Mindanao Martial Law Petitioners Had A Difficult Day Fielding Procedural Questions in the SC

Elpidio V. Peria
13 June 2017

(PHOTO: EVPeria)

In day 1 of the Philippine Supreme Court oral arguments today on the Mindanao Martial Law petitions questioning the sufficiency of the factual basis for the declaration of martial law by President Duterte, we left while Justice Bersamin, the fifth Justice to interpellate from the morning’s oral argument, was still grilling Atty. Cortez, one of the lawyers of the Petitioners, as we don’t want to get stuck in traffic from Taft Ave to Banlat, T. Sora, but what stood out from the exchanges today between the Justices and the lawyers of the petitioners was the uncertainty faced by the Supreme Court Justices on whether there is an “appropriate proceeding” before the Supreme Court, for them to review the President’s declaration of martial law in Mindanao.

In the initial presentation of the petitioners’s arguments led by Congressman Edcel Lagman in the morning, he briefly touched on what is the procedural basis for their legal action and he just said that this is the appropriate proceeding as there is a special and specific grant of jurisdiction by the 1987 Constitution to the Supreme Court which is different from what is provided for in sec. 1, Art. VIII of the 1987 Constitution to the Judicial Department. That provision in sec. 1, Art. VIII is usually memorized by law students for the bar exam as the ultimate grant of authority by the 1987 Constitution to the Supreme Court to exercise its judicial power “which includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amount to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

While this appeared to be clear-cut and easy, the series of questions by the second Justice to interpellate Congressman Lagman, Justice Bernabe, laid out the problems with that stance, who initially asked : how will you treat this petition, to which Cong. Lagman said, in a class by itself, your Honor.

She then followed up, she said that in the 1987 Constitution, the term used is “appropriate proceeding”, isn’t this a special proceeding to establish a status or fact, to which Cong. Lagman said : the transcript of the Constitutional Commission should have clarified that, but this is only with respect to the sufficiency of the factual basis for the declaration of martial law.

Not satisfied, Justice Bernabe quipped : couldn’t the framers have used the term “appropriate action” instead? Cong. Lagman said that but such a term is for ordinary petitions but this petition is not such petition.

Justice Bernabe then asked, what do you mean by “sufficient factual basis”, isn’t this the same as “proof beyond reasonable doubt” or “preponderance of evidence”, to which Cong. Lagman responds, the Constitution gives freedom to the Supreme Court to decide what kind of standard to apply in determining the sufficiency of factual basis. Later, Cong, Lagman adds, it should be probable cause based on the dissent of Justice Carpio in the Fortun v. Macapagal-Arroyo.

This kind of question by Justice Bernabe indicated one of the procedural issues faced by the Supreme Court, on what kind of evidentiary standard they should apply to this kind of petition. This evidentiary standard is the usual standard used by Philippine courts in deciding cases, if it’s “proof beyond reasonable doubt”, it’s usually used in criminal cases where the liberty of a person is about to be deprived and this is a high threshold of evidence such that if there is any small amount, which courts and lawyers usually call scintilla or very small amount, of doubt, on the guilt of the accused, the accused is set free. If it’s preponderance of evidence, which is used in civil cases, this is determined by how many pieces of evidence are there to support the winning side, compared to the losing side, which usually does not have as many pieces of evidence compared to the winning side.

On this point of probable cause mentioned by Cong. Lagman, Justice Bernabe retorted, but that’s for the President to use when she gathers facts which she may then use as basis to declare martial law, that is not for the Supreme Court.

She then asked, who has the burden of proving sufficiency of factual basis, to which Cong. Lagman says, the respondents, or the Party that makes the declaration of martial law.

To which response, Justice Bernabe asked, so you don’t apply the dictum that who alleges something has to prove what he is saying and on this, we somehow noticed that Cong. Lagman seemed at a loss for words and then Justice Bernabe followed that up with : what about the dictum that government actions are presumed valid and the burden is on the other side which alleges the reverse of that presumption? Actually here, it seemed Cong. Lagman did not answer or we may have missed taking notes at this stage.

Justice Bernabe was just warming up, she asked another point – what’s the deference that the Court should give to the President given that he has access to the facts, to which Cong. Lagman said the Court should give the President ample deference but the Supreme Court will have to exercise its special and specific jurisdiction to determine the sufficiency of the factual basis of the declaration. Hearing Cong. Lagman say this at this stage indicates to the skeptic that actually Cong. Lagman does not anymore know what he is saying and he is now relying on formulaic words from the Constitution hoping perhaps that this kind of questioning will stop.

But here’s more from Justice Bernabe : should we not give weight to those reports made by the President to Congress? Cong. Lagman said that the sufficiency of the factual basis should be based on Proclamation 216 and the President’s Report to Congress.

There were a lot more questions asked by Justice Bernabe on other aspects of the case but one important procedural point asked by Justice Bernabe which surprisingly she did not press as hard as the other procedural issues she raised was her question on the source of the reports of petitioners for their allegations that some incidents in the President’s report to Congress was inaccurate, particularly the incidents in the Amay Pakpak Hospital and in the Marawi Public Elementary School, to which Cong. Lagman only said these are from the disclaimers of the people involved in these mentioned entities.

Later in the afternoon, this was hammered on by Justice Bersamin, particularly on whether the Court can take judicial notice of these incidents, but we did not anymore take note what Atty. Cortez had to say on it as we already left, it was already 4pm. What stuck out to our recall in the earlier exchanges between the two was the difficulty encountered by Atty. Cortez in giving concrete answers to Justice Bersamin, like when he asked, so how many pages do you think the Proclamation should be so that there is sufficient factual basis for such declaration, to which Atty. Cortez did not give any concrete answer.

One final point on the procedural issue pointed out in the exchange between Justice Leonen and Atty. Marlon Manuel of the Alternative Law Groups was on the question by Justice Leonen that since the grant of power to the Supreme Court by the 1987 Constitution is supposed to be exclusive, and this is what is stated in sec. 1 of Article VIII which deals with the Judicial Department, but if the Supreme Court will then now agree with petitioners that the grant of power to the Supreme Court in the martial law provision of the 1987 Constitution in sec. 18 is another grant of power to the Supreme Court, but of its own sui generis or specific, particular kind which is not the same as what is stated in sec. 1 of Article VIII, then, all along the Supreme Court is wrong in understanding that such enumeration in sec. 1 of Article VIII is exclusive, since in reality it is not exclusive.

The answer by Atty. Manuel to this is brilliant, he just said, yes, that power is not exclusive, especially so when the statement granting that power is predicated by the verb “includes”. To one reading this sentence, to have that word means there are other enumerated powers which can be found in the document we are reviewing, in this case the 1987 Constitution.

Over-all, it was a great day for the 1987 Constitution today at the Supreme Court, and we are lucky, or perhaps we are now benefiting from the lessons of the previous Martial Law, that the Supreme Court can still function as it did today and it is not in any way in danger of being rendered irrelevant by these so-called vicissitudes and passions of the times


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