Tuesday, October 23, 2018
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Sisyphus’ Lament

Solicitor General Calida revokes martial law

Solicitor General Jose Calida answered Senior Associate Justice Antonio Carpio that if martial law were a sentence, it would end with an exclamation point instead of a period. This was the legal bombshell of the decade. The government’s official position is that martial law is legally toothless.

An unamused Carpio had asked, during the Supreme Court hearings last June 13-15, what new powers martial law grants.
Define martial law, he asked.


Calida eventually stated there is no legal difference between martial law and President Duterte’s normal power to “call out” troops. The effect is psychological, not legal, he said with admirable candor.

Mic drop!


He made it the official government line that martial law cannot make legal what would normally be illegal. You still have the same rights you did before martial law. Anything done under authority of martial law must be illegal (or already legal to begin with). These are the critical implications of Calida’s argument that martial law creates no legal change, just a psychological effect.

Thus, martial law is not what allowed the President to deploy troops to Marawi — his normal powers did. Martial law did not authorize checkpoints — his normal powers did. And martial law
cannot allow illegal searches or suppression of free speech — no one can, not even under martial law.

Going back to court decisions from the 1800s, martial law generally means installing military government where civilian authority had collapsed. Thus, democracies keep it as an emergency option to maintain order. But Calida told Carpio he rejects even this classic definition.

Calida thus effectively revoked martial law. He reduced it to pure semantics and symbolism, with no legal effect.

The justices could have gone home right there.

Speaking of semantics, the semantics of martial law surely appears pointless. The key to the Supreme Court case is that the Constitution only allows one narrow ground for a challenge: lack of factual basis. Calida’s definition of
martial law aside, this was what petitioners led by elder statesman Rep. Edcel Lagman pursued.

Their two strong arguments mirrored my June 6 outline. First, Lagman alleged the Maute group was defending against a military raid, not overthrowing the government. Islamic State flags were mere propaganda, not harbingers of a caliphate. Martial law would be invalid because the Constitution only allows it for “invasion or rebellion.”


Brilliant, but unwinnable. If armed men occupy a city, arguably, the President may take extreme action before having absolute proof of their intent.

Of all the justices, only Francis Jardeleza dutifully went through the facts cited in President Duterte’s report to Congress. Lagman argued that a “litany” of these were wrong. Amai Pakpak Hospital was not occupied. Landbank was not ransacked.

But note: factual basis is reviewed as a whole. The question is, are armed men trying to take over Mindanao, not whether a particular building was really burned down? Did the overall situation warrant martial law or not?

Second, Carpio zeroed in on how “actual” rebellion, not mere threat, is required. He implied martial law cannot cover all of Mindanao. Were there reports of rebellion in Agusan, he asked. Misamis? Davao? Surigao? Dapitan? Pagadian? The Dinagat Islands?

Carpio further asked, would there be rebellion in Agusan if a handful of Mautes escape there? Or if Mautes were planning to but had not yet attacked there? Likely not.

Note the justices questioned mainly Lagman and invited only Lagman to the final day’s closed door briefing by the Armed Forces chief of staff. As I described on Inquirer.net, other lawyers disrupted the high-profile case with clumsily framed, mema side issues.

The hearings thus show two paths for Lagman to win: First, will the Supreme Court uphold Calida and leave martial law a purely symbolic, legally toothless power? Second, will enough justices question martial law for all of Mindanao, and did the government convince them behind closed doors of “actual” rebellion outside Marawi?

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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TAGS: Antonio Carpio, Edcel Lagman, Inquirer Opinion, Jose Calida, Marawi siege, Mindanao martial law, Oscar Franklin Tan, Sisyphus’ Lament, Supreme Court
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