On ML, will SC bend again?

The Supreme Court decision declaring Proclamation No. 216 constitutional ended with a ringing appeal.

Associate Justice Mariano del Castillo’s ponencia found “sufficient factual bases” for the imposition of martial law on the entirety of Mindanao and very controversially ruled that “the President’s duty to maintain peace and public safety is not limited only to the place where there is actual rebellion” but “extends to other areas where the present hostilities are in danger of spilling over.”

This ran counter to the clear language of the Constitution, but at least it is based on the finding that there was in fact an actual rebellion in Marawi City.

The conclusion was an appeal to emotion: “Let us face up to the fact that the siege in Marawi City has entered the second month and only God or Allah knows when it would end. Let us take notice of the fact that the casualties of the war are mounting …. Can we not sheathe our swords and pause for a while to bury our dead, including our differences and prejudices?”

The fact that the conflict in Marawi was ongoing at the time was a crucial factor in how a majority of justices decided, back in July.

It provided justification for the controversial findings, including the Court’s self-emasculation (the Del Castillo majority essentially ruled that the Court did not have the resources to challenge the Executive’s assertion that an actual rebellion existed) and the unusually wide latitude allowed the Executive (“it is not fair to judge President Duterte based on the ills some of us may have experienced during the Marcos-martial law era” — an abdication of our collective responsibility to learn the lessons of history).

But now that the siege of Marawi is over, and the “actual rebellion” used to justify Proclamation No. 216 no longer exists, will the Court still find the second, and this time longer, extension, of the proclamation’s effectivity constitutional?

Several issues are at stake in the new case filed at the Supreme Court by opposition lawmakers, who assert that the one-year extension of martial rule in Mindanao, approved by the chambers of Congress assembled in joint session but voting separately, violates the Constitution. But the main issue is the end of the Marawi conflict.

The Court in Lagman v. Medialdea repeatedly used the fact that there was an actual rebellion in Marawi to justify the imposition of martial law and the suspension of the privilege of the writ of habeas corpus. Now that the Maute-led, Islamic-State-inspired rebellion in Marawi has failed, one of the two necessary conditions for the President’s exercise of his martial law power no longer exists. Will a majority of justices still find the extension constitutional?

The Executive has confused the main issue by belatedly including the long-running communist insurgency as an additional reason to justify the extension of military rule in Mindanao. We hope that the Supreme Court justices, whatever their own political inclinations or practical considerations may be, can see through this obvious maneuver: If the Executive now asserts that martial law must be imposed because of the failure of one of President Duterte’s signature initiatives — negotiating peace with the communist insurgents — then the Court must deliberate on the constitutionality of the assertion from the beginning. It cannot be factored in like a secondary detail simply to justify extension.

The ruling in Lagman v. Medialdea also made repeated references to the 60-day restriction as one of the safeguards put in place in the Constitution.

Back in July, the Court confessed that it was “in a quandary and can only speculate whether the 60-day life span of Proclamation No. 216 could outlive the present hostilities in Mindanao.”

Will its timid conception of the new and specific role assigned to it by the Constitution still leave it speculating whether a 365-day life span of the extension “could outlive the present hostilities,” which no longer includes the actual rebellion that prompted Proclamation No. 216 in the first place?

The Court may not think it has the “competence and logistical machinery,” the “military background and technical expertise,” to challenge the factual bases of a presidential proclamation of martial law, but surely it has both the capacity and the duty to say when the constitutional requirements in the exercise of a governmental power are not met. Or what’s a Supreme Court for?