This is the final column in my series on the martial law decision, on Chief Justice Maria Lourdes Sereno’s concurring and dissenting opinion in Lagman vs. Medialdea. Her opinion is anchored on the main thesis that the President failed to lay down sufficient factual basis to declare martial law and suspend the writ in the entire Mindanao in Proclamation No. 216 and in his Report to Congress dated 25 May 2017.
At most, according to the Chief Justice, he was able to establish the existence of actual rebellion, and the danger to public safety, in Marawi City. However, she expressed that while she agreed with the position taken by Justice Antonio Carpio that martial law is valid only in Marawi City, she took the stance that it is valid not only in the city of Marawi, but in the entire province of Lanao del Sur of which Marawi is a part, and in the provinces of Maguindanao and Sulu as well. Justice Benjamin Caguioa agreed with the Chief Justice.
Chief Justice Sereno fired off her discussion with an enumeration of the contents of Proclamation and the President’s Report. She said, however, that no amount of strained reading of the two presidential documents comes close to a claim that rebellion is taking place anywhere else outside of Marawi City. Sereno then proceeded to enumerate the arguments laid down by Carpio on why martial law is valid only in Marawi; thus, a) the Proclamation and Report contains no evidence of actual rebellion outside of Marawi City; b) they keep on referring to the Maute group’s intent to remove from the Republic only “this part of Mindanao”; and c) the plan of the group was to wage the rebellion first in Marawi as a prelude to waging war in the rest of Mindanao, which means rebellion has not actually taken place in any other part.
The Chief Justice pointed out the divergence of her view with that of the main opinion written by Justice Mariano del Castillo, stating that the duty of the Court to inquire into the necessity of declaring martial law to protect public safety logically and inevitably requires the determination of proportionality of the powers sought to be exercised by the President. She insisted on the necessity of defining the metes and bounds of the areas to be validly covered by martial law, contrary to the view by the majority. Another point of divergence is the view when the Court determines the area coverage of martial law in accordance with the necessity of public safety test, the Court does not in fact substitute its wisdom for that of the President. According to Sereno, “Validating a Mindanao-wide coverage is indeed convenient for the Court but it is not right. If, to use the words of the majority opinion, the most important objective of Article VII, Section 18 is to ‘curtail the extent of the power of the President,’ then this Court miserably failed.”
Sereno then discussed in a lengthy and detailed fashion the parameters for the implementation of martial and the suspension of the writ, explaining in the process a wide range of topics which have bearing on the exercise by the President of his extraordinary powers under the Constitution. These relevant topics include the ability to legislate, operation of civil and military courts, ability to affect arrests, period of detention, treatment during detention, ability to conduct searches, ability to enter private properties, military blockades, ability to conduct surveillance, ability to examine Bank Deposits, Accounts, and Records and to Freeze Properties or Funds, and treatment of civilians and non-combatants. She also touched on the implications of martial law in international law.
The Chief Justice explained that while martial law is an extraordinary measure necessitating the exercise of extraordinary powers, the President, in the exercise of his commander-in-chief powers, does not have unbridled discretion as to when, where, and how martial law is to be declared. Among others, Sereno emphasized that President Duterte must not be allowed to broaden the use of martial law “to solve other social ills.” He does not have “unhampered discretion to wield his powers in any way and whichever direction he desires.” Indeed, the manner as to how martial law is implemented is not subject to the plenary discretion of the President. There are clear legal standards dictating what he can and cannot do. According to the Chief Justice: “These standards ensure that Marcosian martial law does not happen again and the foundations of a just and humane society envisioned by the Constitution remain intact.”
Last Saturday, Congress extended martial law to the end of 2017. While some legislators did their due diligence, it is unfortunate that the officials representing the executive branch did not make a good case for the extension. They knew that the extension had more than enough votes so in my view, the executive department took Congress for granted. I can assume that this is their thinking too on the Supreme Court given the wide latitude the Court granted to the President on when and how to exercise martial law.
In her Lagman opinion, Chief Justice Sereno highlighted the supreme duty of the High Court, as the guardian of the Constitution. The Court, she said, as the vanguard of the rule of law, must see to it that the rule of law is upheld. By being vigilant and faithful in applying the Constitution to how the President exercise the martial law powers of the presidency, the Supreme Court realizes the fullness of its existence as envisioned by the fundamental charter. In my view, this did not happen in Lagman vs. Medialdea. And, most likely in a new case questioning the extension of martial law, the result will be just as disappointing. But maybe not. Hope springs eternal and the Court might yet surprise us in the weeks and months to come.
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