A legal feast on ML

The 14 separate opinions of the magistrates in Lagman vs Medialdea (July 4, 2017) may be indigestible legal gobbledygook for lay people, but they constitute a veritable legal feast for law scholars. They will be relevant when the putative challenges to the extension of Proclamation No. 216 (P216), the martial law (ML) edict, are reviewed.

Concurring opinions. Not having the space to discuss all of them, let me discuss for now the concurrences of Justices Estela M. Perlas-Bernabe and Francis H. Jardeleza which agreed with the ponencia that P216 has sufficient factual basis for the whole of Mindanao. Nonetheless, they explained that, being  sui  generis  (one of a kind), the “appropriate proceeding” to contest P216 should not be bound by ordinary precepts and standards.

Thus, they opined that the government, not the petitioners, bears the burden of proving the “sufficiency” of the facts that led the President to issue P216, because, unlike the petitioners, it is privy to information which, for security reasons, is “classified.” This point is supported by several other justices.

Several justices also joined them in holding that P216 should be reviewed via the sui generis standard of “reasonableness,” which J Jardeleza defined as “such evidence that is adequate to satisfy a reasonable mind seeking the truth (or falsity) of its factual existence,” not via the “probable cause” (used by prosecutors in assessing criminal charges) espoused by the ponencia and by the dissent of Justice Antonio T. Carpio.

To be discarded, too, as a consequence are the usual judicial review thresholds of “substantial evidence” (used in administrative cases), “preponderance of evidence” (used in civil cases), “proof of guilt beyond reasonable doubt” (used in criminal cases), and “grave abuse of discretion” (used in reviewing acts of all agencies of the government).

Worth reading, too, is J Jardeleza’s distinction between “state of rebellion” and “crime of rebellion” as the basis of ML, and his persuasive justifications on why the public should not be excluded during oral arguments on ML petitions.

These fine explanations and distinctions may appear nitpicking to the uninitiated, but they make a lot of legal sense because each of them carries specific legal meanings requiring specific legal treatments, in the same way that the various types of cancers require specific medical solutions.

Their prudent use in the future may result in a decision different from the present one, if and when new declarations (or extensions) of ML and/or new suspensions of the privilege of the writ of habeas corpus are issued.

Concurring and Dissenting. CJ Maria Lourdes P. A. Sereno’s and J Carpio’s pieces are titled “Dissenting Opinion,” yet they concurred with the ponencia on the sufficiency of the factual bases of P216. They disagreed mostly on the territorial coverage thereof, with the CJ (along with J Caguioa) limiting such coverage to Lanao del Sur, Maguindanao and Sulu, and J Carpio to Marawi only. In this sense, their opinions, I think, should be titled “Concurring and Dissenting.”

This characterization is important because their opinions contain legal gems which the majority could have adopted, like the CJ’s comprehensive dissertation on the procedure for arrests and seizures, the rights of accused persons, and the government’s power to seize private property, to freeze bank accounts, to restrict media, etc.

Likewise valuable is J Carpio’s discussion of the four general consequences of martial law.

Dissenting opinion. In fine, the only true dissent is the 92-page opus of Justice Marvic M.V.F. Leonen. Worth reading and rereading is his main theme that the Court “cannot grant the President undefined powers of martial law over the entire Mindanao region” and that it “should be stricter, more precise, and more vigilant of the fundamental rights of our people.”

Worth reflecting on, too, is his claim that “martial law as proclaimed is vague, thus unconstitutional,” as well as his spirited exposition on the complex “void for vagueness” and “void for overbreadth” doctrines as they may apply to ML. His peregrinations may be lonely now, but they could be cheerful at another time.

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