Congressional review of ML

To safeguard our people’s basic rights when martial law (ML) is proclaimed and/or when the privilege of the writ of habeas corpus is suspended, the 1987 Constitution obligated both the Congress and the Supreme Court to review, and if needed, to nullify the proclamation or suspension.

Constitutional duty. Last Sunday, I took up the petitions seeking the judicial review of Proclamation No. 216 that contained the proclamation and the suspension.

Today, let me discuss the petitions seeking the congressional review provided under Sec. 18, Art. VII of the Constitution: “… The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President… The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.”

To fulfill their described duty, the two chambers of Congress met separately, NOT JOINTLY, on May 31, 2017, and passed two separate resolutions 1) “that the Senate finds the issuance of Proclamation No. 216 to be satisfactory, constitutional and in accordance with the law… [and] finds no compelling reason to revoke the same,” and 2) with the House of Representatives “expressing … full support … to President Rodrigo Duterte as it finds no reason to revoke Proclamation No. 216…”

Since the two chambers separately supported the edict, they did not convene jointly anymore, insisting that a joint session is required only to revoke the proclamation/suspension.

Petitioners’ stance. A group of 331 lawyers, led by former solicitor general Florin T. Hilbay, disagreed and filed on June 6 a 23-page (57, including the annexes) petition for mandamus in the Supreme Court “to compel the [two chambers] to comply with their constitutional duty … to convene in joint session to deliberate, and thereafter vote jointly to maintain or revoke the proclamation … and suspension…”

They argued that “the plain text of the Constitution, supported by the express intent of the framers, and confirmed by the Supreme Court, requires that Congress convene in joint session to deliberate and vote as a single deliberative body… What the Constitution requires is not so much for Congress to exercise its discretionary veto powers [as] for Congress to perform, in joint session, its constitutional obligation to review the act of the President.”

They added: “If Congress is required to convene within twenty four hours if not in session, with more reason, it is required to convene immediately if in session.”

They quoted extensively from the deliberations of the 1986 Constitutional Commission, particularly the exchanges among delegates Joaquin Bernas, Francisco Rodrigo and Christian Monsod (who is one of the petitioners here) to show the “express intent of the framers” requiring a joint session.

Ruling for future. Finally, they cited Fortun vs Arroyo (March 20, 2012) that described the “duty” of Congress to convene in joint session as “automatic,” and noted the Constitution’s demand “for quick action on the part of the Congress” as it is “required to convene without need of a call within 24 hours following the President’s proclamation or suspension.”

However, these pronouncements, I think, were mere “obiter” (or side remarks) because the petition in Fortun was dismissed for being moot when President Gloria Macapagal-Arroyo lifted martial law before the Court could rule on it.

I believe the Court, as the final interpreter of the Constitution, should decide this issue head-on now to guide Congress in performing its checking function prospectively.

If the Court decides to grant the petition, it need not, in my humble opinion, issue a writ of mandamus compelling Congress to convene jointly. The legislature can be granted the benefit of good faith, given that the quoted words from Fortun did not constitute the “ratio decidendi” of that case.

But to uphold the rule of law, I think the Court should definitively rule on this legal issue now for the guidance of all concerned, in case martial law is proclaimed again in the future.

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