Ruling before reasoning

The Supreme Court’s decision dismissing all petitions questioning the joint congressional resolution extending martial law in Mindanao for one year was not unexpected; as the threshold cases since 2016 have shown, a majority in the Court now exists that can justify anything that President Duterte wants. The threshold has moved. And yet there are surprises, of the reading-the-judicial-tea-leaves sort. The most important is the number of justices who voted against extension: five—up from the number of justices who argued that martial law was not at all constitutional in the original decision: one.

But the majority ruling, and the separate concurring and dissenting opinions, will be released at the earliest only by today. Until then, we will not know exactly which parts of the ruling are surprising rationalizations, or which parts of the dissents are reasonably surprising. This days-long gap between announcement of ruling and release of opinions is not, as management gurus would say, best practice. It leaves much to be desired; it opens the door to understandable speculation by members of the political class; it promotes an immature polity, which learns to place ruling before reasoning.

Surely, for the true democrat, the credibility, the weight, of a judicial decision does not lie merely in the authority of the judge (“because he said so”) but also and perhaps even mostly in the persuasive power of the judgment (“because it is so”). In point of fact, the entire tradition of judicial review owes its beginnings to the compelling arguments that US Supreme Court Chief Justice John Marshall gathered, like a massing army, in the famous case of Marbury vs Madison—rather than in the fact of the decision alone.

But, here we are. The spokesperson of the Supreme Court has made the announcement, the yearlong extension despite the defeat of the Maute group in the siege of Marawi City has been declared constitutional, the vote is fixed at 10-5. The official statement says tersely: “The President and Congress have sufficient factual bases” to make the one-year extension. Why? “The rebellion that spawned the Marawi incident persists.”

We still do not know how, or whether, the Court majority threaded the needle that connects the highly specific conditions set by the Constitution with the reality “on the ground,” as both bureaucrats and battalion commanders learn to say. A state of rebellion is not enough of a basis to impose martial rule; public safety must be invoked, too.

That this will likely be the case, in this case, is a matter of deep concern, because the prospect of nationwide martial law becomes more imminent. Part of the government’s argument for extension was the communist insurgency; this had nothing or very little to do with the threat that the Islamic State may pose to the country, but the government used it to reinforce its plea. If the mere persistence of a rebellion is ground for martial rule, then the continuing communist insurgency—decades old, but also much weaker now than during the Marcos years—becomes a ready excuse to extend the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus not only across time but also across space.

It should be interesting to read the dissents of the four justices who had initially agreed that martial law was justified but limited the scope of the imposition. What made them change their minds, and what are their reasons for supporting the view that the one-year extension is violative of the Constitution?

But it should be even more instructive to see which justices used history itself as proof that martial law does not end insurgencies, it animates them. Before Ferdinand Marcos issued Proclamation 1081 placing the entire country under military rule, the communist insurgents numbered around 1,000. By the time Marcos and his family fled Malacañang, over 13 years later, the communists numbered well over 25,000.

Yes, history is not jurisprudence. But it is the larger context out of which jurisprudence emerges. We are concerned that the ruling rendering the one-year extension constitutional fails to truly reflect our painful history and our present reality.