Tug of war

As the hearings in the Supreme Court on the martial law petitions take place, many hope to find out what ought to have been put on the record weeks ago—namely, what factors contributed to President Duterte’s decision to impose martial law in Mindanao.

Yesterday, for example, media reported Solicitor General Jose Calida’s assertion that on May 18, government obtained intelligence that the Mautes were planning to burn down Marawi on May 26 and raise the flag of the Islamic State. This led to the May 23 arrest operation that turned into the Battle of Marawi. It also explains Defense Secretary Delfin Lorenzana’s somewhat cryptic statement in Moscow—that the arrest mission’s turning into urban fighting was not a failure of intelligence, but a failure of proper intelligence appreciation. We might, indeed, get bits and pieces of information and a counteranalysis to the President’s report to Congress. However, all of this was properly Congress’ to discuss, except that it passed on the opportunity to do so.

Which is one of the questions now confronting the Supreme Court: whether Congress ought to be compelled to convene (or told it was remiss in not convening) in joint session and vote on martial law proclamation, whether for or against. The other question is: Is there enough factual basis for martial law?

What both questions mean is that the Supreme Court is on the horns of a dilemma. The Constitution requires it to rule on the factual basis of martial law, but doing so places it on a possible collision course with the other two branches of government—the executive and the legislative. This is pointedly, and painfully, the problem. Since both the President and half of Congress in the person of the Speaker of the House have raised the ante by making dismissive and hostile statements about the Supreme Court, nervous types have become skittish over the possibility of a constitutional crisis.

In this instance a constitutional crisis would be in the form of both the President and Congress laughing in the face of an adverse decision by the Supreme Court, and shrieking that the justices have no clothes. The result would be a Supreme Court that produced thick wads of paper with no effect on the rest of government.

When the House tried to impeach then-chief justice Hilario Davide Jr., it was Speaker Jose de Venecia who was on the horns of a dilemma. The Supreme Court then had ordered the House to cease and desist. The House had to decide whether it should proceed and risk of the Supreme Court telling the police, under the executive branch, to carry out its orders. This raised the possibility of the police invading the session hall of Congress on orders of the President, upon orders of the Supreme Court. In one of the most important speeches in our political history, De Venecia addressed his colleagues to plead with them to stand down, averting a crisis.

The Supreme Court back then wasn’t beyond brinksmanship when it’s chief justice was embattled, just as it reversed almost half a century of precedents to allow one of its own to become chief justice by virtue of a midnight appointment a decade later. It can be lion-like in defending itself; but in the face of a roaring chief executive its record is a little more mixed.

What was, and is, fundamentally at stake in both 1972-73, and in 2017, is the collective courage of the Supreme Court and the character of the individual justices. Lawyers can argue any question from any angle, taking any side (including the most reprehensible). Which means that all things being equal, in a possible confrontation involving institutions, it is human frailty, not judicial skill, that can dictate the outcome.

This was the fundamental lesson of the confrontation between Marcos and the Supreme Court in 1972-73. There was nothing to stop the justices from confronting martial law, except the justices themselves; what they did was provide legal cover for their buckling under intimidation. Not a single one of our present judges matches the stature of their predecessors in 1972, not least because, then, the justices represented a Court with untarnished institutional and personal reputations. Yet we saw how many of them raised the white flag.

Then, as now, it will be personal character, not abstract law, that will prevail.