Dangerous doctrine
For the second year running, and while the midterm elections are about to be held, Mindanao will continue to be under military rule after the Supreme Court voted 9-4 to uphold the third extension of martial law until the end of 2019.
In greenlighting the extension, the highest court of the land has shown how little it regards its power under the Constitution to “review… the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus.”
A full week since the announcement of the ruling on Feb. 19, the text of the decision has yet to be released. But Chief Justice Lucas Bersamin provided a glimpse of the majority thinking in the tribunal when he declared in a public function that government reports on violence in Mindanao, as basis for the new extension, need not be accurate.
You heard that right: “Whether that information is true or not is irrelevant… accuracy is not the question here,” said Bersamin. “The question is, what is the information that the President acted upon… When you note some inconsistencies or weaknesses, that is not sufficient to undo the determination of the President.”
The inaccuracies Bersamin couldn’t be troubled with were unearthed by Associate Justice Alfredo Benjamin Caguioa, who diligently dug into the military reports Malacañang had submitted. During the oral arguments on four petitions challenging the martial law extension, Caguioa questioned the many inconsistencies in the records, such as several violent incidents with no perpetrators but which were later attributed to the Abu Sayyaf; other incidents attributed to both communist rebels and the Abu Sayyaf; and at least three instances when Abu Sayyaf members killed each other. “How does that support the contention that rebellion persists?” Caguioa asked.
The petitioners, led by former election commissioner Christian Monsod and Albay Rep. Edcel Lagman, pointed out that there was no actual rebellion happening in Mindanao, contrary to government assertions. The situation has in fact improved, said Monsod, after the Marawi siege ended in October 2017, and barangay and Sangguniang Kabataan elections were even held in May 2018.
Former Senate president Aquilino Pimentel Jr., a Mindanaoan and ally of the President, also called for the lifting of martial law in parts of Mindanao, such as Cagayan de Oro, Davao and the Caraga region. How can investors come, Pimentel said, when there is supposed to be chaos in all of the island?
In Bersamin’s view, however, Malacañang’s reports can be lies for all they’re worth—but all that matters is whether the President believed them, and acted on that basis. In which case, the chief executive’s action is then rendered essentially above scrutiny, reproach or review.
Wait a minute: Isn’t that stance basically an abandonment of the constitutional duty of the Court precisely to look into “the sufficiency of the factual basis of the proclamation of martial law…” — in other words, to check whether the rationale the administration cited was true or not?
And how could the Court ascertain such factual basis if the supporting evidence presented before it is inaccurate — but it then refuses to call into question that inaccuracy?
If the Court shirks its duty to look at the facts independently and just take the President’s word for them, isn’t that giving the President unprecedented leeway to lie his way through governance, while the Supreme Court stands aside and gives him the thumbs-up? (A historical example: Juan Ponce Enrile’s fake ambush, stage-managed by Marcos to highlight supposed lawlessness and justify his power grab via martial law.)
Checking the chief executive’s hand is precisely the duty of the other branches of government. But the Court’s blithe imprimatur on baseless martial law extensions risks an “undue expansion and possible abuse of the vital presidential power,” warned Monsod, one of the very framers of the 1987 Constitution. “It sets a dangerous precedent of normalizing an emergency power that is only brought about by the law of absolute necessity.”
Bersamin’s disturbing doctrine of uncritical deference to the so-called wisdom of the President amounts to dangerously normalizing not only perpetual martial law, but also the notion of strongman rule.
Mr. Duterte could resort to the same Marcosian reign of abuse and duplicity, but, as things stand, the court of last resort has decided it will not inconvenience him in any way with questions about truth and fact.
