1. A DIFFERENT MAJORITY
The Philippines’ legal community is still coming to terms with the landmark Supreme Court ruling on the first of the martial law cases; it cannot be fully understood without a study of the majority decision and all 14 separate opinions.
But the Constitution, which the “sovereign Filipino people” did “ordain and promulgate,” is too important to be left to constitutionalists; all citizens must do their share in helping the President, whose powers both ordinary and extraordinary ultimately emanate from them, “preserve and defend” the Constitution.
That is, at bottom, what is at stake in any decision upholding, or rejecting, the constitutionality of the exercise of the Commander in Chief’s martial law powers. Will the ruling keep the founding document’s integrity, or will it tear a large hole in it? The answer should be of the most serious concern not just to the lawyers who argue our cases, but indeed to all of us.
Thus, criticism of the majority decision in the Lagman vs Medialdea case as overbroad and unduly deferential to the Executive does not mean that the critics cannot countenance or even imagine a decision that would have supported the Duterte administration’s legal position. As the multiple separate opinions themselves prove, simple black or white answers will not do justice to this vital, complicated case.
Associate Justice Francis Jardeleza’s separate opinion, for instance, makes a cogent argument for the President’s necessary imposition of martial law in all of Mindanao, but without encouraging him to run amuck with it. If this had been the majority decision, rather than merely a separate concurring opinion, the outcry against the Court’s finding of sufficient factual basis for the proclamation of martial law would have been much less, and more muted.
Jardeleza begins with an insightful appreciation of Art. VII, Sec. 18, one of the crucial antidictatorship provisions of the post-Marcos Constitution. “The provision is a microcosm of the system of checks and balances fundamental to our republication government.”
This framework forces the realization that all three branches of government have a role to play in the exercise of the martial law power and the suspension of the privilege of the writ of habeas corpus. (Will this lead to a Court ruling, in the second martial law case, finding both chambers of Congress remiss in not convening a joint session after the proclamation was issued? We shall see.)
He proceeds: The Court’s authority to revoke a President’s proclamation of martial law for lack of a sufficient factual basis is sui generis. “It involves inquiry into the factual basis of the act, not a review of errors of law or a determination of lack or excess of jurisdiction or grave abuse of discretion.”
Then, to the “sole substantive issue” of whether there is sufficient factual basis for the proclamation, Jardeleza proposes “a different standard of review.” Instead of the standard of probable cause relied on by the majority decision, which he argues is “inapplicable in assessing the public safety requirement” (one of the two essential conditions before the President can impose martial law, the other being the existence of actual rebellion or invasion), he raises the standard of reasonableness. The majority decision infamously allowed the President unusual leeway to impose martial law anywhere in the Philippines, as long as the two conditions are met. Jardeleza’s standard would likely not allow that: “The standard may be restated as such evidence that is adequate to satisfy a reasonable mind seeking the truth (or falsity) of its factual evidence. This is a flexible test that balances the President’s authority to respond to exigencies created by a state of invasion or rebellion and the Court’s duty to ensure that the executive act is within the bounds set by the Constitution.”
As to the territorial scope of martial rule, Jardeleza offers a view that recognizes Executive primacy without confessing, as the majority decision did, to either judicial defeatism or distrust in news reports. “The executive’s assessment of the nature and level of threat posed by these ISIS-inspired terror groups in Mindanao is not incompatible with local and foreign media reports and publicly available research papers.”
In all, a reasonable perspective. It would have made for a different, and better, majority decision.