SC: President has discretion on scope of martial law
THE President holds the “discretion to determine the territorial scope” of martial law, the Supreme Court (SC) said in its ruling on July 4, Tuesday.
Mr. Del Castillo said that: “In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the ‘ range’ of actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions,” said the 82- page decision penned by Associate Justice Mariano C. del Castillo and released on Wednesday.
In its decision, the Court presented the hypothetical situation of an armed struggle in the SC at Padre Faura, Ermita, Manila, with the attackers hoisting an ISIS flag.
“Based on the foregoing illustration, and vis-a-vis the nature of the crime of rebellion, could we validly say that the rebellion is confined only within the Court’s compound? Definitely not,” the Court said.
“The possibility that there are other rebels positioned in the nearby buildings or compound of the Philippine General Hospital (PGH) or the Manila Science High School ( MSHS) could not be discounted. There is no way of knowing that all participants in the rebellion went and stayed inside the Court’s compound,” the SC added.
The decision further reads: “Their transitory and abstract nature defies precise measurements; hence, the determination of the territorial scope of martial law could only be drawn from arbitrary, not fixed, variables. The Constitution must have considered these limitations when it granted the President wide leeway and flexibility in determining the territorial scope of martial law.”
But four members of the high court, including Chief Justice Maria Lourdes P.A. Sereno, disagreed with the 11 others who ruled to uphold President Rodrigo R. Duterte’s Proclamation No. 216.
Ms. Sereno, Senior Associate Justice Antonio H. Carpio, and Associate Justice Alfredo Benjamin S. Caguioa voted to limit the declaration of martial law to specific areas in Mindanao.
Mr. Duterte had sufficient factual basis for issuing Proclamation No. 216 but only for the provinces of Lanao del Sur, Maguindanao and Sulu, Ms. Sereno said.
She added that the other justices “emaciated the power of judicial review” for awarding Mr. Duterte “excessive leeway,” which led to the “absurdity” of martial law in places as terrorism and rebellion-free as Dinagat Islands or Camiguin.”
“The military has said as much: there are places in Mindanao where the Mautes will never gain a foothold. If this is so, why declare martial law over the whole of Mindanao?” Ms. Sereno said in her 51- page dissenting opinion.
The same was echoed by Mr. Caguioa in his 24-page dissenting opinion as he said: “Extending martial law and the suspension of the privilege of the writ even to contiguous or adjacent areas cannot be done without a showing of actual rebellion in those areas or a demonstration that they are so inextricably connected to the actual rebellion that martial law and suspension of the privilege of the writ are necessary to ensure public safety in such places.”
Section 18, Article VII of the 1987 Constitution held that “in case of invasion or rebellion or when public safety requires it,” the President may declare martial law.
The deletion of the “imminent danger” as precursor to a martial law declaration is among the “safeguards” placed by the framers of the Constitution — as opposed to the 1935 Constitution under which the dictator Ferdinand E. Marcos declared martial law.
This omission and the limited time frame of 60 days for martial law are to prevent a repeat of the abuses of the Marcos dictatorship.
Mr. Caguioa said he concurs with Ms. Sereno that martial law covers only Lanao del Sur, Maguindanao and Sulu where the “inextricable connection” of the “actual rebellion being waged in Marawi” is shown.
Mr. Carpio, for his part, said Mr. Duterte’s proclamation of martial law should cover Marawi City only. He noted Mr. Duterte’s words, after issuing Proclamation No. 216, that “he declared Mindanao-wide martial law to prevent a spillover.”
“This only confirms that there is no actual rebellion outside Marawi City. However, the President feared a ‘spillover’ to other areas of Mindanao because ‘it is easy to escape’ from Marawi City, ( given that) there is no division in terms of land,’” Mr. Carpio said.
Associate Justice Marvic M.V.F. Leonen was the lone dissenter in the 15-member court, as he moved that Proclamation No. 216 be declared unconstitutional.
“In conscience, I do not see the situation as providing for the kind of necessity for the imposition of martial law in Marawi, as well as throughout the entire Mindanao,” Mr. Leonen said in his 92-page dissenting opinion.
“The military can quell the violence. It can disrupt many of the planned atrocities that may yet come. It can do so as it had on many occasions in the past with the current legal arsenal that it has,” said Mr. Leonen, who earlier served in the government peace panel during the Aquino administration.
Mr. Duterte’s proclamation ends on July 23, the eve of his second State of the Nation Address (SONA).
The SC has yet to act on two other petitions filed against Proclamation No. 216, seeking to compel Congress to convene and deliberate on the declaration.
For his part, Albay Rep. Edcel C. Lagman in a statement on Thursday said he and other opposition legislators will file a motion for reconsideration.
Mr. Lagman in his statement said the SC’s review jurisdiction over martial law “is one of the many safeguards” in the 1987 Constitution to prevent the “excesses” of Mr. Marcos’s martial law.
But “(t)his safeguard was denigrated by the majority decision which effectively deferred to the discretion of the President,” Mr. Lagman said in part.
He lamented further, “The majority decision even went to the extent of pronouncing that the territorial coverage of martial law is subject to the President’s discretion, thus paving the way for an expanded territorial ambit of a martial law declaration.
“The foregoing obiter dictum was completely unnecessary. It may only further embolden the President to place the entire country under martial law,” warned Mr. Lagman. — with