Win-win decision on martial law

On June 13, 14 and 15, the Supreme Court heard oral arguments on three consolidated petitions challenging the validity of Proclamation No. 216 “DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO” (all caps in original).

Protecting the nation. Constitutionally understood and implemented, martial law (ML) and the suspension of the privilege of the writ of habeas corpus (suspension) need not be feared. Verily, they are designed as temporary measures to assist the President in protecting the nation from devastation or dismemberment.

Unfortunately, President Ferdinand Marcos misused ML and the suspension to perpetuate himself in power, to loot the treasury, and to deprive our people of their basic rights to life, liberty and property without due process of law.

To prevent a repetition of these excesses, the 1987 Constitution limited the grounds to only two: “invasion or rebellion, when the public safety requires it,” and obligated both the Congress and the Supreme Court to check, and if needed, to nullify the proclamation/suspension.

Specifically, it mandated the Court to “review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof and must promulgate its decision thereon within thirty days from its filing.”

Main issue. In an advisory to the parties dated June 12, 2017, the Court listed 10 issues. But the key issue, I think, is whether there is “factual basis” to show “actual,” not just threatened or anticipated or imagined, rebellion; and if so, whether the rebellion is of such magnitude as to justify covering “the whole of Mindanao.”

Citing Art. 134 of the Revised Penal Code, Proclamation 216 itself provides the answer: The “Maute terrorist group” has actually taken up arms against the government, “burned down certain government and private facilities and inflicted casualties…, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion.”

Separately, Defense Secretary Delfin Lorenzana and Gen. Eduardo Año briefed the justices with confidential information on the uprising during an executive session.

Decision for future. During the orals, the petitioners were hard put to deny the

existence of actual rebellion, at the very least in Marawi City. The extensive daily media coverage of the prolonged fighting depicts the determined attempt of the “terrorist groups” to take over a portion of Philippine territory and to deprive the President of his powers to enforce our laws there.

Moreover, there is a legal presumption that the official duty of the President has been regularly performed. On the petitioners lay the burden of proof to show the opposite, i.e., that he gravely abused his discretion in making his factual finding.

That the acts complained of amount to “terrorism” is of no moment, provided they also constitute, as Solicitor General Jose C. Calida argued they do, the elements of the crime of rebellion as defined by the Revised Penal Code.

At bottom, I believe that even if the petitioners—led by Rep. Edcel C. Lagman—fail in their bid to nullify Proclamation 216, they would still have served the public interest for affording the Court the precious opportunity to define the parameters of ML under the 1987 Constitution.

Indeed, a comprehensive and clear decision will guide our officials on the constitutional way to impose and implement ML (whether in Marawi only, or in the “whole of Mindanao,” the Visayas, Luzon, or in the entire country), to safeguard our people’s rights when the privilege of the writ of habeas corpus is suspended, and to exorcise the feared abuses and excesses.

Crafted with this valuable teaching, the decision would be a landmark win-win for all.

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