2 justices: SC flouts charter by extending martial law due to NPA threat

The Supreme Court flouted the 1987 Constitution when it allowed the government to cite the protracted communist insurgency as justification for a yearlong extension of martial law in Mindanao, according to the two most senior justices on the tribunal.

In their separate dissenting opinions, Chief Justice Maria Lourdes Sereno and Senior Associate Justice Antonio Carpio disputed the view of the majority of their colleagues on the high court that the presence of New People’s Army (NPA) insurgents necessitated the prolongation of military rule in the entire Mindanao, as the Office of the Solicitor General had argued.

Carpio pointed out that President Rodrigo Duterte did not explicitly mention the NPA, the armed wing of the Communist Party of the Philippines, when he issued Proclamation No. 216 on May 23, 2017, to break the siege of Marawi City by Islamic State-inspired terrorists.

He said Defense Secretary Delfin Lorenzana and other senior military officials had publicly declared that the terrorists from the Maute group had been defeated and that the situation was “already contained and under control” two months before the Senate and the House of Representatives approved Mr. Duterte’s request to extend martial law up to Dec. 31, 2018.

Unconstitutional

“To uphold the extension of martial law and the suspension of the privilege of the writ [of habeas corpus] when the Maute rebellion no longer persists, in Marawi City or anywhere else in Mindanao, would sanction a clear violation of Section 18, Article VII of the Constitution,” Carpio said.

Voting 10-5, the high court on Feb. 6 upheld the constitutionality of Joint Resolution No. 4, which the House and the Senate had passed to allow Mr. Duterte to keep Mindanao under martial law for a year.

The high tribunal, in the majority ruling written by Associate Justice Noel Tijam, did not fault the President for not mentioning the NPA’s insurgency as a reason to impose military rule since requiring Mr. Duterte to “render a meticulous and comprehensive account in his proclamation or report will be most tedious.”

In opposing Tijam’s decision, Carpio said the high court did not deliberate on the effects of the decadeslong communist rebellion when it scrutinized Mr. Duterte’s martial law order.

“By belatedly invoking the NPA rebellion as factual basis for the extension of Proclamation No. 216, the government effectively circumvented the temporal limitation set by the Constitution that the initial proclamation of martial law or suspension of the privilege of the writ [of habeas corpus] can only last for 60 days,” Carpio said.

Separate proclamation

“Neither can the concurrence of Congress with the President cure the unconstitutionality of the extension,” he said. “In other words, mere concurrence of the two political branches is not enough. The court is the final arbiter of the constitutionality of the extension,” he added.

Carpio said Section 18, Article VII of the Constitution clearly stated that martial law could only be extended if an actual invasion or rebellion was continuing and that public safety still required it.

If the Duterte administration wanted to use the communist insurgency as a reason to impose martial rule, he said, the President should issue a separate proclamation “for a period not exceeding 60 days.”

The senior magistrate said it was wrong for Tijam to declare that the extension of martial law had factual basis just because the communist insurgents also wanted to overthrow the government like the Maute terrorists.

‘Self-contradictory’

For Sereno, Proclamation No. 216 itself showed that the NPA insurgents “had very little to do with” the Marawi siege and the Maute terrorists, saying their connection merely “consisted of their similarity in geographical location.”

In her 38-page opinion, the Chief Justice agreed with Carpio that the armed hostilities attributed to the communist guerrillas were never tackled in their discussions on Mr. Duterte’s martial law proclamation.

“The addition of a new actor as factual basis for arguing that a rebellion persists is self-contradictory and cannot be accepted,” she said.

Moreover, Sereno said the remarks of the President and his military officials declaring victory over the Maute “in fact show that there is no armed public uprising that justifies the conclusion that rebellion persists.”

More politically vulnerable

The Chief Justice lamented that Tijam’s ruling only showed “serious balance” that only made the tribunal “even more vulnerable to political forces, rendering itself inert in exercising the power of judicial review.

“The court is still adrift, unable in the majority decision, to find its mooring either on a well-reasoned interpretation of the text of the Constitution, or to present a logical continuum of this court’s jurisprudence,” Sereno said.

“Instead, it has taken an extreme view, ceding all substantive points to respondents and allowing thereby no significant quarters to petitioners,” she stressed.