Martial law and a living

Constitution
With this column, I begin a series on the legal issues surrounding President Rodrigo
Duterte’s Proclamation No. 216 where he declared martial law throughout the
Philippines. In the proclamation, he cited as rationale for the declaration the events of
Marawi City on the week of May 22, 2017 when hostilities started broke out between the
Armed Forces of the Philippines and a band of fighters coming from the Maute clan,
Abu Sayyaf, and other groups.

The 1987 Constitution was drafted with the Philippine experience of martial law under
President Ferdinand Marcos still fresh in the mind of the Constitutional Commission
(Concom) members and the public. In fact, some argued then that the President should
not be given the power anymore to declare martial law. After all, we have just seen then
how that power was abused and how it was enabled a dictatorship that lasted for 14
years. In spite of these misgivings, the ConCom included in the Constitution the power
of the President to declare martial law. But such power was severely curtailed and
safeguards were instituted to ensure that the Marcos experience will not be repeated.

These constitutional limitations on the martial law power would have been tested for the
first time in December 2009, the first time the martial law powers of the 1987
Constitution was exercised. President Gloria Macapagal Arroyo had declared martial
law in the province of Maguindanao in the aftermath of the Ampatuan massacre. In that
case, it was argued that the military was needed to seize control of the civilian
government in the province which was controlled by the Ampatuan family whose
patriarch and members were accused of carrying out the massacre of 57 persons from
a rival and political family and from media.

Immediately after the Maguindanao declaration, Congress convened a joint session and
prepared to vote on revoking or affirming the president’s decision. But this was
preempted by the lifting of martial law, less than two weeks after it was imposed.
Likewise, the petitions filed before the Supreme Court were later dismissed as moot and
academic, although under that case of Fortun vs. Arroyo, the Court said that
congressional review was automatic and judicial review was mandatory. In that case,
Justice Carpio wisely observed that the Court should have taken the opportunity to lay
down guidance on martial law so that future Presidents would be guided.

Today, there are now two sets of petitions before the Supreme Court; one on the validity
of the declaration, the other on whether or not Congress should convene to review the
declaration of martial law and to revoke it if there is a majority for that option. In both
cases, the heart of martial law—what it is not and what it is—are at issue. Hopefully, this
time the Court will establish good precedent on the legal issues at hand. Our institutions
and citizens need clarity and assurance about martial law. We need to know that it will
work to defeat the problem of terrorism. We need to be comforted that there will be no
abuses and our freedoms will not be taken again from us.

Under the 1987 Constitution, martial law can be declared when two conditions concur
First, there must be actual case of invasion or rebellion; (2) such declaration is required
by public safety. Invasion, as defined in public international law, is an act of aggression
committed by one state against another. Thus, even if there might be foreign terrorists
fighting in Marawi City, that cannot be considered invasion. However, there is a strong
case for the acts of the Maute group in Marawi to be considered actual rebellion given
the purpose of those acts.

It does not matter how the hostilities actually begun so long as there was this intent to
remove, through armed means, this iconic city in Lanao del Sur from the Philippines to
make it a province of the Islamic State of Iraq and the Levant (ISIL, also known as ISIS).
It seems also that there is no question that public safety was/is seriously threatened in
Marawi City, justifying the declaration of martial law. In my view, the argument that there
was technically no rebellion in Marawi does not hold water. On a policy level, whether
martial law is the best option rather than just the sending out of the armed forces is of
course something that can be debated.
The coverage of martial law is a big issue in the first petition on the validity of martial
law, filed by several Representatives and individuals led by Congressman Edcel
Lagman. There is nothing in Proclamation No. 216 and in Duterte’s report to Congress
that establish the two conditions required by the Constitution to justify a martial law
declaration: (1) actual rebellion, (2) that created serious threat to public safety that
justify martial law.

From a procedural point of view, within 48 hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President is mandated
to submit a report in person or in writing to the Congress. He has done that. This was
supposed to be followed by both Houses of Congress then convening jointly and if it so
desired, by a vote of at least a majority of all its Members in regular or special session,
revoke such proclamation or suspension, which revocation shall not be set aside by the
President. Unfortunately, for reasons that is difficult to understand, the leaders of the
Senate and the House of Representative have refused to convene, abdicating their
constitutional duty. This issue is also now before the Supreme Court through a petition
filed by a group of lawyers and individuals led by former Solicitor General Florin Hilbay.

As for the Supreme Court, the Constitution grants it the power to review, in an
appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus or the extension thereof. The Court has been given a deadline of 30 days from
the filing of the petition to promulgate its decision.

Finally, the 1987 Constitution is clear what martial law does not do: it does not suspend
the Constitution, especially the Bill of Rights. It does not allow military court to try
civilians (as was done during the Marcos era) except when civilian courts no longer can
function; it does not abolish the national and local legislatures. Civilian authority, at the
national and local levels (except if the latter collapses), will always reign supreme. What
martial law is —whether in fact, as I suspect and has now been affirmed by the Solicitor
General and several Justices, it is just an amplified version of the calling out of the
armed forces power of the President—will hopefully be defined by the Court in their
forthcoming decision.

In the next few columns, I will summarize what we are hearing in the oral arguments in
both petitions. And when the decision for the petitions on validity come out in early July,
I will of course analyze that to see how a living constitution wrestles with the legal
questions that accompanies the declaration of martial law.

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Oral arguments on martial law

The Supreme Court last week conducted for three days oral arguments on the three
consolidated petitions assailing the constitutionality of Proclamation No. 216, declaring
martial law in the entire Mindanao area.

The three consolidated petitions were filed by opposition lawmakers led by Albay Rep.
Edcel Lagman, local Mindanao leaders led by lumad leader Eufemia Campos Cullamat
and a group of women from Marawi led by Norkaya Mohamad.

At the onset of the oral arguments, Lagman, upon questioning by Chief Justice Maria
Lourdes Sereno, said that there is no sufficient factual basis that warrants the
implementation of martial law in the entire Mindanao region. Lagman stated that some
of the factual bases as contained in the Proclamation and Executive Report are
inaccurate and/or outright false. Assuming, he said that the first element of rebellion—
rising and taking up of arms by the Maute Group against the government—may be
present, the second element, i.e., the culpable purpose of rebellion, is absent. He
insisted that there is no actual rebellion since the second element is not present. He
likewise clarified that in case there is conflict in the decisions of Congress and the
Supreme Court as to the factual basis of the declaration, the decision of the latter shall
prevail.
Upon interpellation by Associate Justice Antonio Carpio on the territorial coverage of
martial law, Lagman said that there is no actual rebellion in other provinces of Mindanao
which would warrant the exercise of the extraordinary power of martial law in the entire
Mindanao area. He noted that under the Constitution, there must be an actual rebellion
for martial law to be declared. Public safety must also be compromised by that rebellion,
as there have been ongoing rebellions for many decades which have not required the
imposition of martial law.

During his turn for questioning, Associate Justice Marvic Leonen said that martial law
“should have clear operational guidelines because it’s not simple declaration but, rather,
it has real effects.” Leonen said that the SC has the power to review the declaration and
should not give full deference to the chief executive and dismiss the petitions on
technicalities.

Marlon Manuel, legal counsel of a group of women from Marawi, who also argued for
the petitioners, insisted that the military forces can quell the ongoing atrocities in Marawi
without the need for Proclamation 216. He asserted that “Under the 1987 Constitution,
martial law must be an instrument of last resort. If there is a remedy less severe than
martial law, such less severe remedy must be resorted to. Only when there is a showing
that the situation cannot be contained unless martial law is declared, can the use of
such extraordinary power of the President be justifiable”. Leonen asked the anti-martial
law petitioners if Duterte’s martial law is too expansive and not limited to where the
actual conflict is. Lawyer Marlon Manuel said “what may be necessary for one area may
not be necessary [for] another area.”

Associate Justice Lucas Bersamin, directing questions to petitioners’ counsel Ephraim

Cortez, asked if the elements of rebellion are present to which he answered in the
negative. Given the situation in Marawi, the government, Cortez insisted, should submit
sufficient proof that there is rebellion to necessitate the declaration of martial law.
Bersamin cited the presumption of validity of the declaration by the President, who
should be given reference on the matter as the Commander-in-Chief, and both put on
petitioners the burden to prove the grave abuse of discretion on the part of the
President.

On questioning by Bersamin as to what standard of magnitude of violence is needed to

declare martial law, Cortez said that the standard should be if the safety of the public is
already being endangered. It cannot be determined based on the number of bodies or
damaged properties. Bersamin clarified that there is no standard but the sufficiency of
fact will be based on the sound judgment of the court as the proclamation of martial law
will be left to the good judgment of the president. Bersamin asked counsel how the court
could properly review the factual basis considering that it does not have the materials
which would be the basis for the review of the factual basis. Counsel said government
should provide the materials.

However, Justice Carpio observed that the Proclamation and the Comment of the
Solicitor General containing the facts used by the President to declare martial law would
be enough for the Court to make a proper review. Hence, according to Carpio, to which
Cortez agreed, there is no need to go outside these two documents.

Associate Justice Mariano Del Castillo questioned Lagman on his basis for claiming that
the situation in Marawi does not necessitate martial proclamation in Mindanao
considering that he did not personally visit Marawi City to know the actual situation
there. “So it would really (be) difficult to say that the situation there does not amount to
rebellion. I mean you have not been there, you have not been on the ground. You don’t
know what the situation is there. How can you dispute now the findings of the
sufficiency of the factual basis for the proclamation?” the justice asked. For Lagman,
however, there is no need for the petitioners to be in Marawi since their review of the
report submitted by the President to the House and the Senate already revealed
insufficiency of factual basis for such declaration.

For his part, Solicitor General Jose Calida, defending the position of the government,
rebutted the allegations of petitioners and maintained that there is a rebellion with the
Maute group and other terrorist group to strip the government of control in southern
Philippines. He insisted that there is rebellion because “ISIS-inspired local rebel groups
have taken arms against the Philippine government for the purposed of removing
Mindanao from its allegiance, and of depriving the Chief Executive of his prerogatives
therein.”

He hinted that he would reveal information on the matter once it’s his turn to speak
before the high court. Calida added that Duterte could also disregard the counsel of
military officials as these “would merely be advisory.” He said that instead of the focus
on the lack of recommendation by defense authorities, the question should be on
whether the proclamation was founded on facts as the President enjoyed access to a
vast intelligence network.

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The new martial law

At the resumption of the Supreme Court oral arguments on the declaration of martial
law last June 14, Wednesday, Solicitor General Jose Calida argued the case for the
government—that President Duterte’s Proclamation No. 216 was constitutional and in
conformity with the constitutional requirements.

At the start, Calida gave a short narrative of the events that led to the issuance of this
Proclamation placing the entire Mindanao under martial law. He proposed that if there is
sufficient factual basis to declare martial law then it cannot be said that the President
acted with grave abuse of discretion; that the burden is on the petitioner, not the
respondent, to prove that there is insufficient factual basis for such declaration. He
argued that the clashes between the Maute Group and the government point to the
existence of rebellion which endanger public safety. These attacks by the rebels do not
only occur in Marawi but also in other parts of Mindanao, he said.
Justice Mariano del Castillo asked: What is so fearsome about martial law, and why not
just invoke the calling-out powers of the President? Calida said that in the President’s
judgment martial law was the necessary tool to quell the rebellion. To the question by
Del Castillo that the military was caught by surprise by the Maute attack, Calida
answered that intelligence gathering is not perfect. He also said that there are linkages
among the terror groups all around Mindanao. This warrants the declaration of martial
law throughout Mindanao.

Justice Antonio Carpio asked if there is any report that Maute have staged rebellion in
other areas of Mindanao. Calida said that the terrorist group had capability to sow terror
in other parts of the island. Carpio however that rebellion requires actual rebellion—not
merely capability.

Chief Justice Maria Lourdes Sereno said that in declaring martial law, the legal
standards must be made known. What are the parameters of the powers in the exercise
thereof; that the factual basis must have connection with the necessity. Calida, citing the
constitutional provision, stated on the other hand that the Court may only review the
factual basis but not the necessity for declaring. The chief justice, however , citing the
constitutional provision, emphasized the phrase “when public safety requires it” which
makes necessity, other than factual basis, reviewable by the court.

For his part, Justice Marvic Leonen explained that just possession of the flag with the
Arabic script known as the Shebab in itself is not conclusive proof that it belongs to
ISIS. In fact, Maute can be a criminal group pretending to be affiliated with ISIS. He said
that it is possible that what happened in Marawi is simply “pintakasi” because the
firefight was initiated by the military when they tried to arrest Isnilon Hapilon. He asked
Calida whether it is possible for Isis conduit terror group to establish a caliphate in
Southern Mindanao, to which the former answered in the affirmative. Leonen, however,
mentioned a security expert saying that it is not possible because of ideological
disharmony.

According to Justice Leonen, the problem in Marawi must be seen from the lens of the
Islamic faith. Leonen then gave a discourse on the different Muslim sects particularly
the difference between Sunni and Shia to be able to determine whether the Maute-ISIS
are real or mere pretenders. So, according to Leonen, the propaganda of the Maute
should be taken with a grain of salt, that is, the government should not take the raising
of the ISIS flag hook line and sinker. He said that the proclamation of martial law may
only be a reaction to the government’s failure of intelligence. He also draws attention to
a name referred to as “boy” and “baby” contained in Arrest Order No. 1 which could
mean that any person bearing these names could be arrested. He likewise scrutinized
other official documents, including General Order No. 1, issued by the government after
the declaration of martial law.

The most telling, and probably the most important exchange in the oral arguments was
between the Solicitor General and Justice Carpio. The former asked: What are the
powers of the President under martial law vis-à-vis calling-out powers? If my readers
recall the first column of this series, I pointed out the distinction between these two
commander-in-chief powers in terms of when they can be used. Carpio explained to
Calida that martial law in fact does not really confer new powers to the president that he
does not yet possess. To the surprise of many, Calida agreed and even described
martial law as calling-out powers “with an exclamation point” or “in steroids.” He recalled
the latter description after Chief Justice Sereno reminded him that steroids have proven
to cause long damage to the health of people who abuse them.

This exchange affirmed the proposition that I have been arguing for weeks now, that
martial law has been sanitized by the 1987 Constitution. Historically, this was a power
granted to the President during the war with the US colonizers using the power against
Philippine insurgents in the Philippine-American war early in the 20th century. The 1935
constitutional convention put it in as the delegates anticipated World War II and to
counter the threat of communist insurrection. Ferdinand Marcos, however, twisted it and
used martial law to establish a dictatorship, purportedly to build a new society but really
just to stay in power and for him and his cronies to plunder our economy. The 1987
Constitutional Commission, after debating whether martial law should even be a power
granted again to a President, decided to compromise and allowed such power but
sanitized so never again would we have a Marcos. Thus, martial law cannot abolish
legislative councils, derogate the Bill of Rights, supplant civil courts, and replace local
governments.

This is the genius of the framers of the 1987 Constitution: in defanging martial law, it
reduced the power and made it equivalent to the calling-out power which allows the
President to order the Armed Forces of the Philippines to suppress lawless violence.

Indeed, all the actions of the President and the military to address the Marawi crisis
does not require martial law. Martial law’s impact, as Calida himself says, is
psychological rather than legal. This is not to say it has no impact on real lives: for those
in war zones, in urban poor areas, and in rural areas, armed groups always pose a
threat to the security of individuals and communities. Martial law enhances that threat
and makes the military more intimidating. In Marawi, that might be welcome, but in other
places, where there is conflict because of social injustice, martial law can lead to abuse
of power.

The new martial law has no legal consequences but it does have real outcomes. The
terrorists in Marawi seem to be liking it, basking in the international attention and
recognition they are getting. Civilians in Mindanao both welcome and are threatened by
it. We will see in the days ahead, especially if it is extended to the whole country,
whether this new martial law is good or bad for the country.

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High noon in the SC: Is martial

law legal?
Two weeks have passed since the first day of the Supreme Court oral arguments on the
consolidated petitions to nullify President Rodrigo Duterte’s declaration of martial law. Both
the petitioners and the respondents have made compelling arguments and have answered the
questions of the Supreme Court well.
Memorandums will be submitted soon, if not yet done, and the Court will render its historic
decision by July 3, 2017, at the latest.
It is clear that no matter whatever verdict the Supreme Court may issue, history has been
made.
The decision on this petition, as lawyer Marlon Manuel has said, will not only be for the benefit
of the petitioners, and not only for this generation, but also for the next. To which, Chief Justice
Maria Lourdes Sereno agreed and urged the other justices of the Supreme Court to take pains
in deciding this petition since it is not the "simple job of the court to simply say that Marawi is
under siege,” or that martial law legally exists. Rather, their job “is to give fealty to the words of
the Constitution when martial law is declared,” because “if we [the Supreme Court] do not rule
correctly and do not provide the guidelines, then it is possible that this Court will only add to
the confusion rather than [to] clarify a situation. And it is only a voice of clarity and sobriety
that is most necessary in times of emergency.” In the decision of the Court, the 1987
Constitution will come alive.
There are 3 groups of petitioners in this case: minority lawmakers led by Albay 1st District
Representative Edcel Lagman who fielded most of the questions of the justices in the orals;
activist groups represented by lawyer Ephraim Cortez; and 4 women from Marawi City
represented by Manuel. I am glad that we had this last group of petitioners who are truly
material parties-in-interest, their lives, properties, and communities being at stake in what is
happening in Marawi.
Aside from seeking the nullification of martial law in Mindanao, all the petitioners, especially
the women from Marawi, emphasized the interconnectedness of their petitions with human
rights. Throughout their arguments, the petitioners contended that martial law will inevitably
result in violation of human rights. To this, Justice Noel Tijam asked, “Whose human rights are
you seeking to protect?” Congressman Lagman answered, “The people’s human rights, Your
Honor. Particularly, the residents of Marawi City.” In the oral arguments, representing
President Duterte was Solicitor General Jose Calida.

Arguments of petitioner
The petitioners argue that the Supreme Court should nullify President Duterte’s declaration of
martial law in Mindanao for lack of sufficient factual basis.
They argue that, first off, what is happening in Marawi City is not a case of actual rebellion.
According to the petitioners, the rebellion referred to in Section 18, Article VI of the 1987
Constitution should be read in relation to Article 134 of the Revised Penal Code as this is the
specific provision that President Duterte makes mention of in both Proclamation No. 216 and in
his report to Congress. Also, they argue that it is this definition that the 1987 Constitutional
Commission had in mind when they were referring to rebellion in this provision. Thus, in order
to constitute actual rebellion, Art. 134 of the RPC provides that there must first be a rising or
taking up of arms against the Government.
Second, the purpose of such actions is to remove allegiance of the territory of the Philippines,
or any part thereof, to said Government or its laws. Here, the petitioners contend that the acts
of violence happening in Marawi City lack that essential element of culpable purpose. The acts
of taking up of arms against the government was only made in an attempt to rescue the Maute
group’s leader, and not to remove Marawi from its allegiance to the Philippine government.
Without such purpose, the petitioners argue that there can be no actual rebellion, and
therefore, there can be no valid declaration of martial law as the same is required by the
Constitution.
The petitioners also reason that, not only must there be actual rebellion, but also that public
safety must require the declaration of martial law. They urge the Supreme Court to interpret
Section 18, Article VI of the 1987 Constitution, not in two distinct modes, but in a continuum. In
that, the Supreme Court is to not just review the sufficiency of the factual basis of the
declaration of martial law, but to also exact whether public safety necessitates such
declaration. Chief Justice Sereno has referred to this as the “requirement of public necessity.”
The petitioners introduced to the Court several facts and statements that directly contradict
statements in both Proclamation No. 216 and the President’s report to Congress. These facts,
according to the petitioners, as introduced by them, should be taken as the true and accurate
facts, and which if taken together with the undisputed facts, would show that, despite the acts
of violence in Marawi City, the same did not satisfy the “requirement of public necessity” so as
to constitute a valid declaration of martial law.
Despite their position, the petitioners clearly showed their concern for the people of Marawi
City and the acts of violence happening in their community. However, they claim that the
President does not have discretion in choosing between his 3 emergency powers. The
President’s power to call out the Armed Forces of the Philippines (AFP), to suspend the writ of
habeas corpus, and to declare martial law in the entire Philippines or any part thereof must be
commensurate to the acts of invasion or rebellion actually happening in said territory and to
the requirement of public safety.
The petitioners also argue that martial law is “an instrument of last resort.” Thus, prior to
declaring martial law, the President must first exhaust all of his other powers before finally
resulting to the exercise of his martial law emergency power. Thus, it is the position of the
petitioners that the President should have first called out the AFP, then suspended the writ of
habeas corpus. Should the invasion or rebellion persist and should public safety require it, it is
then and only then that the President may declare martial law. The petitioners argue that the
facts do not show such succession of powers. Rather, it is their position that the President
directly resorted to the declaration of martial law in Mindanao without first exhausting all his
other emergency powers.
In their interpellations, the petitioners focused on their argument that there was no actual
rebellion happening in Marawi City. This may be a difficult statement to support because of the
direct contradiction of what is currently being portrayed in different media outlets. Rather,
what the petitioners should have emphasized instead is the lack of factual basis for declaring
martial law for the rest of Mindanao. Though this argument was mentioned in passing during
the arguments of the petitioners, it was more extensively discussed in the interpellations of the
Solicitor General. In fact, it was not even the petitioners who placed the burden on the
government to show factual basis for the declaration of martial law in the entire Mindanao, but
it was the Supreme Court Justices who questioned this themselves. Thus, the missed
opportunity (so to speak) as their petition would have been stronger if they had argued more
on this matter.

Arguments of the Solicitor General

On behalf of the government, Solicitor General Jose Calida maintains that all the elements of
actual rebellion was present at the time President Duterte issued Proclamation No. 216.
The Solicitor General points out that the petitioners themselves concede to the Maute group’s
acts of taking up arms against the government. He also contends that, contrary to what the
petitioners have presented, there is a culpable purpose to remove Marawi City, and, ultimately,
the entire Mindanao, from its allegiance to the Philippine government. The Solicitor General
explains to the Court that the intelligence data gathered showed that the Maute group had a
long-standing plan to take over Marawi City, and use said territory as a starting point for
takeover of the entire Mindanao. He continues to explain that all of the acts of the Maute
group was in an aim to ultimately establish an Islamic State in Mindanao. Thus, effectively
preventing all government functions in the entire Mindanao and removing the allegiance of the
aforementioned territory to the Philippine government.
In response to the argument that the other emergency powers must first be exhausted,
Solicitor General Calida claims that the President had, in fact, exhausted the same. According to
Calida, when President Duterte issued Proclamation No. 55 Declaring a State of National
Emergency on Account of Lawless Violence in Mindanao, this was an exercise of his power to
call out the Armed Forces of the Philippines. Because the acts of violence continued despite the
calling out of the AFP, Solicitor General Calida insisted that Duterte validly declared martial law
after having exhausted all other powers.
On the matter of public necessity and martial law in the rest of Mindanao, Chief Justice Sereno
asked why then was there a necessity to declare martial law in the entire Mindanao, assuming
the factual basis of the proclamation was indeed valid and sufficient. Here, Sereno emphasized
once again the requirement of public necessity to be interpreted with the requirement of actual
rebellion in order to justify a declaration of martial law. In addition to this, Justice Antonio
Carpio explained that the general allegation in the President’s declaration of martial law and
report to the Congress talks about capability, not actual rebellion. The whereas clause provides,
“WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups
to sow terror, and cause death and damage to property not only in Lanao del Sur, but also in
other parts of Mindano. (emphasis supplied)” The Supreme Court maintains that this statement
only speaks of capability, and that what the Constitution requires is actual rebellion, not mere
capability to commit acts of rebellion. Here, a clear distinction is made between the two. The
Court thus requested that the Solicitor General include in memorandum of the respondents the
factual basis for declaring martial law in the entire Mindanao. We can expect that this will be
another important point of discussion in the upcoming deliberations.
Lastly, Calida ultimately argues that the actions of the President enjoy a presumption of validity
and regularity, and that the power to declare martial law is inherent in President as
Commander-in-Chief. Thus, it is his discretion to declare the same. The Solicitor General further
opines that it can only be reviewed if there is grave abuse of discretion amounting to a lack or
excess of jurisdiction. Otherwise, due deference should be given as the declaration of martial
law is a political question that should not be looked into by way of review. To which, Chief
Justice Sereno asked to clarify the same.
This question on the political question doctrine may be something that will be further discussed
in the deliberations as it is this same doctrine that was used by the Supreme Court to unduly
validate the Marcos martial law. According to the Chief Justice, this political question has
already been discredited. However, Solicitor General Calida raises this doctrine again as reason
to validate the martial law declaration of President Duterte. Thus, this defense of the Solicitor
General has prompted further discussion on the matter.

Martial law vs calling out power

The Solicitor General was also asked to distinguish between the calling out power and the
martial law emergency power of the President. Specifically, Justice Del Castillo asked, “What is
in the power of martial law that is not in the calling out power of the President?” A lengthy
discussion thereafter ensued. Calida said that “martial law is the calling out powers on
steroids.” On this statement, Chief Justice Sereno cites medical literature which shows that
steroids give the appearance of great muscle presence, but they do not address the illness.
With respect to the petition at hand, this puts emphasis on the necessity to declare to the
people what exactly are the parameters of martial law. Thus, Sereno asked about "the legal
standards” that ought to be followed in order for there to be a valid declaration.
According to Sereno, a delimitation of the scope of martial law “assures petitioners who have
brought up the possibility of abuses and a return to the Marcos martial law regime, that it is in
fact part of the duty of the Supreme Court to ensure the safeguard of the Constitution and the
protection of the Constitutional rights of its citizens.” Sereno also emphasizes the duty of the
Supreme Court “to remember the AFP who under possibly misdirected order can actually do
acts for which they can be held eventually, civilly and criminally liable.” Thus, it also behooves
the Court “to protect the AFP as an institution. On behalf of them, this Court must also define
the limits of what the President can direct.”
Historically, martial law was a power granted to the American Governor-General which he used
against Philippine insurgents in the Philippine-American war early in the 20th century. The 1935
constitutional convention delegates, anticipating World War II and to counter the threat of
communist insurrection, granted the President such power. Clearly, this was a power only for
extreme situations and only for a temporary period when civilian government was not possible.
Ferdinand Marcos, however, misused the power in the guise of building a new society, but
really just to stay in power and for him and his cronies to plunder our economy. The 1987
Constitutional Commission, after debating whether martial law should even be a power granted
again to a President, decided to compromise, but sanitized martial law so never again would we
have another Marcos. Thus, martial law cannot abolish legislative councils, derogate the Bill of
Rights, supplant civil courts, and replace local governments.
This is the genius of the framers of the 1987 Constitution: in defanging martial law, it reduced
the power and made it equivalent to the calling out power which allows the President to order
the Armed Forces of the Philippines to suppress lawless violence. Indeed, all the actions of the
President and the military to address the Marawi crisis do not require martial law.
Martial law’s impact, as Calida himself says, is psychological rather than legal. This is not to say
it has no impact on real lives: for those in war zones, in urban poor areas, and in rural areas,
armed groups always pose a threat to the security of individuals and communities. Martial law
enhances that threat and makes the military more intimidating. In Marawi, that might be
welcome, but in other places, where there is conflict because of social injustice, martial law can
lead to abuse of power.
In sum, the new martial law has no legal consequences, but it does have real outcomes. The
terrorists in Marawi seem to be liking it, basking in the international attention and recognition
they are getting. Civilians in Mindanao both welcome and are threatened by it. We will see in
the days ahead, especially if it is extended to the whole country, whether this new martial law
is good or bad for the country. A lot of this will depend on the clarity of the Supreme Court
decision in saying not only what martial law is not, but also what it includes.

Jurisdiction, other procedural issues

Though the petitioners ultimately ask the Supreme Court to nullify Proclamation No. 216, the
discussions in the interpellations have outlined other issues which several justices consider
imperative for the Court to address in making their decision.
Questions on jurisdiction were raised by the SC justices. Justice Mariano Del Castillo opened the
interpellations on the first day of the oral arguments with a question on the basis of the
Supreme Court’s jurisdictions over these petitions since such a petition is not enumerated
under Section 1, Article VIII of the Constitution as one of the situations included in the
definition of judicial power of courts in our jurisdiction. To which the petitioners replied that
the jurisdiction of the Court is anchored on Par. 3, Section 18, Article VII of the Constitution.
They contend that the two provisions are completely different, and that their petitions are a
class by itself as the jurisdiction of the Supreme Court to take cognizance of these cases is given
to the court by a specific provision of the Constitution. Justice Lucas Bersamin adds that the
petition is unique kind of review. It is sui generis. One, in fact that, according to Chief Justice
Sereno, “this Court is fully empowered to take cognizance of a proceeding that is entitled “In re
petition” under Article VII Section 18 because it is provided, not by our Rules of Court, but by
the Constitution itself.”
Another question was raised by other justices on whether or not the Supreme Court is
mandated by the Constitution to give due course to these kinds of petitions. Par. 3, Section 18,
Article VII of the Constitution states: “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 or the suspension of the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within thirty days from its filing. (emphasis
supplied)” Hence, the discussion on the matter. Although neither any of the Justices nor the
petitioners gave a definite stance on the matter, the Solicitor General argues that the word
“may” should be interpreted to mean that the Supreme Court is not obligated to hear and
decide on every and all petitions filed before them.
Other questions on procedure were raised as well. One question that was repeatedly asked by
the justices was the quantum of proof that is required of the Court in deciding the petition.
Although their petitioners varied in their opinion on what should be the evidentiary
requirement in such a petition, we can expect that this issue will also be deliberated upon in
the upcoming days.
The Supreme Court also asked both parties on the application of the principle that “he who
alleges has the burden of proving the same” in the consolidated petitions at hand. Solicitor
General Calida argues that the burden should be on the petitioners to show no factual basis.
They must show facts to support their assertions. However, the petitioners opine the contrary.
In fact, when asked this question during the interpellations on the first day of the oral
arguments, Cong. Lagman insisted that the burden of proof should lie with the respondents or
the parties insisting on validity of the declaration of martial law. Although the declaration of
martial law enjoys a presumption of validity, the same is disputable. Thus, according to Lagman,
all the petitioners have to say is that there is no factual evidence for the declaration and the
burden shifts to the respondents.
Despite the important procedural questions raised during interpellations, Chief Justice Sereno
reminds everyone of the constitutional duty of the Supreme Court “to ensure that rules do not
arrogate from our substantive rights and that has always been a principal rule in any
interpretative duty that we have.” She further opines that “it is only commonsensical that the
Rules of Procedure follow what the Constitution designs because we could not have
promulgated rules for the protection of rights unless they are first defined by the Constitution
and by appropriate legislation.” Other Associate Justices like Justice Bienvenido Reyes also
expressed similar sentiments.
Thus, we can infer from these statements that the decision of this Court on procedural issues
and matters on rules will be construed during the deliberations in such a manner so that, as the
Chief Justice puts it, “the ends of justice are to be achieved.”

Other martial law case: Role of Congress

Another important issue that was raised was the constitutional duty of Congress.
According to Congressman Lagman, “Congress has reneged on its duty” when it refused to
convene on the matter. Although this issue was not lengthily discussed during the oral
arguments because of the separation of issues, this is definitely a problem that the Supreme
Court needs to address during its deliberations. Par. 2, Sec. 18, Article VII of the Constitution
states: “The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
(emphasis supplied)” By the wording of the law, it is clear that it is mandatory for Congress to
convene. The provision uses the word “shall” which has been interpreted in several decided
cases to mean a mandatory duty. Let us take the case of Fortun vs. Arroyo. In this case, the
Supreme Court, in its decision, said:
“Consequently, although the Constitution reserves to the Supreme Court the power to review
the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is
implicit that the Court must allow Congress to exercise its own review powers, which is
automatic rather than initiated. Only when Congress defaults in its express duty to defend the
Constitution through such review should the Supreme Court step in as its final rampart. The
constitutional validity of the President’s proclamation of martial law or suspension of the writ
of habeas corpus is first a political question in the hands of Congress before it becomes a
justiciable one in the hands of the Court. (emphasis supplied)”
As former Solicitor General Florin Hilbay has stressed in a news conference, “It’s very clear that
the intention is for the Congress to perform a legislative review of the declaration of martial
law.” The Supreme Court itself has previously recognized the Constitutional duty of the
Congress to convene on the matter, and even regarded this duty to not only be mandatory, but
also automatic. The review is automatic, because there’s no need file anything or to invoke
anything to initiate the power of the Congress to review.”
Hilbay, in his petition, argues that this congressional review was meant to prevent abuse of
power, and that, in the passage of the Senate and House resolutions supporting the President’s
decision, Congress has unlawfully neglected their constitutional duty to convene. According to
the petitioners, a mere passage of resolution is not enough to comply with this duty because
the provision in the Consitution is clear. Congress is required to convene and vote jointly.
Section 18, Article VII of the 1987 Constitution states, “The Congress, voting jointly, by a vote of
at least a majority of all its members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the President. (emphasis
supplied)” The provision evidently requires Congress “to act as a single deliberative body.”
Thus, it is the position of the petitioners that this duty cannot be substituted with the passage
of separate resolutions. They insist that “substantial compliance is no compliance.”
However, this particular issue is faced with challenges.
Traditionally, the Supreme Court has only declared laws as unconstitutional or simply stated
that the Congress did something wrong. Thus, it is now the task of the Court to find a remedy
for this matter. It is clear that the Supreme Court cannot issue a writ of mandamus to order the
Congress to do something. But what now can the Court do in the case of a co-equal branch of
government not complying with its constitutional duty? This is something we not only expect to
be discussed in the deliberations, but it is also something we urge the Supreme Court to
resolve.

Historic opportunity for the Supreme Court

In summary, we imagine that the Supreme Court will discuss the following in the upcoming
deliberations:

 A delimitation of “what [the] government can and cannot do during martial law”
(Chief Justice Sereno);
 Possible civil and criminal liabilities of officers of the AFP for acts committed during
the martial law declaration should be discussed, including authority as local
government and liability for the disbursement of funds;
 Discussion on the appropriate proceeding and other procedural requirements to
look into the sufficiency of factual basis of a petition for judicial review; and
 In the Hilbay petition, a remedy that can be granted so that Congress will do its
constitutional duty to review martial law.
As lawyer Manuel said during his interpellations, what we have here is a “once in a lifetime
opportunity,” a petition of the first of its kind in the thirty decades of existence of the 1987
Constitution. We should not let this opportunity pass without laying down these additional
guidelines that will be followed by, not only the current administration, but also future ones.
And, as Chief Justice Sereno has said, “while the Court is very concerned about the violence
that is happening in Marawi, we must still protect the fabric that holds together our society.
And while we will and may uphold the power of the President, it is also our duty to ensure that
that power is discharged fully in accordance with the framework that governs our country.”
Chief Justice Sereno continued to ask, “Otherwise, what will happen to this country, Atty.
Manuel?”
To which, Manuel replied, “Then, we will be destroying the institutions that have been built
over several decades from the 1987 Constitution.”
Chief Justice Sereno: “And what does it mean for us to destroy institutions, Atty. Manuel?”

Manuel: “Then, we are reverting back to the Martial Law Period during Marcos.” –
Rappler.com
Tony La Viña is former dean of the Ateneo School of Government. Regina Ongsiako is an
incoming third year law student at the Ateneo Law School and presently a legal intern at the
Manila Observatory.