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Constitutional duty of Congress

/ 12:15 AM May 30, 2017

Former solicitor general Florin Hilbay posted a suggestion on Twitter last Sunday: “Here’s an idea: 300 lawyers signing on to an SC petition to require Congress to comply with its constitutional duty to convene & deliberate.”

That the possibility of a mass petition like this is raised at all is a reflection of the startling position that Congress has taken in the wake of President Duterte’s declaration of martial law in Mindanao. House Speaker Pantaleon Alvarez and Senate President Aquilino Pimentel III quickly, as in less than 24 hours after the declaration of martial law, said that there was no need to jointly convene, deliberate and vote on Mr. Duterte’s action. They said a joint session would be necessary only when legislators disagreed with the declaration—the implication being that every single legislator was in support of it.

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Was there a caucus to hear out individual voices, or to conduct even a straw vote on the matter? There was none.

On one of the last-resort actions of a president—so grave that the framers of the Constitution deliberately planted multiple safeguards around it to prevent its reckless use—the coequal branch of government mandated to perform the initial scrutiny of it just basically decided to roll over and play dead. So much for checks and balances, when the first line of defense against the possible abuse of martial law powers—an immediate review of its necessity by the elected representatives of the people—disintegrates at first blush with hardly a whimper. Sen. Tito Sotto perfectly exemplifies this earnest, simple-minded sense of surrender: “Why would they want a joint session when it is not necessary, not needed, not really called for?” he said.

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Martial law in the whole of Mindanao, despite the fighting with the Maute extremists confined only in Marawi City for now, has triggered questions about the decision-making process that Mr. Duterte and his national security team employed in making the choice. The Maute attacks are clearly a case of terrorism, and less clearly the invasion or rebellion that the Constitution specified as the only two reasons for martial law to be imposed. The military has also repeatedly stated that the situation is under control: That was the assessment given by Armed Forces Chief of Staff Eduardo Año to Mr. Duterte in Moscow—only to be contradicted by Palace pronouncements that appear to paint a direr, more convoluted picture of the situation, such as the President conflating the conflict with his centerpiece war on drugs. It also turned out that Mr. Duterte was grossly misinformed about two alleged incidents the Palace had cited as triggers for the martial law declaration: The local chief of police who was supposedly beheaded by the terrorists turned out to be very much alive, and the news that a hospital was taken over by the terrorists has been proved false.

Congress is supposed to ask the hard questions and do due diligence in this regard, but why is it shirking its constitutional responsibility? Its response appears to have hardened Mr. Duterte some more; he has announced that he would ignore the Supreme Court, and that “until the police and the armed forces say the Philippines is safe, this martial law will continue.” And yet the Constitution says that the Supreme Court has the power to review the factual basis of the President’s decision “in an appropriate proceeding filed by any citizen,” and that “civilian authority is, at all times, supreme over the military.”

For good measure, Mr. Duterte did also mention Congress as among those he would ignore. But he needn’t have bothered as Congress appears intent on making itself irrelevant. (At this writing, however, it seems to have bestirred itself and is making the necessary noises.) In Marcos’ martial law, Congress was padlocked. This time, is Congress padlocking itself?

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