The decision of the Supreme Court in Lagman vs Medialdea, upholding the constitutionality of Proclamation No. 216, begins with the Court repudiating Fortun vs President Macapagal-Arroyo, its first-ever ruling on the use of martial law under the 1987 Constitution. In doing so, it reclaimed “clipped” powers it had “surrendered” to Congress. But the decision on President Duterte’s imposition of martial law on all of Mindanao ironically ends with a sweeping grant of extended powers to the President.
“Grant” is the word, because nowhere in the Constitution can we find the basis for the extension of powers that the Court so willingly creates for the President.
Justice Mariano del Castillo, writing for an 11-member majority, does clear the air polluted by irresponsible statements from Palace lawyers. Two conditions must be in place for a proclamation of martial law to be valid: an actual rebellion or invasion, and public safety requires the exercise of the martial law power. “Without the concurrence of the two conditions, the President’s declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must be struck down.”
The Court also depends heavily on the proceedings of the Constitutional Commission of 1986.
But it reaches some unusual conclusions. For instance, the Court held: “At this juncture, it bears to stress that it was the collective sentiment of the framers of the 1987 Constitution that sufficient safeguards against possible misuse and abuse by the Commander-in-Chief of his extraordinary powers are already in place and that no further emasculation of the presidential powers is called for in the guise of additional safeguards.” This is an astonishing claim, because in fact none of the petitions called for additional safeguards—only that the safeguards already in place be properly imposed. This strikes us as a rationalization, too clever by half, of the framers’ debates.
What do we make of this admission of defeat? “To reiterate, the Court is not equipped with the competence and logistical machinery to determine the strategical (sic) value of other places in the military’s efforts to quell the rebellion and restore peace.” But this is precisely part of the reason why the Supreme Court was given the express
power to review any proclamation of martial law; it is meant to subject the factual basis for such a declaration to a thorough accounting. In this ruling, the Court both reclaims a role it had abdicated and refuses to discharge it.
Even more chilling than this blanket refusal to hold the President to strict account is the Court’s startling gift to the Duterte administration: a rationalization of the theory that the President can impose martial law anywhere in the Philippines even in areas not under actual invasion or rebellion. The Court said: “… we revert back to the premise that the discretion to determine the territorial scope of martial law lies with the President. The Constitution grants him the prerogative whether to put the entire Philippines or any part thereof under martial law. There is no constitutional edict that martial law should be confined only in the particular place where the armed public uprising actually transpired. This is not only practical but also logical.”
In fact, this is completely illogical. After arguing that under the present Constitution martial law can be declared only in case there is an actual invasion or rebellion and when public safety requires it, the justices revert to old constitutional traditions and hold that imminent danger is enough to justify the imposition of martial rule anywhere in the country.
The Court majority avers that it is not interested in judicial activism or “adventurism.” In truth, the Lagman vs Medialdea ruling is judicial activism of an extreme kind: It involves the Court effectively legislating new powers for the president that are not even in the Constitution.