It now seems to be the latest learning, following the Supreme Court’s decision in the Mindanao martial law cases, that proceedings pursuant to the constitutionally conceded power to “review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law” are sui generis. I prefer to go, however, by the canon of parsimony that governs science: the simpler the category scheme, the better. That is another way of saying that where existing categories suffice, there is no need of ad hoc categories, nor need to conjure new ones.
Of course, the Supreme Court is, generally, not a trier of fact —which means that from the appellate court, the questions that the Court will confine itself to are questions of law. That, however, is not an iron-clad rule, because when it is alleged that there has been grave abuse of discretion on the part of any branch, agency, instrumentality or office of government, then perforce, the Court must inquire into facts to determine whether or not discretion has in fact been gravely abused.
It is of course true that the High Court has held that extradition proceedings are sui generis. The reason is obvious—and the distinctive categorization is justified. In such proceedings it is not guilt or innocence that is decided, nor are liabilities assessed. It is simply whether or not the person whose extradition is sought may be extradited in accordance with the provisions of the extradition treaty and with international law on extradition.
But in the case of the determination of the sufficiency of the factual basis for the proclamation of martial law, what sound reason is there to read it as a case apart from the general power of the Court to determine “whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government?”
It is no mere procedural nicety that is involved here, for the provision allowing for review of factual bases is susceptible of two readings. Under the first reading, the Supreme Court becomes the equal of the Chief Executive in the matter of the declaration of martial law—and if it disagrees with the Commander-in-Chief about the sufficiency of the factual bases for the declaration, then it can undo Martial Law. Under this reading, there would actually then be two commanders-in-chief: one, the President—who declares martial law; the second, the Supreme Court, that examines the facts itself and decides whether it shall allow Martial Law to remain in place or to be set aside. This would very like be the principle of the Roman Republic: having two consuls so that one checked on the other, and the two reigned together. And it was exactly because of this unwieldy arrangement that Julius Caesar emerged as dictator, because you cannot have two commanders with equal power commanding a single army!
The other reading is, for me, the more reasonable one: in matters of national emergency, the Constitution has reposed the power to cope with the contingency with the President. The role of the Supreme Court is nothing more and nothing less than what is enunciated in Article VIII, Section 1: to determine whether or not, in declaring Martial Law, the President gravely abused his discretion. Under this reading, the Supreme Court does not assume the position of a co-consul, or a second commander-in-chief. It will not make a determination of the need for martial law, although it will look at the facts and determine whether there was whim, arbitrariness, caprice in the declaration of martial law.
It will reasonably be asked: Then, if that is all that was meant, why explicitly provide for the Court’s power to examine the sufficiency of the factual basis, when the “broadened certiorari power” of the judiciary would have been sufficient? Two reasons: First, because it was not always clear that a challenge to the declaration of martial law posed a justiciable question. For a long time, it was thought to be a political question, and even the jurisprudence of the Marcos martial law era did not lay the matter completely to rest. The same question remains with respect to a declaration of a state of war. Would such a declaration be subject to judicial review? To leave no doubt, the 1987 Constitution explicitly provides for the justiciability of the issue. Second, the writ of certiorari is one that may issue from a Regional Trial Court, as it may from the Supreme Court or the Court of Appeals. The Constitution intended such a matter to be resolved by the Supreme Court.
This reading of the Constitution, to my mind, maintains that delicate but necessary calibration of powers between the three branches of government, and allows the President the latitude of discretion that a commander-in-chief needs. I sounded a warning before, and I echo it now: When a president is faced with what he perceives to be a genuine threat to the Republic, and a restrictive reading of the Constitution renders him impotent to deal with the menace, it becomes all the more tempting for such a president to sweep the Constitution aside and to arrogate to himself all the powers of State. This need not happen!