Martial law: When Congress defaults, Supreme Court can step in

Emil Marañon III
Martial law: When Congress defaults, Supreme Court can step in
(UPDATED) Congress’ refusal to convene is tantamount to a waiver, in favor of the Supreme Court, of the legislature's priority in performing the duty to reviewing the martial law declaration

(UPDATED) One after the other, the two houses of Congress have issued resolutions manifesting support for President Rodrigo Duterte’s declaration of martial law in Mindanao. There was Senate Resolution Number 388 on May 30, and House Resolution Number 1050 the following. Both resolutions expressly say lawmakers won’t revoke the declaration. 

Legislative resolutions, however, are mere expressions of collective sentiment or opinion, and do not have any effect or legal consequence. Under the Constitution, to validate or revoke a martial law declaration, both the Senate and House of Representatives must convene and vote jointly there, not separately.

Congress’ refusal to convene is a mystery to many. If indeed the President has a “supermajority” in Congress, as duly demonstrated by the swift passage of the two resolutions, why not just convene and validate his martial law properly? Why not give Duterte’s critics a “show” and disprove them by sticking to the procedure in the Constitution?

BRIEFING. In this file photo, Cabinet members attend a briefing by security officials on martial law in Mindanao at the House of Representatives. Photo by Darren Langit/Rappler

One of the strongest and most convincing theories is that this could be strategic. It is meant to buy time and prevent the Supreme Court from immediately intervening and reviewing the President’s declaration. While the President is sure of Congress’ loyalty, the Supreme Court is an unknown terrain to him. A Supreme Court case on his martial law declaration – three have been filed just within this week – is a battle even the President is not sure to win. For a pragmatist and Machiavellian, President Duterte does not want to be in this battle.

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This apprehension could have been fed by subtle messages emanating from Padre Faura after his Proclamation Number 216 was issued. The first hour the next day, the Supreme Court, through the Chief Justice Maria Lourdes Sereno, issued a directive to all courts in Mindanao to remain open and for all judges to remain in station. With this message, the Supreme Court made its presence felt, subtly asserting not only its judicial powers in the time of martial rule, but its powers to put the President in check.

Two days after, on May 26, Chief Justice Sereno reminded graduates of the Ateneo de Manila University that, while “martial law power is an immense power that can be used for good,” it “can result in oppression” when abused – an obvious reference to Duterte’s martial law.

But can the Supreme Court be prevented from intervening by Congress’ refusal to convene?

Under the Supreme Court’s ruling in Fortun vs. Gloria Macapagal-Arroyo (GR Number 190293, March 20, 2012), Congress’ power to review a martial law declaration takes precedence over the High Court’s own review. This means while both branches of government have jurisdiction to review the President’s martial declaration, the Supreme Court has to allow Congress to exercise its own review powers first, before it can get into the picture. This sequence in the exercise of reviewing powers is necessary to prevent the scenario where both of them concurrently review a single martial proclamation and possibly ending up with opposing conclusions. In that case, which branch prevails?

Congress not convening would therefore mean confusion on the part of those who intend to go up before the Supreme Court. Should they first file a mandamus petition before the Supreme Court to compel Congress to convene, and wait for it to act, before it can properly assail the President’s martial law declaration before the SC?

Definitely, a mandamus petition is another layer of legal complication that can hamper any move to question the proclamation. In its own, it is already a complicated legal issue on whether the Supreme Court can mandamus or compel to act a co-equal body like Congress. This kind of case may also take time.

But it can be argued as well that Congress’ nonfeasance would be tantamount to a waiver of its priority in favor of the Supreme Court. Even the ruling in the Fortun case reinforces this, with the Supreme Court saying that it can step in immediately as an exception when Congress defaults, procrastinates, or altogether fails to fulfil its duty. It can be further argued that with the House’s and Senate’s resolutions, Congress did all three: defaulted, procrastinated, and failed on their duty. This would mean that those who want to go up to the Supreme Court can go through this route following this exception.

While the Supreme Court has the power to review the sufficiency of martial law’s factual basis, this is not a carte blanche authority for it to meddle in the territory of national defense. The High Court may be tasked to audit the power of the President; at the end of the day, the President is still the commander-in-chief in charge of defending the state from threats of invasion and rebellion. He will always be at a better vantage point in appreciating threats and in calibrating the appropriate response than the justices sitting in their salas in Padre Faura. With this, it is logical, even necessary, that he must be given the widest latitude in dealing with the matter.

This, however, is not a license for the President to do whatever he pleases. There has to be a balance, and it has to be stricken somewhere. To safeguard this balance is precisely the point of the review powers of both Congress and the Supreme Court: to make sure that, while full and immense state powers are momentarily in his hands, he acts within his constitutional limits. The problem is when these checking mechanisms fail as what we witness now.

As cases are filed one after another before the SC, the government will surely raise the rule on precedence; the petitioners, the exception. Ultimately, the fate of Duterte’s Proclamation Number 216 – and this country’s too – will fall in the hands of the Supreme Court. Along the way, its resolve will be tried and its independence tested. All eyes will be watching, the High Court being literally the last checking mechanism still standing, after Congress rendered itself inutile and buried its head in the sand. – 

Emil Marañon III is an election lawyer who served as chief of staff of former Comelec Chairman Sixto Brillantes Jr. He completed his LLM in Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar. 




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