‘SC decision on ML extension creates ground for dictatorship’

Supreme Court Associate Justice Marvic Leonen has expressed belief the high court’s decision upholding the one year extension of martial law in Mindanao could set dangerous grounds for the return of dictatorship.

Leonen, one of the five magistrates who voted against the martial law extension, expressed fears the SC might be following the path set by a court in the 1970s that “painfully morphed into a willing accomplice to the demise of fundamental rights… in order to accommodate a strongman.”

“What followed was one of the darkest episodes in our history,” Leonen said in his dissenting opinion on the SC decision upholding the martial law extension released on Tuesday.

President Duterte declared martial law in Mindanao as terrorists placed Marawi City under siege in May of last year. He sought a one-year extension of martial law and the suspension of the writ of habeas corpus from Congress, citing the need to quell further terror acts in the country.

On Sept. 23, 1972, former president Ferdinand Marcos placed the entire country under martial law. At the time, people’s freedoms were restrained and resulted in involuntary disappearances, torture and summary killings.

Martial law was only lifted on Jan. 17, 1981 and Marcos was ousted through a peaceful revolution in 1986.

Leonen said regardless of the motives of the justices during that time, “It was a court that was complicit to the suffering of our people. It was a court that degenerated into a willing pawn diminished by its fear of the impatience of a dictator.”

According to Leonen, the decision of the majority of SC justices allowing martial law in Mindanao to continue for one more year “aligns us towards the same dangerous path.”

“It erodes this court’s role as our society’s legal conscience. It misleads our people that the solution to the problems of Mindanao can be solved principally with the determined use of force. It is a path to disempowerment,” Leonen said.

He added the decision of the majority of the justices in the SC creates an environment that enables the rise of an “emboldened authoritarian.”

Chief Justice Ma. Lourdes Sereno noted in her dissenting opinion that this was the first post-Marcos examination of martial law undertaken by the SC under the 1987 Constitution and there is no existing rule or jurisprudence that would have sufficiently guided Duterte in crafting the martial law proclamation under the present Charter.

She believes that declaration of martial law extension was only valid in Marawi, Lanao del Sur, Maguindanao and Sulu.

Leonen said in order to declare martial law under the Constitution, actual rebellion should be present and that it should endanger public safety, but these factors do not exist in the current situation in Mindanao.

“The ‘evil’ sought to be addressed by clearly defined powers under a state of martial law is the presence of actual – not imminent – rebellion, and ‘public safety’ is a necessity for the exercise of such powers. ‘Public safety’ cannot be the damage or injury inherent in acts of rebellion,” he added.

Leonen also said both Duterte and Congress “gravely abused their discretion” when they did not disclose to the public the powers that would be exercised by the military, the remedies and strategies under martial rule.

He said martial law extension “is a solution that denies the complexity of a generational problem. It assures an environment conducive to the emergence of an authoritarian.”

Leonen said there were no facts that supports the implementation of a one year extension and why martial law and the suspension of the privilege of writ of habeas corpus should be applied in the entire Mindanao region.

There was also no mention of specific powers that would be accorded to the President, who is also the commanderin-chief, and the military with the declaration of martial law, Leonen said.

According to him, the government also failed to show why the normal legal framework and the professional work of the military, police and local government units were not enough to suppress the threats.

“We have an ambiguous declaration of martial law with no unique powers over an area that is too broad, where the fear of skirmishes in which imminence has not also been proven to exist. There are no actual debilitating confrontations deserving of martial powers. There are no confrontations that could not be solved by calling out powers of the President or the surgical application of the suspension of the privilege of the writ of habeas corpus,” he added.

Sereno, for her part, said the question posed to the high court was whether or not rebellion persists and if public safety requires its extension, and “the answer is no.”

The pronouncements of Duterte, Defense Secretary Delfin Lorenzana and Congress “in fact show that there is no armed public uprising that justifies the conclusion that rebellion persists,” Sereno said.

On the part of SC Associate Justice Antonio Carpio, who also voted against the one-year extension of martial law, he said no less than Duterte on Oct. 17, 2017 announced that Marawi has been liberated from the terrorist influence of the Maute group, which led the siege.

Carpio pointed out this statement from the government was bolstered when Lorenzana told the Association of Southeast Asian Nations (ASEAN) Defense Ministers meeting last October that “after 154 days of the siege in Marawi by the Daesh-inspired Maute-ISIS group, or a week since the commanderin-chief declared liberation of Marawi, we now announce the termination of all combat operations in Marawi.”

The termination of all combat operations apparently referred to the end of assault or offensive attacks against the terrorists.

Like Sereno, Carpio said Congress is only authorized to extend the proclamation of martial law if rebellion still “persists” but with the death of their leader Isnilon Hapilon and the liberation of Marawi, “any extension pursuant thereto is unconstitutional since the Maute rebellion already ceased.”

The two other SC justices not in favor of the extension of martial law – from Jan. 1, 2018 until Dec. 31, 2018 – were Alfredo Caguioa and Francis Jardeleza. Ten justices voted in favor of the extension.