By now, everybody knows that Mindanao is under martial law by virtue of Proclamation No. 216 issued by President Rodrigo Duterte. The power of the president to place the entire country or any part of it under martial law is recognized in Section 18, Article VII of the Constitution. Resort to martial law, however, requires the existence of an invasion or rebellion, and public safety must require it.
Under the Constitution, Congress has the power to review and even revoke the proclamation of martial law. Two weeks ago, Congress expressed its support for the measure.
Likewise, the Constitution authorizes any citizen to file a petition in the Supreme Court for the purpose of ascertaining the factual basis for the proclamation of martial law.
The news media have reported that there are two cases pending in the Supreme Court relating to Proclamation No. 216.
One petition wants the Supreme Court to order Congress to convene and review Proclamation No. 216. Since Congress has already expressed its support for the proclamation, that petition appears to be moot and academic and is bound to be dismissed.
The other petition wants the Supreme Court to revoke Proclamation No. 216 on the premise that there is no factual basis to warrant it. This petition still raises a justiciable controversy. That is why the Supreme Court appears to have entertained the petition and has even allowed the parties to be heard in oral argument.
In a past essay under this column, it was pointed out that the prevailing jurisprudence regarding any judicial inquiry into the proclamation of martial law provides that the Supreme Court may void the proclamation if the president acted arbitrarily in resorting to martial law. The standard for judicial review regarding martial law, therefore, is not whether the president acted correctly, but whether the president acted arbitrarily, in issuing the proclamation. In other words, if there appears to be good reason for the president to believe that martial law is warranted, then the proclamation meets the constitutional test.
To repeat, Proclamation No. 216 already has the support of Congress. Since two elected branches of the national government are in favor of placing Mindanao under martial law, the Supreme Court, which is an unelected branch of the government, may be hard put to disallow Proclamation No. 216, absent an obviously valid reason to warrant otherwise.
At any rate, several questions taken up in the course of the oral arguments in the Supreme Court merits discussion.
The first is whether or not the entire Mindanao needs to be placed under martial law. One perspective has it that since Marawi City alone, and not the whole of Mindanao, is in a state of turmoil, there is no justification for President Duterte to place the entire Mindanao under martial law.
That perspective disregards the realities obtaining during a rebellion.
Proclamation No. 216 recognizes that rebellion is ongoing in Mindanao, Marawi City in particular, on account of the Maute and similarly inclined separatist groups operating in many hot spots in Mindanao. Even if the focus of the fighting is in Marawi City, many rebels and their armed supporters operate from outside Marawi City.
Firearms and supplies needed by these rebel groups in Marawi City are not always kept in the city. To avoid their detection and confiscation by the military, the guns and the supplies are kept in secret lairs all over Mindanao, ready for delivery to and use by the rebels who need them.
These rebel groups have a common goal—the creation of an independent moro state in Mindanao in violation of the Constitution and existing laws. Belligerents aligned with these separatist groups are not restricted to Marawi City; they are found throughout Mindanao, in sanctuaries for anti-government groups. Mamasapano in Maguindanao is one of them.
In other words, the mere absence of a shooting war in areas of Mindanao outside of Marawi City does not necessarily mean the absence of rebellion.
The second anti-martial law sentiment is the possibility that President Duterte will expand martial law to include Luzon and the Visayas if Proclamation No. 216 is sustained by the Supreme Court.
That sentiment smacks of pure speculation.
Placing the entire country under martial law is always a possibility, regardless of the ongoing rebellion in Mindanao, because it is a power which the Constitution vests in the president. So the mere fact that nationwide martial law is a possibility, is beside the point.
Anyway, if President Duterte does place the entire country under martial law without any legal justification for the measure, Congress and the Supreme Court can always step in, independently of each other, and disallow it.
In other words, it makes no sense to ask the Supreme Court to void Proclamation No. 216 for the flimsy reason that the president may get emboldened enough to expand martial law to Luzon and the Visayas, if the validity of the said proclamation is sustained by the High Tribunal.
Martial law under the current Constitution is hardly the authoritarian martial law contemplated in the 1935 and 1973 charters. Martial law under the current charter is for a limited duration, and is subject to congressional and judicial review. It simply creates a visible military presence in the area concerned, for the purpose of eliminating the rebellion in the most expeditious possible way, but with due regard for fundamental rights.
Despite martial law in Mindanao, no newspaper offices or broadcast stations in the island have been closed down by the military. Trial courts there remain empowered to order the release of anyone whose detention is unwarranted. Moreover, civilian authority remains in force there.
Martial law under Proclamation No. 216 is limited to sixty days. Any extension will require the consent of Congress. Even if the Supreme Court decides to sustain Proclamation No. 216, that decision does not prohibit the Supreme Court from reviewing any future extension of martial law.
Reservations about martial law? Enough already.