Judicial review of martial law

The recent Supreme Court decision declaring Proclamation No. 216 constitutional is the latest addition to a long list of judicial rulings on the executive’s use of extraordinary powers in dealing with urgent situations. But, unlike previous rulings since 1986, this one reflects a disturbing return to the paradigm of a strong presidency.

Two aspects of the majority’s ruling confirm this.

First, the high court manifests what seems to me an almost dutiful readiness to affirm the President’s action, and a profound reluctance to undertake an impartial review of the sufficiency of the factual basis for declaring martial law, as the 1987 Constitution mandates. The ruling says: “A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing Proclamation No. 216, had sufficient factual bases tending to show that actual rebellion exists.”

This may suggest a conclusion arrived at after a thorough review by the Court. But, the ruling betrays its nervousness in undertaking its review function by adding: “After all, what the President needs to satisfy is only the standard of probable cause for a valid declaration of martial law and suspension of the privilege of the writ of habeas corpus.”  The Court, in effect, declares that the chief executive only needs to produce evidence that rebellion probably exists for martial law to be considered valid.

Second, and more crucially, the Supreme Court’s ruling on Proclamation No. 216 practically cedes to the President the absolute right to determine the territorial scope of martial law. “Clearly, the power to determine the scope of territorial application belongs to the President… To reiterate, the Court is not equipped with the competence and logistical machinery to determine the strategical value of other places in the military’s efforts to quell the rebellion and restore  peace. It would be engaging in an act of adventurism if it dares to embark on a mission of deciphering the territorial metes and bounds of martial law.” I find this statement dangerous.

This unnecessary admission by the Court paves the way for a nationwide declaration of martial law. If the military says that some elements of the Maute and Abu Sayyaf groups fighting in Marawi have been spotted in other parts of the country beyond Mindanao, like Metro Manila, what will stop the President from extending the scope of martial law to cover the entire country?

The ruling states: “The Constitution grants him (the President) the prerogative whether to put the entire Philippines or any part thereof under martial law. There is no constitutional edict that martial law should be confined only in the particular place where the armed public uprising actually transpired. This is not only practical but also logical.” I submit that this is a virtual surrender of the Court’s review powers, a shameful abdication of its essential constitutional function with regard to martial law.

The Court adds: “Martial law is an urgent measure since at stake is the nation’s territorial sovereignty and survival. As such, the President has to respond quickly.” What that response may entail in practice can include a broad range of things under martial law. As the events in Marawi have shown, it can include the aerial bombing of suspected enemy lairs within the city proper, the raiding of homes, the commandeering of private facilities, the widespread destruction of private and public property, and the restriction of civil rights and freedoms. In the face of an emergency situation, the Constitution suggests a thoughtful calibration of the appropriate response.

There is no way one can look at images of devastation in Marawi today without asking whether any of this could have been avoided, or whether the state is not obliged to pay reparations to those whose livelihood and properties have been destroyed. To ask this is surely not to take anything away from the heroism and sacrifices of the military in their valiant effort to clear Marawi of the Maute terrorists. It is certainly worth noting that none of the abuses associated with martial law during the Marcos years have been reported in the Marawi crisis. The distinct impression that one gets is that our soldiers have acted only with utmost professionalism and concern for the public welfare and safety, to the point of putting their own lives in extreme danger. That, indeed, is very reassuring.

But, one cannot be complacent about the dangers that martial law poses to ordinary citizens, particularly since the Commander in Chief himself has a tendency to express a perverse acceptance of such abuses when speaking to the troops.

As Justice Antonio Carpio warns in a separate opinion, in which he affirms the validity of martial law for Marawi but not for the whole of Mindanao: “The Court cannot simply gloss over this Presidential mindset that has been publicly broadcast to the nation and to the world. Any sign of acquiescence by the Court to this Presidential mindset could be fatal to the survival of the 1987 Constitution and our democracy. The Court cannot play with the fire of martial law which could turn into ashes the very Constitution that members of the Court are sworn to preserve and defend, a tragic event that once befell the Court in 1972 and brought the Court to its lowest point in its history.”

In 1972, Marcos was so confident he had popular support that he threatened to declare a revolutionary government if the Supreme Court struck down his martial law proclamation. The high court decided not to, wrongly believing this was the only way to preserve the rule of law. One hopes we are not seeing history repeat itself.