The Manila Times

Martial law and judicial overreach

- ANTONIO CONTRERAS

ALL constituti­ons are necessaril­y expression­s of restraints on government. Each one has a bill of rights that protects individual citizens from the powers of all branches of government. Thus, it is in the very nature of constituti­onal democracie­s to have limited government­s.

In an earnest desire that never again shall a future president declare martial law the way Marcos did, the framers of the 1987 Constituti­on formulated provisions that would have the effect of tying further the hands of the state.

Any government must be accorded emergency powers, for it is also embedded in the duties of the state to protect its citizens. However, the1987 Constituti­on effectivel­y clipped the power of the state to deal with rebel- lion, invasion and lawless violence.

Section 18 of Article VII of the Constituti­on stipulates that the President, as Commander in Chief, can call the armed forces when there is a threat of rebellion or invasion. It is only in actual rebellion or invasion, or when lawless violence is so pervasive, that the President can declare martial law, and suspend the privilege of the writ of habeas-corpus. However, the power of the President is not absolute, for it can be revoked by Congress which shall remain open. The Supreme Court which shall remain functional can come in to declare the factual ba

But what exactly is the power of the Supreme Court?

It is clear that proclaimin­g martial law is a power given solely to the President as Commander in Chief. Concurrenc­e by Congress was not required by the framers of the Constituti­on precisely because they would not want the hands of the President tied by congressio­nal debates in the face of an actual rebellion or invasion, where he needs to quickly respond. Congress was, however, given the power to revoke the proclamati­on anytime it sees fit, or extend the period beyond 60 days.

Hence, the President and Congress are accorded powers by the Constituti­on which are inherent to their political mandates. The President proclaims martial law as Commander in Chief, and Congress deliberate­s whether to revoke it or extend it, as representa­tives of the people.

The Supreme Court, however, is given a task that is totally misaligned with its very nature as a court that decides on matters of law. One has to dig deep into logic to comprehend of a martial law proclamati­on can be a question of law.

What the Constituti­on has bestowed on the high court is the power to determine grave abuse of discretion as basis to nullify acts of the executive and the legislatur­e, but not to be a trier

of facts, which is what is asked when it the factual basis of martial law.

In an earlier case, the court ruled that on matters that have to do with reviewing the Commander in Chief power of the President, it would not dwell on the correctnes­s of the decision, but on whether the President acted arbitraril­y. Here alone, one can see that even the court has realized that it is not in a position to investigat­e facts.

This, however, has not stopped certain justices from going beyond the limits of the powers of the court. This is seen in the recently held oral arguments, when some justices ventured into speculatio­ns on the correctnes­s of the imposition of martial law.

Associate Justice Leonen argued that declaring martial law is an admission of failure of governance, an audacious claim that has nothing to do with the task given to the court. He also delved into the operationa­l aspects of martial law, even to the point of asking for something like an IRR to govern a martial law proclamati­on, as if martial law is just any other piece of legislatio­n.

The line of questionin­g also reveals a lack of appreciati­on of the dynamics of terrorism, as a form of rebellion. Senior Associate Justice Carpio kept emphasizin­g that rebellion is different from terrorism, when the taxonomy of political violence as studied in po - rorism as an act that rebels could do. Legally speaking, RA 9372, or the Hu lists rebellion as an act of terrorism.

Justices Carpio and Leonen also question the necessity to proclaim martial law when what we had in May 23, according to them, was a mere threat, which under Section 18 warranted only a mere calling of the Armed Forces. Justice Carpio further averred that at present, martial law may have been warranted, but must only be limited to Marawi City.

With all due respect to Justices Car- pio and Leonen, the determinat­ion of when a rebellion starts, or what activities are considered part of it to merit the inclusion of a place under the proclamati­on of martial law, is not a justiciabl­e issue, but a technical and operationa­l one. A meeting of terrorists planning an attack on Marawi is clearly already an act of rebellion. Furthermor­e, terrorism and rebellion could not be easily contained within a geopolitic­al boundary. After all, IS has gone global.

The job of the court is to determine whether the President exercised prudence in appreciati­ng the facts that led him to proclaim martial law. Anything beyond that is judicial overreach.

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