when the Supreme Court was a rubber stamp for a dictator. We thought those days are behind us. Or are they? What if it’s true what they say, that the past has a way of not staying in the past?

Or, perhaps, this is the Supreme Court’s – and, in fact, our entire nation’s – chance for a do-over. Our very own “Groundhog Day: Martial Law Edition”. Where we are all Phil, who has to live the same day over and over again until he – we – get it right. Will the Supreme Court get its role right this time? Or will we have to live through another dictatorship that a High Court, by its actions and inactions, will legitimize? 

Dread and déjà vu. Two hard-to-define sensations that have probably helped our ancestors avoid or survive dangerous situations. Do we heed them or do we stubbornly ignore them? – Rappler.com