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If the supermajorities in the House and Senate only had followed the Constitution and convened a joint session, the Supreme Court would not have to do the work assigned by the Constitution to two of the great branches of government.
In Fortun vs Arroyo, the belated Supreme Court ruling on President Gloria Arroyo’s imposition of martial law in Maguindanao in 2009, the justices defined the now-limited martial law power as essentially a joint power:
“It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power, not only sequentially, but in a sense jointly …”
They added: “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.”
Never mind the mixed metaphors; in the only previous ruling on the exercise of the martial law power under the 1987 Constitution, the Court is unequivocal about its role as well as that of Congress.
To be sure, this role of the Court’s is clearly defined in Art. VII, Section 18. Paragraph 3 reads: “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 …”
The main question before the Supreme Court, then, follows logically: Is there sufficient factual basis for Proclamation 216? (The main question in the other, unconsolidated cases on martial law is different: Did the Senate and the House err when they declined to convene a joint session after Proclamation 216 took effect?)
In the factual-basis cases, we can discern at least three judicial philosophies at work.
There is the position exemplified by Justice Noel Tijam, who told petitioner Rep. Edcel Lagman during the oral arguments: The Supreme Court is not a trier of facts, but you are asking it to look at the factual evidence to determine whether the Marawi crisis is a rebellion. The real response to Tijam is that looking at the factual evidence to determine whether the basis for declaring martial law is sufficient is exactly what the Constitution requires of the Court. We can call the timid Tijam position the minimalist or judicially conservative approach.
There is the approach illustrated by Justice Mariano del Castillo’s escalating questions about the scope of martial law. “It might embolden the President to later on declare martial law in Metro Manila, Luzon, the Visayas and the entire Philippines,” he told Solicitor General Jose Calida. We can call the Del Castillo question the pragmatic position.
Then there is the position of Chief Justice Maria Lourdes Sereno, who sought to both define the main question facing the Court and the complex context in which that question is being raised. “It is not the simple job of the Court to simply say that Marawi is under siege, and on that basis immediately concur with [the Duterte administration]that we immediately dismiss the petitions that have been brought before us. But rather our job is more complex,” she said. She recognized the challenge behind this legal incursion into virtually uncharted territory. “We need to find out how we can get out of this emergency situation by trying to define for the President—with all due respect—what can be done and what cannot be done.” We can call this “complex” view an expansive or judicially activist stance.
In the light of Calida’s extraordinary argument, that in fact the imposition of martial law does not give the President additional legal powers, this third position makes more sense. If even the government’s chief solicitor is confused about what exactly martial law does, the Court must show exactly “what can be done and what cannot be done.”
At the same time, the Court must ascertain the factual basis for the rebellion alleged to be taking place in the storied city of Marawi—as well as the chilling reports of abuses allegedly being committed by the government in Marawi. The Lanao del Sur chapter of the Integrated Bar of the Philippines has professed itself “utterly shocked” by the abuses. These, too, should be included in the scope of the Court’s defining work.
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