What We Should Watch Out For in the Supreme Court’s Mindanao Martial Law Ruling

Elpidio V. Peria
9 July 2017


photo : EVPeria

The Supreme Court has beaten by a day its 30 day deadline to issue a ruling on the Mindanao Martial Law petitions and in bullet points are what the Supreme Court said in a decision dated 4 July 2017, in an 11-3-1 result which affirmed President Duterte’s Proc. 216 declaring martial law all over Mindanao

• The petitioners, particularly the legislators, have standing, that requirement in litigation which allows any court case to proceed;

• The petitions are proper and the “appropriate proceeding” to question the sufficiency of the factual basis of martial law; these petitions are characterized by the Supreme Court as “sui generis”, or what is usually meant as a unique or “of its own kind” category independent from the enumeration of the powers of the Supreme Court in article VIII of the 1987 Constitution; Justice Leonen, the lone dissenter, whose opinion for now matters only for purposes of academic discussion, said that petitions under Rule 65 of the Rules of Court, which questions any decision of a government official on the ground of grave abuse of discretion, may also proceed;

• In reviewing the sufficiency of the factual basis, the Court considers only that the information and data available to the President prior to or at the time of the declaration. It is not allowed to undertake an independent investigation beyond the pleadings.

• The SC can simultaneously exercise its power of review with, which is independent from, the power of Congress to revoke or extend the declaration

• The judicial power to review sufficiency of the factual basis does not extend to the calibration of the President’s decision of which among his graduated powers he will avail of in his decision; but later in this part of the decision, there is this paragraph that we should watch out for as it may be prone to abuse later :

“In a state of martial law, the President exercises police power which is normally a function of the legislature, with the military’s assistance, to ensure public safety and in place of government agencies which for the time being are unable to cope with the condition in a locality which remains under the control of the State”

• Proclamation No. 216 cannot be challenged using the vague for vagueness doctrine as Proc. 216 does not regulate speech, religious freedom or other fundamental rights. It regulates conduct, not speech. This is a head scratcher – isn’t speech not conduct by voice and actions and words? But here is another paragraph in this part of the ruling we should watch out for :

“.. the lack of guidelines (for the Proc. 216) does not make it vague; there is no need to determine the constitutionality of the operational guidelines; any act committed under said orders in violation of the Constitution should be resolved in a separate proceeding.”

Justice Leonen, in his dissent, point out that in these operational guidelines, the military is also given the authority to : dismantle the NPA, illegal drug syndicates, peace spoilers and other lawless armed groups which are not in any way linked to the purported rebellion in Marawi; so, if any abuses are committed in pursuit of these actions by the military, one has to file separate cases for these, this is what the SC is saying.

• As to the scope of the Supreme Court’s power to review, the Court merely said that : “the Court cannot go further than satisfy itself not that the President is correct but whether it did not act arbitrarily; the Court is limited only to the “sufficiency of the factual basis” text which is based on facts or information known by or available to the President at the time he made the declaration, which facts or information are found in the proclamation as well as the written report submitted by him to Congress; … in determining the sufficiency of factual basis, the Court should look into the full complement or totality of the factual basis, and not piecemeal or individually. But after this lengthy discussion, this is the one that takes the cake, sort of, here the Supreme Court as a whole prostrates itself before the President as it says: “ neither should the Court expect absolute correctness of the facts stated in the proclamation and in the written report of the President”. Here’s another surreal statement after that surrender : “ it is irrelevant if subsequent events prove that the situation had not been correctly reported to him.”

Justice Leonen, in his lonesome dissent, was scathing as he said the government’s presentation of facts and their arguments of their sufficiency are wanting; first, there are factual allegations that find no relevance to the declaration of martial law; second, there are facts that have been contradicted by open-intelligence sources; third, there are facts that have no basis as they are not supported by credible evidence; Justice Leonen put forward his own test for factual sufficiency, he said, facts are sufficient when :

(a)It is based on credible intelligence;
(b)Taken collectively establishes that there is actual rebellion and that public safety requires the suspension of the privilege of the writ of habeas corpus

• The main ruling’s prerequisites for determining the sufficiency of factual basis are the following :

(a) Actual rebellion or invasion;
(b) Public safety requires it; these (a) and (b) must concur
(c) There is probable cause for the President to believe that that is actual rebellion or invasion

• The SC said there is reasonable basis to believe that Marawi is only the staging point of the rebellion, both for symbolic and strategic reasons. Marawi may not be the target but the whole of Mindanao. As mentioned in the Report, “[l]awless armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines, and backdoor passages;” there is also the plan to establish a wilayat in Mindanao by staging the siege of Marawi

• The SC said that terrorism neither negates nor absorbs rebellion. To expand on this heading, the SC said rebellion may be subsumed under the crime of terrorism, which has a broader scope covering a wide range of predicate crimes. In fact, rebellion is only one of the various means by which terrorism can be committed.

Later on its explanation on this, the SC said this: even assuming that the insurgency in Marawi City can also be characterized as terrorism, the same will not in any manner affect Proclamation No. 216. Section 2 of Republic Act (RA) No. 9372, otherwise known as the Human Security Act of 2007 expressly provides that  “[n]othing in this Act shall be interpreted as a curtailment, restriction or diminution of constitutionally recognized powers of the executive branch of the government.” Thus, as long as the President complies with all the requirements of Section 18, Article VII, the existence of terrorism cannot prevent him from exercising his extraordinary power of proclaiming martial ‘ law or suspending the privilege of the writ of habeas corpus. After all, the “extraordinary powers of the President are bestowed on him by the Constitution. No act of Congress can, therefore, curtail or diminish such powers.


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