The Court and martial law

2. A REASONABLE MINORITY

Four justices dissented from the Supreme Court’s majority decision in the Lagman vs Medialdea martial law case, while all 10 of the justices who joined the majority wrote separate opinions. This embarrassment of jurisprudential riches weakens the ruling, not only because the dissents were reasonable but also because some of those who voted with the majority concurred only in the result.

Many of the opinions, whether for or against, quoted Senior Associate Justice Antonio Carpio. Like other opinions that found President Duterte’s Proclamation No. 216 constitutional, the ruling itself, written by Associate Justice Mariano del Castillo, referred repeatedly to Carpio’s dissenting opinion in Fortun vs Arroyo, the first-ever Court decision on the exercise of martial law under the 1987 Constitution. The dissenters referenced that dissent — as well as Carpio’s finding in the present case that actual rebellion exists in Marawi City.

Carpio himself voted to declare the martial law proclamation partially unconstitutional “as to geographic areas of Mindanao outside of Marawi City.” Chief Justice Maria Lourdes Sereno and Associate Justice Alfredo Benjamin Caguioa found the proclamation justified in Lanao del Sur, Maguindanao, and Sulu, but unconstitutional when applied to the rest of Mindanao. (A quick note: The country’s second biggest island is almost three times the size of Taiwan.) Associate Justice Marvic Leonen voted to reject the proclamation as entirely unconstitutional.

Carpio’s dissent, which (“Inception”-like) includes a final section quoting President Duterte’s reaction to the Court’s decision in the present case, took issue with the majority’s blind trust in the President. “Justices of the Court took an oath to preserve and defend the Constitution. Their oath of office does not state that they must trust the President when he declares martial law or suspends the privilege of the writ. On the contrary … the 1987 Constitution expressly authorizes and specifically tasks the Court to review the judgment of the President … The 1987 Constitution would not have entrusted this specific review power to the Court if it intended the Justices to simply trust the judgment or wisdom of the President. Such obeisance to the President by the Court is an abject abdication of a solemn duty imposed by the Constitution.”

Sereno played a variation on the same theme of abdication: “The majority has effectively given a carte blanche to the President to exclusively determine this matter. Validating a Mindanao-wide coverage is indeed convenient for the Court, but it is not right. If, to use the words of the ponencia, the most important objective of Article VII, Section 18 is to ‘curtail the extent of the power of the President,’ then this Court has miserably failed.”

Carpio, Sereno and Caguioa all noted that neither the Solicitor General nor the defense and military officials who testified in a closed session offered proof that public safety required extending martial law coverage to all of Mindanao. Caguioa wrote: “The Executive had the onus to present substantial evidence to show the necessity of placing the entire Mindanao under martial law. Unfortunately, the Executive failed to show this. In fact, during the interpellations, it was drawn out that there is no armed public uprising in the eastern portion of Mindanao, namely: Dinagat Island Province, Camiguin Island, Misamis Oriental, Misamis Occidental, Agusan, Zamboanga, Davao, Surigao, Pagadian, Dapitan.”

These are powerful arguments, all the more so for being reasonable.

Even some of those who voted with the majority had reservations. For instance, Associate Justice Teresita Leonardo-De Castro was moved to write to “register my vigorous objection to the implication that a petition under Section 18, Article VII is the only appropriate proceeding wherein the issue of sufficiency of the factual basis of a declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus may be raised.” This is an important point, and may prove instrumental when dealing with abuses arising, inevitably, from the imposition of martial law.