Magnificent dissent on martial law

As always, for columns like this, I begin with a disclosure. Associate Justice Marvic Leonen is a close friend and a long-time colleague. We met in 1985 when we were both students at the University of the Philippines College of Law and members of the UP Law Paralegal Volunteer Organization. We also co-founded a human rights and environmental law organization together. We have been colleagues at the UP Law faculty for decades.

This association with Justice Leonen does not stop me from being objective about his dissent in Lagman vs. Medialdea, the martial law decision of the Supreme Court. In fact, for the record, I am inclined toward the arguments of Justice Antonio Carpio in his concurring and dissenting opinion in Lagman where the latter limits the validity of martial law to Marawi. From the beginning, having sources on the ground and looking closely at what was happening, it was clear to me that the Maute group in Marawi was committing rebellion. They are terrorists, yes, but they are also committing rebellion and public safety imperatives could justify a martial law declaration. I think the main opinion’s dichotomy of rebellion and terrorism is wrong and I think Justice Leonen’s distinction between the two, while policy wise and politically speaking is compelling, fails technical legal scrutiny.

Having disclosed my reservations about the Leonen conclusions, let me be clear though that I think Justice Leonen has done the country a great favor with this great and magnificent dissent. I echo the words of veteran journalist Glenda Gloria who posted in Facebook: “A thought-provoking dissenting opinion. Which only deep reflection, nuanced thinking, long conversations with players on the ground, and solid commitment to peace can bring about. Thank you for this, Justice Marvic Leonen.”

The gist of the Leonen dissent is that martial law and the suspension of the writ of habeas corpus are unjustified because first, the group committing atrocities in Marawi are terrorists and not rebels. They are committing acts of terrorism and are not engaged in political acts of rebellion. Second, there is no sufficient factual basis, contrary to the submission by the respondents, to declare martial law. Third, the declaration of martial law is vague and unduly expansive. These make it unconstitutional.

On his first point, Leonen insists that the Maute group are not rebels but terrorists. They are not engaged in political acts of rebellion. In the words of Leonen “Their ideology of a nihilist apocalyptic future inspired by the extremist views of Salafi Jihadism will sway no community especially among Muslims.”

For Justice Leonen, “There is no rebellion that justifies martial law. There is terrorism that requires more thoughtful action.” He points out the political consequences of recognizing the Maute terrorists as rebels: “Elevating the acts of a lawless criminal group which uses 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. Also, by acknowledging them as rebels, we elevate their inhuman barbarism as an “armed conflict of a non-international character” protected by International Humanitarian Law. We will be known worldwide as the only country that acknowledges them, not as criminals, but as rebels entitled to protection under international law.”

In effect, we are glorifying the Maute terrorists when we call them rebels, making them equivalent to Luis Taruc, for example, Huk rebel leader from the 1960s whom we have just raised to the status of national hero.

Leonen rightly says: “I honor the sacrifices of many by calling our enemy with their proper names: terrorists capable of committing atrocious acts. They are not rebels desirous of a viable political alternative that can be accepted by any of our societies. With their plans disrupted and with their bankrupt fanaticism for a nihilist apocalypse, they are reduced to a fighting force violently trying to escape. They are not a rebel group that can hope to achieve and hold any ground.”

On the insufficiency of factual basis to declare martial law, Justice Leonen points out: “The government’s presentation of facts and their arguments of their sufficiency are wanting. First, there are factual allegations that find no relevance to the declaration of martial law and the suspension of the privilege of the writ of habeas corpus. Second, there are facts that have been contradicted by Open-Source Intelligence sources. Lastly, there are facts that have absolutely no basis as they are unsupported by credible evidence.” For instance, respondents did not reveal their sources to support the insinuation that the ASG Basilan, AKP, Maute Group, and BIFF have vowed loyalty to the ISIS and that these groups formed an unholy alliance.

On his third argument that the Proclamation No. 216 is constitutionally vague, Leonen is of the opinion that the scope of martial law has been illegally expanded when the General Order issued to implement it included the objective “undertake all measures to prevent and suppress all acts of rebellion and lawless violence in the whole of Mindanao, including any and all acts in relation thereto, in connection therewith, or in furtherance thereof.”

Based on this, all acts of lawless violence throughout Mindanao, even if unrelated to the ongoing hostilities in Marawi, have been included in the General Order. Accordingly, the, Operational Directive for the Implementation of martial law coming from the Chief of Staff of the Armed Forces of the Philippines orders his forces to: “dismantle the NPA, other terror-linked private armed groups, illegal drug syndicates, peace spoilers and other lawless armed groups.”

Justice Leonen warns of the ghost of the Marcos dictatorship: “The government’s concept of martial law, from the broad provisions of Proclamation No. 216 therefore partakes of different senses. Rightly so, the public is not specifically guided and their rights are put at risk. This is the ghost of martial law from the Marcos era resurrected. Even Proclamation No. 1081 of September 21, 1972 was more specific than Proclamation No. 216. Yet, through subsequent executive issuances, the scope of martial law became clearer: it attempted to substitute civilian government even where there was no conflagration. It was nothing but an attempt to replace democratically elected government and civilian law enforcement with an iron hand.”

To end, let me close with Leonen’s final words, which will be quoted by many generations of law students called to recite on this great and magnificent dissent:

“We all need to fight the long war against terrorism. This needs patience, community participation, precision, and a sophisticated strategy that respects rights, and at the same time uses force decisively at the right time and in the right way. The terrorist wins when we suspend all that we believe in. The terrorist wins when we replace social justice with disempowering authoritarianism.

We should temper our fears with reason. Otherwise, we succumb to the effects of the weapons of terror. We should dissent—even resist—when offered the farce that martial law is necessary because it is ‘only an exclamation point.’”

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