Christian Monsod and Florin Hilbay, an author of the Constitution and a former solicitor general, respectively, challenged martial law’s extension into 2018 with brilliant arguments. But they were defeated by “own goal” legal activism.
A martial law case is the reverse of a normal Supreme Court case. The Constitution’s Article VI, Section 18 allows only one attack: “sufficiency of the factual basis” to believe there is an actual — not merely threatened — rebellion.
Thus, raising legal arguments instead of dissecting facts turns a martial law case into a joke.
And “sufficiency” does not mean “correct.” The president wins merely by showing plausible basis, not even right judgment or indubitable facts.
The government narrative was, first, the Maute group is still active even though actual shooting in Marawi City had ended. It is regrouping and recruiting. Other leaders replaced the slain Maute brothers.
Second, the Turaifie group, Bangsamoro Islamic Freedom Fighters and Abu Sayyaf joined the rebellion. They reinforced the Mautes in Marawi then mounted attacks in other provinces.
Third, the New People’s Army exploited the Marawi attack to intensify its own decades-old rebellion, mounting its own attacks.
The counternarrative was simply that the rebellion already ended. Any regrouping, recruiting or even arguably unrelated attacks in other provinces are not “actual” rebellion—especially not the NPA who were not even in the original martial law declaration.
The real high court debate revolved around interpreting these facts. Monsod and Hilbay stressed (like my initial columns) martial law’s sole purpose is to allow the military to replace civilian government that broke down in a “theater of war,” and argued Marawi is no longer one.
Read Justice Noel Tijam’s point-by-point affirmation of the government narrative, then Justice Benjamin Caguioa’s point-by-point rebuttal.
Then read Senior Associate Justice Antonio Carpio’s powerful, concise dissent that the rebellion must have ended given the government’s victory announcements.
Next, read the moderate opinions. Justice Francis Jardeleza voted in favor of martial law but not the extension, arguing the facts changed and actual combat has ended. Justice Estela Perlas-Bernabe counters a rebellion has not ended if many of the rebels escaped and are still at large.
But you never focused on these — or held any congressman or senator accountable, beyond the Supreme Court — because former Bayan Muna Rep. Neri Colmenares, the National Union of People’s Lawyers and the House of Representatives minority added all sorts of pointless issues.
They argued martial law can be extended only once and only for 60 days, even though Article VI, Section 18 has no such restrictions. They protested Congress rushed debates and gave each legislator only one minute to speak, even though the Supreme Court cannot police Congress’ deliberations. They raised unproven human rights violations irrelevant to analyzing rebellion.
These were so weak even dissenting justices threw them out. The own goals were successful only in muddling both the Supreme Court case and broader public debate.
Few understood dissenting justices feared martial law could be extended endlessly because the majority was too lenient in interpreting facts — not because any legal restriction on extension was ignored.
And so continues a winning streak of own goals that spans the cases for the original martial law declaration, Marcos burial, US Enhanced Defense Cooperation Agreement — even the Cybercrime Act case where Colmenares told justices he is not familiar with the internet.
The harsh lesson for budding advocates is to avoid Monsod and Hilbay’s fate by not wasting time building brilliant legal arguments no one cares about.
What is crucial are cute-sounding theories in press conferences that fit in one tweet. If someone notices you make no sense, simply pontificate about how corrupt the Supreme Court is.
No matter how many own goals you score, the data prove that blind fanatics and diehard supporters will exalt you as a hero and legal luminary.
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