Validity of Martial Law declaration in Mindanao

The Supreme Court (SC) which is vested with the power to “review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law (ML) or the suspension of the privilege of the writ of habeas corpus” (privilege), under Section 18, Article VII of the Constitution, has already ruled as valid, President Duterte’s PD 216 declaring ML and suspending said privilege in the entire Mindanao region. Eleven Justices concurred with the decision penned by Justice Mariano del Castillo, while three  Justices (Chief Justice Maria Lourdes Sereno, Antonio T. Carpio, Alfredo Caguioa) issued separate opinions and one Justice (Marvic Leonen dissented. It is thus quite clear that an overwhelming majority of the Court has declared as Constitutional, Duterte’s PD 216 dated May 23, 2017 who even appealed to all of us “to sheathe our swords and pause for a while to bury our dead, including our differences and prejudices.”

Indeed, the SC decision appears to be quite clear and extensive enough as it has covered every aspect of the Constitutional provision on the declaration of ML and suspension of the privilege. First of all, the SC clarified that “in reviewing the factual basis of the proclamation or suspension, (it) considers only the information and data available to the President prior to or at the time of the declaration; it is not allowed to undertake an independent investigation beyond the pleadings,” unlike Congress which “may take into consideration not only data available prior to but likewise events supervening the declaration” as well as “delve into the accuracy of the facts presented before it.”

Secondly, the SC also pointed out that under the 1987 Constitution, these extraordinary powers of the President as Commander- in-Chief of the Armed Forces, may be exercised only when there is actual invasion or rebellion and public safety requires it. It also imposed (1) a time limit of sixty days; (2) review and possible revocation by Congress; and (3) review and possible nullification by the SC.

Thirdly, the SC likewise emphasized that the exercise of these powers by the President is his judgment call and “the determination by this Court as to whether there is sufficient factual basis for the exercise of such powers, must be based only on facts or information known by or made available to the President at the time he made the declaration or suspension, which facts or information are found in the proclamation as well as the written Report submitted by him to Congress x x x based on the situation existing at the time that the declaration or suspension was made or past events.”

Fourth, in determining the sufficiency of the factual basis of the declaration and/or suspension, the Court should not “expect absolute correctness of the facts stated in the Proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all the facts reported to him due to the urgency of the situation. To require precision in the President’s appreciation of the facts would unduly burden him and therefore impede the process of his decision making.” “After all” the court added, its “review is confined to the sufficiency, not accuracy, of the information at hand during the declaration or suspension: subsequent events do not have any bearing.”

Fifth, the SC also explained the meaning of rebellion mentioned in Constitution as referring to “rebellion defined and penalized under Article 134 of the Revised Penal Code which has the following elements: (1) there is (a) public uprising and (b) taking arms against the Government; and (2) the purpose of the uprising or movement is either (a) to remove from the allegiance of the Government or its laws: (i) the territory of the Philippines or any part thereof; or (ii) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.”

Sixth, in determining the existence of rebellion, the SC said that “the President only needs to convince himself that there is probable cause or evidence showing that more likely than not, a rebellion was committed or being committed. Probable cause merely necessitates an “average man (to weigh) the facts and circumstances without resorting to the calibration of the rules of evidence of which he has no technical knowledge. He merely relies on common sense (and) x x x needs only to rests on evidence showing that more likely than not, a crime is being committed by the accused.”

Seventh, the SC summarized that the parameters for determining the sufficiency of the factual basis are: (1) actual rebellion or invasion; (2) public safety requires it; and (3) probable cause for the President to believe that there is actual rebellion or invasion.

After explaining the extent of its power and laying down these parameters, the SC found the following facts in Proclamation 216 as sufficient bases proving that actual rebellion exists:

1. The Maute Group and other lawless armed groups are openly attempting to remove from the allegiance of the Government this part of Mindanao, starting with the City of Marawi and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and maintain public with the clear intention to establish an Islamic State known as DAESH wilayat or province covering the entire Mindanao;

2. Cutting of vital lines of transportation and power; recruitment of young Muslims to further expand their ranks and armed consolidation of their members throughout Marawi; decimation of a segment of the city population who resist; brazen display of DAESH flags;

3. Pronounced difficulty of Law Enforcement and other government agencies in sending their report to the Chief Executive due to city-wide power outages; preventing the BJMP from performing their functions; attack and occupation of several hospitals, medical services; bridge and road blockades effectively depriving the government of its ability to deliver basic services, hampering troop reinforcement for restoration of peace and order and hindering the movement of both civilians and government personnel to and from the city;

4. Network and alliance building activities among terrorist groups and lawless armed men to attain their long standing goal of absolute control over the entirety of Mindanao.

It appears therefore that the declaration of ML in that part of the country has factual basis going the parameters establish by the SC. But as to whether the declaration can be extended or expanded to cover even the entire Philippines, are issues that must also be resolved and will be discussed in a subsequent column.

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