One step forward, two steps back

I don’t know if Javellana vs. Executive Secretary was the longest decision in the books during my time in law school. To wide eyed newbies, that surely seemed to be the case. Filling pages 30 to 392 of that memorable volume 50 of the Supreme Court Reports Annotated (SCRA), it was the first case I ever read as a law student.

Josue who? I entered law school at the tail end of the 20- year Presidency of Ferdinand Marcos. Javellana (first name Josue) was required reading of every freshman. It was the seminal Supreme Court decision where the Court had the audacity to say that there was no valid ratification of the draft 1972 Constitution but didn’t have the nerve to do anything about it. Until the 1986 EDSA revolution and the challenges against its own spawn Constitution, there was hardly any landmark decision to detract from the sway of  Javellana. It was the bedrock of President Marcos’ authoritarian rule.

This week’s Lagman vs. Medialdea, at 490 pages – legal size, is also a colossal read. It does not have the sordid antecedents of Javellana but it commands equal intellectual curiosity. It is the first decision of the Supreme Court interpreting the Martial Law power of the 1987 Constitution, on the merits.

Some important principles. (1) The Lagman main opinion is a trove of treats. One of my personal favorites is its reexamination and reversal of their statement in the earlier case of Fortun vs Macapagal Arroyo. Then they said that the Court can only act after or in default of Congress’ automatic exercise of its own power. Lagman is now authority for the proposition that the Court’s power to review the sufficiency of the factual basis is independent from the Congressional review power.

(2) The majority also acknowledged that while the Martial Law powers available to the President are graduated from most to least benign: first, the calling out power; second the power to suspend the privilege of the writ; and third, the power to declare Martial Law, he is not at all required to exhaust the powers, one after the other. Whichever weapon he chooses to wield given the set of circumstances he confronts is the President’s judgment call.

The early birds’ worm. To date, the most controversial part of the decision is the seeming carte blanche given the President to declare Martial Law anywhere in the entire Philippines even though the factual bases presented in the petitions are limited only to Marawi or, worst case, parts of Mindanao only.

Even fans of judicial restraint are wondering whether the Court is conceding to the Executive too much good faith and, hence, diluting its power to review the sufficiency of the factual bases. It should not be enough to rely on the great responsibility that comes with great power. Rather, shouldn’t the rule be “with great power comes great scrutiny”? Rather than stepping up, is the Court actually stepping down?

Its really odd when you think that the take off is from the lesser power to declare Martial law in a small area, you recognize the power to extend it over a greater area. Didn’t the Constitution intend that to be the other way around?

Moving on. The President typically likes to test the limits of his power, but if there is anything we’ve learned from Duterte Year 1, its usually for show. He may play it fast and loose here and there, inflict some debt payment appointments on the taxpayer and harbor a few sacred cows. But in his treatment of the co-equal branches, apart from the preening and the cagey threats, he has not done anything to formally test the powers and prerogatives of Congress or of the Supreme Court.

It is interesting to speculate on how he deals with the continued by-passing by the Commission on Appointments (CA) of his nominees to the Cabinet. Conversely, the CA is also on deck on how it responds to the continued re-appointments of the President’s men.

The power of the President to appoint the high officials in whom Presidential confidence will repose enormous power is one shared with the CA. Under his watch, the CA has been utterly activist with their unprecedented rejection of Secretaries Yasay and Lopez.

3 for 3. While three of his cabinet members, Ubial of Health, Taguiwalo of Social Welfare and Mariano of Agrarian Reform, have not been rejected, they have been by-passed twice. Under a new rule of the Commission on Appointments – one long overdue – a third bypass would mean their outright rejection.

The President issued ad-interim appointments for the three last July 4. Should the CA persist on its by-pass tear, these three would be on the road to rejection. This would raise the CA body count to 5 and will surely test the President’s promise not to interfere.

Say it isn’t so. The heights to which the Special Action Force (SAF) of the Philippine National Police were lionized, because of the massacre or martyrdom of the 44 in Mamasapano, was quite unprecedented. I recall seeing a giant mural depicting each fallen soldier which mirrored the nation’s grief. The tragic sacrifice of this band of bothers galvanized every Filipino in righteous anger directed at the government, short term, and in firm resolve to understand the fundamentals of the Bangsamoro puzzle.

How sad that this hallowed image created for the SAF is now slowly undermined by the news of possible anomalies under their watch. As the government’s answer to the desperate situation in Bilibid, these battle hardened and sacrifice strengthened corps were seen as the surefire solution to wall out the cancer of corruption wafting out from inside.

As of now, the investigation is underway. We are among the hopeful that the accusations, from no less than the Secretary of Justice, are proven false.