Clothing tyranny with constitutionality

By Val G. Abelgas

Supreme-Court-2With the Supreme Court basically showing reluctance to review President Duterte’s martial law declaration and ceding its power to the President to determine the territorial scope of martial law, it now seems that the country’s slide to tyranny is coming to near certainty. Congress has earlier given up its power to review the bases for the martial law declaration by refusing to call for a joint session for a debate on the issue and instead voting to endorse the President’s action without any discussion.

The high tribunal opted to ignore Duterte’s threats to jail those who criticize or oppose his martial law declaration and his earlier defiant statement that he would listen only to the military on whether or not martial law should be lifted, and not to Congress or the Supreme Court.

The Supreme Court was oblivious to the authoritarian tendencies of the President as shown by his repeated warnings to the judiciary to stop issuing temporary restraining orders against government projects, his orders to policemen and the military to ignore the courts’ orders against arresting suspects or searching homes without the proper warrants, his encouragements to policemen that have led to thousands of victims of extrajudicial killings, his repeated threats to the judiciary, the legislative and critics not to block his so-called reforms, and many more.

The capitulation of the Supreme Court, the people’s last resort to uphold democracy and the rule of law, was evident in the martial law ruling. Instead of undertaking a thorough review of the factual bases of the martial law declaration over the entire Mindanao region, the Court, with the concurrence of 11 justices, ruled: “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.”

The tribunal is mandated by the 1987 Constitution to undertake an impartial and through review of the factual bases for the martial law declaration, but it instead said it was not equipped with facts to conduct such review and basically left it to the President to make the determination by simply showing probable cause – not incontrovertible facts – that rebellion or invasion exists. Thus, its ruling: “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 Supreme Court ruling also left the door open for the President to extend and expand his martial law declaration by saying: “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.”

This was also very evident when it said: “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.”

With only four justices expressing dissent, the Court basically abdicated its review powers over the declaration of martial law and the suspension of the writ of habeas corpus. What will stop President Duterte now to declare martial law all over the country when the police or the military claim that the Maute Group or the Abu Sayyaf or any other insurgent group has launched a rebellion in Bohol or in Quiapo? Duterte can claim that probable cause exists to declare martial law beyond Mindanao.

Congress – that renegade body of politicians – has shown it is subservient to its otherwise co-equal branch by refusing to perform its constitutional duty of calling for a joint session to discuss and to vote whether or not there was factual bases for the martial law declaration. In fact, the leader of the Lower House – clearly the inferior part of Congress – Speaker Pantaleon Alvarez has not only avidly defended the martial law declaration in Mindanao, but also openly pushes a five-year martial law period to last until the end of Duterte’s term!

The same guy who has shown no respect for the Rule of Law when he threatened to jail and disbar three Court of Appeals justices for ordering the release of six Ilocos Norte officials being held hostage by the House of Representatives in its chambers, and who said he would tear up any Supreme Court ruling against martial law, now says the military needs five years to eliminate the threat of rebellion in Mindanao after his boss promised to remove the Maute Group from the bowels of the earth in 60 days.

Fortunately, the military leaders are not as kiss-ass as the country’s congressional leaders and said a five-year martial law would be too long and that any extension beyond the 60 days allowed by the Constitution should be based on an “intelligent basis,” meaning after a thorough examination of the actual field situation and its effects on the country and the population.

While I agree with the opinion of Associate Justice Antonio Carpio that martial law should have been declared only in Marawi City, where rebellion obviously exists, I must agree with the words of lone dissenter Justice Marvic Leonen when he warned against the Supreme Court repeating the same mistake when the tribunal legitimized President Marcos’ martial law declaration in 1972 with only Justice Claudio Teehankee dissenting.

“Never again should this Court allow itself to step aside when the powerful invoke vogue powers that feed on fear but could potentially undermine our most cherished rights. Never again should we fall victim to a false narrative that a vague declaration of martial law is good for us no matter the circumstances. We have the courage to never again clothe authoritarianism in any disguise with the mantle of constitutionality,” Leonen concluded in his 92-page dissenting opinion.

This was what the Supreme Court did in its favorable ruling – it clothed authoritarianism with the mantle of constitutionality.



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