How can Supreme Court cancel martial law?

Singapore—Sen. Franklin Drilon never thought he would lead the Resistance. Instead of slowly fading into the Force after topping the 2016 Senate elections and four terms as Senate president, he debates the revered retired justice Vicente V. Mendoza on prohibited warrantless arrests and stresses that not even Defense Secretary Delfin Lorenzana thought martial law was necessary.

A judicial attack is as tricky as a Death Star trench run.

Plan A is to force a Congress joint session. The Constitution’s spirit demands one, both to check the president and to ensure martial law’s basis is publicly debated.

“Congress, voting jointly… may revoke such proclamation,” under Article VII, Section 18. The president must send a report to Congress within 48 hours. It must convene in 24 hours if in recess. Its review is surely as urgent.

But then Justice Artemio Panganiban ruled in Defensor vs Guingona: “[Under] separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work.”

Section 18 has no explicit procedure for not revoking martial law. Ask the Supreme Court to force a vote, with no explicit constitutional rule, after the House and Senate separately voted to support martial law? It may well wait 47 more days, when Congress must vote to extend martial law or it expires.

Plan B invokes Section 18: “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law.” It may review factual basis only, not recklessness or necessity.

This allows two attacks. First, Section 18 only allows martial law for rebellion or invasion. Did the Maute group raise IS flags and intend to create a new government? A million armed terrorists cannot justify martial law unless they are rebels.

Second, every Supreme Court case requires “actual” rebellion, not just threat. If they attacked only Marawi, is there factual basis in Davao or Zamboanga, more so Cebu or Manila?

But reviewing a commander in chief’s discretion is delicate. Unelected justices require plausible basis only, not absolute proof, because merely disagreeing is not a judicial ground to revoke martial law.

On martial law in 2009, Senior Associate Justice Antonio Carpio powerfully dissented, in the 2012 Fortun case, that the Ampatuan private army was fleeing prosecution, not rebelling. But the Supreme Court declined to rule and may again decline to question IS flags.

Lorenzana’s opinion is not the factual basis itself. Nor is the allegedly beheaded police chief’s survival and other discrepancies in President Duterte’s report to Congress. Factual basis must be reviewed as a whole.

In any case, a Supreme Court challenge is a valuable venue to ensure martial law’s basis is publicly scrutinized.

Plan C is to attack the shield generator, supply lines or Darth Vader’s shuttle en route. Instead of challenging martial law as a large, abstract fear, one may always question specific acts. This changes the doctrinal battlefield and avoids the inherent topographical disadvantages in Plans A and B.

As I wrote last week, martial law is governing an area through the military when the civilian government cannot function. So why is martial law necessary, given that the government has not exercised any power that could only be done under martial law? All acts so far may be done without martial law (such as deploying troops) or may not be done even with it (such as warrantless arrests not for rebellion).

In a May 26 Davao Today report, Davao police threatened: “organizers of groups that will stage protests or rallies will be arrested if caught making the public nuisance.” A court challenge here would be an automatic win. The Ombudsman has threatened to prosecute officials who perform acts prohibited even under martial law. The Commission on Human Rights has promised to monitor these.

Readers agonizing over the President’s threat to ignore the Supreme Court recall that rebellions are built on hope. The Death Star blueprints lie in Carpio’s Fortun dissent.

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