At the resumption of the Supreme Court oral arguments on the declaration of martial law last June 14, Wednesday, Solicitor General Jose Calida argued the case for the government—that President Duterte’s Proclamation No. 216 was constitutional and in conformity with the constitutional requirements.
At the start, Calida gave a short narrative of the events that led to the issuance of this Proclamation placing the entire Mindanao under martial law. He proposed that if there is sufficient factual basis to declare martial law then it cannot be said that the President acted with grave abuse of discretion; that the burden is on the petitioner, not the respondent, to prove that there is insufficient factual basis for such declaration. He argued that the clashes between the Maute Group and the government point to the existence of rebellion which endanger public safety. These attacks by the rebels do not only occur in Marawi but also in other parts of Mindanao, he said.
Justice Mariano del Castillo asked: What is so fearsome about martial law, and why not just invoke the calling-out powers of the President? Calida said that in the President’s judgment martial law was the necessary tool to quell the rebellion. To the question by Del Castillo that the military was caught by surprise by the Maute attack, Calida answered that intelligence gathering is not perfect. He also said that there are linkages among the terror groups all around Mindanao. This warrants the declaration of martial law throughout Mindanao.
Justice Antonio Carpio asked if there is any report that Maute have staged rebellion in other areas of Mindanao. Calida said that the terrorist group had capability to sow terror in other parts of the island. Carpio however that rebellion requires actual rebellion—not merely capability.
Chief Justice Maria Lourdes Sereno said that in declaring martial law, the legal standards must be made known. What are the parameters of the powers in the exercise thereof; that the factual basis must have connection with the necessity. Calida, citing the constitutional provision, stated on the other hand that the Court may only review the factual basis but not the necessity for declaring. The chief justice, however , citing the constitutional provision, emphasized the phrase “when public safety requires it” which makes necessity, other than factual basis, reviewable by the court.
For his part, Justice Marvic Leonen explained that just possession of the flag with the Arabic script known as the Shebab in itself is not conclusive proof that it belongs to ISIS. In fact, Maute can be a criminal group pretending to be affiliated with ISIS. He said that it is possible that what happened in Marawi is simply “pintakasi” because the firefight was initiated by the military when they tried to arrest Isnilon Hapilon. He asked Calida whether it is possible for Isis conduit terror group to establish a caliphate in Southern Mindanao, to which the former answered in the affirmative. Leonen, however, mentioned a security expert saying that it is not possible because of ideological disharmony.
According to Justice Leonen, the problem in Marawi must be seen from the lens of the Islamic faith. Leonen then gave a discourse on the different Muslim sects particularly the difference between Sunni and Shia to be able to determine whether the Maute-ISIS are real or mere pretenders. So, according to Leonen, the propaganda of the Maute should be taken with a grain of salt, that is, the government should not take the raising of the ISIS flag hook line and sinker. He said that the proclamation of martial law may only be a reaction to the government’s failure of intelligence. He also draws attention to a name referred to as “boy” and “baby” contained in Arrest Order No. 1 which could mean that any person bearing these names could be arrested. He likewise scrutinized other official documents, including General Order No. 1, issued by the government after the declaration of martial law.
The most telling, and probably the most important exchange in the oral arguments was between the Solicitor General and Justice Carpio. The former asked: What are the powers of the President under martial law vis-à-vis calling-out powers? If my readers recall the first column of this series, I pointed out the distinction between these two commander-in-chief powers in terms of when they can be used. Carpio explained to Calida that martial law in fact does not really confer new powers to the president that he does not yet possess. To the surprise of many, Calida agreed and even described martial law as calling-out powers “with an exclamation point” or “in steroids.” He recalled the latter description after Chief Justice Sereno reminded him that steroids have proven to cause long damage to the health of people who abuse them.
This exchange affirmed the proposition that I have been arguing for weeks now, that martial law has been sanitized by the 1987 Constitution. Historically, this was a power granted to the President during the war with the US colonizers using the power against Philippine insurgents in the Philippine-American war early in the 20th century. The 1935 constitutional convention put it in as the delegates anticipated World War II and to counter the threat of communist insurrection. Ferdinand Marcos, however, twisted it and used martial law to establish a dictatorship, purportedly to build a new society but really just to stay in power and for him and his cronies to plunder our economy. The 1987 Constitutional Commission, after debating whether martial law should even be a power granted again to a President, decided to compromise and allowed such power but sanitized so never again would we have a Marcos. Thus, martial law cannot abolish legislative councils, derogate the Bill of Rights, supplant civil courts, and replace local governments.
This is the genius of the framers of the 1987 Constitution: in defanging martial law, it reduced the power and made it equivalent to the calling-out power which allows the President to order the Armed Forces of the Philippines to suppress lawless violence.
Indeed, all the actions of the President and the military to address the Marawi crisis does not require martial law. Martial law’s impact, as Calida himself says, is psychological rather than legal. This is not to say it has no impact on real lives: for those in war zones, in urban poor areas, and in rural areas, armed groups always pose a threat to the security of individuals and communities. Martial law enhances that threat and makes the military more intimidating. In Marawi, that might be welcome, but in other places, where there is conflict because of social injustice, martial law can lead to abuse of power.
The new martial law has no legal consequences but it does have real outcomes. The terrorists in Marawi seem to be liking it, basking in the international attention and recognition they are getting. Civilians in Mindanao both welcome and are threatened by it. We will see in the days ahead, especially if it is extended to the whole country, whether this new martial law is good or bad for the country.
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