Leonen’s baseless anti-martial law dissent

JAKARTA — Many were “shookt” by Justice Marvic Leonen’s dissent — before the Lagman decision was out! — because only he argued martial law is invalid even in Marawi City. Some headlines dubbed Leonen the “lone dissenter,” fake news that undermined Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio and Justice Benjamin Caguioa’s dissents.

The script styles Leonen as a new Claudio Teehankee, the Marcos Court’s great lone dissenter. Leonen fueled it by tweeting his dissent at 6 p.m., on July 5, hours before Lagman’s release.

People quote the dissent’s lines with great emotional appeal, but the actual legal portions have no basis. It is structured like an Antonio Contreras post bashing law using political science.

First, Leonen argues martial law is invalid as President Duterte declared it but did not define what it allows.

But that is Leonen’s job. Past presidents declared a “state of rebellion” or “state of national emergency.” The Supreme Court ruled these grant no new powers.

Second, Leonen argues Mr. Duterte should use normal “calling out” power to deploy the army, not martial law. But this is a political, not legal, point.

Third, Leonen argues the wrong case. The issue is Mr. Duterte’s sufficient — not perfect—factual basis. Passing is 50 percent, not 90 percent. Justices thus gauge the big picture, not single factual errors.

Leonen goes far beyond facts to show Mr. Duterte interprets intelligence reports and the cultural context of Salafi-jihadis. He insists hundreds of armed men are terrorists and cannot possibly be rebels.

Even if he is right, we elected Mr. Duterte, not him. The Constitution allows Congress — not the Supreme Court — to review Mr. Duterte’s interpretation of facts. Because passing is only 50 percent, note nonfanatic scholars from Carpio to former solicitor general Florin Hilbay stop short of questioning factual basis in Marawi itself, a sure “gg.”

Fourth, Leonen imprecisely conflates martial law and calling out. He rightly asks why armed forces orders on martial law mix dismantling the New People’s Army, private armies and drug syndicates.

But the president may “call out” troops any time. Invalidating abuse of calling out is separate from invalidating martial law.

Fifth, Leonen breaks from centuries of martial law doctrine to search for new bases. He applied “void for vagueness” — a freedom of speech doctrine — to the martial law declaration’s text, an odd mix and match.

Nothing destroys an advocacy more than forcing far-reaching but weak arguments over measured but solid ones. Previously, Leonen argued the “National Pantheon” law prohibits the Marcos burial. All other justices, even dissenters, ruled this is a different cemetery from the Libingan ng mga Bayani.

If Leonen is right, we must impeach the entire Supreme Court for gross incompetence — they could not even find the right cemetery!

The Lagman decision’s shocking surprise was — and not all justices agree — that Supreme Court review of martial law must be all or nothing. If the Supreme Court upholds, geographic scope is left solely to Mr. Duterte. It claims to have no power to effect Carpio’s dissent, echoed by Sereno and Caguioa, that martial law is valid in Marawi but not all of Mindanao because of the decades-old doctrine that there must be “actual,” not just “imminent,” rebellion.

Does factual basis in Marawi thus allow Mr. Duterte to declare martial law nationwide and replace Batanes’ governor?

Martial law means replacing civilian government that broke down with the military. Carpio asserted — and Solicitor General Jose Calida agreed — that Mr. Duterte has no new powers under martial law where there is no actual fighting. This fits within Lagman and was echoed by concurring justices such as Presbitero Velasco.

If the Supreme Court explicitly adopts this on reconsideration, it would both preserve the commander in chief’s traditional latitude but deter abuse of martial law. Sadly, we are too fixated with Leonen’s tweets to pursue the real debate.

My read order: Del Castillo-Jardeleza-Carpio-Sereno-Velasco-Bernabe- Peralta-de Castro-Bersamin-Mendoza-Leonen-Caguioa-Tijam-Martires-Reyes.

React: [email protected], Twitter @oscarfbtan, facebook.com/OscarFranklinTan.