Voice of dissent assails ‘vague’ ML declaration

It’s one magistrate’s opinion against those of his 11, or 14, other colleagues. And it’s a much younger voice arguing with the many older ones who have presumably spent more years than him in thinking about the law.

Yet Supreme Court Associate Justice Marvic M.V.F. Leonen stood his ground as the lone full dissenter to the tribunal’s ruling last Tuesday, which upheld President Duterte’s Proclamation 216 declaring martial law and suspending the privilege of the writ of habeas corpus for 60 days in the whole of Mindanao. I think that his lengthy dissenting opinion – 95 pages to the majority’s 82-page decision – deserves thoughtful reading and public discussion.

Three separate petitions, all questioning the sufficiency of the factual basis of the President’s edict, urged the Supreme Court to declare it unconstitutional. The petitioners went to the SC after the Senate and the House of Representatives – which, per the Constitution, should have met jointly to vote on the proclamation – instead separately passed resolutions endorsing it.

Eleven justices voted yes to martial law in the whole of Mindanao. Chief Justice Maria Lourdes Sereno and two other magistrates voted to restrict its coverage to Marawi City, where, since May 23, state troops aided by aerial bombings have been fighting heavily-armed men of the Maute and Abu Sayyaf groups whom the government tags as “terrorists.”

Pointing out that Proclamation 216 grants the President undefined powers, Justice Leonen absolutely rejected martial law in the entire Mindanao or even just in Marawi City. Moreover, he said the factual bases for the proclamation submitted to the SC were insufficient and lacked credibility. “Many of the facts presented are simply allegations,” he noted, “most are based on inference contradicted by the documents presented by the respondents themselves.”

Such “a vague declaration of martial law, which contains no indication as to who it actually empowers and what fundamental rights will be suspended or bargained” is not allowed by the Constitution, he said. Precisely, he argued, “we should be stricter, more precise, and more vigilant of the fundamental rights of the people.”

(As against an impulsive use of the state’s mailed fist, the 1987 Constitution provides safeguards to the President’s exercise of the power to declare martial law and suspend the privilege of the writ, in light of the wanton abuses and human rights violations committed under Ferdinand Marcos’ 14-year martial-law dictatorship. It also has a stronger, broader Bill of Rights than previous charters.)

In its submissions to the court, the government claimed that the Maute-Abu Sayyaf armed actions in Marawi constituted rebellion (one constitutional basis for declaring martial law, “when the public safety requires it”). But Leonen declared:

“Terrorism does not merit a vague declaration of martial law and a wide undefined geographical area containing other localities where no act of terrorism exists…. The groups committing atrocities in Marawi are terrorists. They are not rebels. They are committing acts of terrorism. They are not engaged in political acts of rebellion… There is no rebellion that justifies martial law.”

He explained that the armed groups’ actions in Marawi are designed to “slow down the advance of government forces and facilitate their escape” and “not designed to actually control seats of governance.” The provincial and city governments are “not rendered inutile” as to require the military to take over all aspects of governance, he emphasized.

The facts presented to the court, Leonen continued, are not sufficient to reasonably conclude that the armed hostilities and lawless violence happening in Marawi City are “for the purpose of removing from the allegiance of such government or its laws the territory of the Philippine Islands or any part thereof.” Neither do the facts show convincingly that “public safety” requires martial law. “Public safety is always the aim of the constitutional concept of police power,” he pointed out, quickly adding: “Respondents failed to show what martial law would add.”

Martial law, he stressed, “is not the constitutionally allowed solution to terrorism.” 

Then he warned:

“Elevating the acts of lawless criminal groups which use terrorism as tactic to the constitutional concept of rebellion acknowledges them as a political group. Rebellion is a political crime. We have acknowledged that if rebels are able to capture government, their rebellion, no matter how brutal, will be justified.”

Leonen also observed that General Order No. 1, issued by Duterte, expands martial law by instructing the AFP to “undertake all measures to prevent and suppress all acts of rebellion and lawless violence in the whole of Mindanao….” Thus, all acts of lawless violence throughout Mindanao, even if unrelated to the hostilities in Marawi, have been included in GO No. 1.

Furthermore, he said Proclamation 216’s vagueness hides its “real intent”: Operational Directives for Implementation of Martial Law, issued by AFP chief Gen. Eduardo Ano, orders his forces to “dismantle the NPA, other terror-linked private armed groups, illegal drug syndicates, ‘peace spoilers’ and other lawless armed groups.” Deceptively, the factual bases submitted by the government to the court do not cover these groups.

Hence Leonen exhorted his colleagues: “Never again should this court allow itself to step aside when the powerful invoke vague 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.”

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