Martial law isn’t answer to Marawi
crisis, says solon in SC arguments

June 13 2017 2:28 PM


Screengrab from House of Representatives' Youtube video
Screengrab from House of Representatives’ Youtube video

President Rodrigo Duterte’s martial law declaration in Mindanao had no sufficient factual basis and was done without prior consultation and recommendation, and should be revoked, an opposition lawmaker said on Tuesday, June 13.

Appearing at the oral arguments scheduled by Supreme Court, Representative Edcel Lagman of Albay asked the high court to nullify Proclamation No. 216 to “give meaning and efficacy to the multiple safeguards enshrined in the Constitution to prevent the recurrence of the misuse and abuse of martial law.”

Lagman filed the petition together with Reps. Teddy Baguilat Jr., Edgar Erice, Emmanuel Billones, Tom Villarin and Gary Alejano.

But the petitioners condemned the attack of the Maute group and prodded the Armed Forces to use full force to subdue the local terrorists.

“However, confronting and defeating them does not need the imposition of martial law where there is no actual invasion or rebellion when the public safety requires such imposition or suspension,” Lagman said.

He added: “Martial law will inevitably result in abuses, atrocities and repression of human rights and civil liberties reminiscent of Marcos’ martial law.”

“The repetition of such excesses is ominous in the wake of President Duterte’s statement that the martial law of Marcos was ‘very good’ and he would replicate it with equal harshness,” he added.

Lagman also raised the following arguments during the proceedings:

• The President must be factually correct relative to the sufficiency of the factual basis.

When the President declares martial law or suspends the writ, the sufficiency of the factual basis of his proclamation or suspension is justiciable and reviewable by the Honorable Court.

He may not be arbitrary or capricious in his appreciation of the facts because what is being challenged is the sufficiency of the factual basis of his imposition or suspension, irrespective of whether he acted arbitrarily or with grave abuse of discretion, a question which is relevant in certiorari or prohibition cases.

• The President must not act in solitude

Although the Constitution does not specifically require any recommendation or consultation prior to the President’s declaration of martial law, it is obvious and imperative that his exercise of this extraordinary emergency power should be preceded by appropriate recommendation from and thorough consultation with the ranking defense and military officials who are responsible for validating intelligence reports.

Hence, the imperativeness of their recommendation after prior discussions and consultations with them.

Roque said it was Defense Secretary Lorenzana himself who admitted that there was no such recommendation or consultation with respect to the issuance of Proclamation No. 216, as none was mentioned in the Proclamation and Report.

The President cannot act in solitude because his extreme action would affect the multitude.

• The only relevant facts are those obtaining at the time of the issuance of Proclamation 216

The President is required to take into account only the situation at the time of the proclamation of martial law or the suspension of the writ even if subsequent events prove the situation not to have been accurately reported.

In the same token, conditions which are the aftermath of the declaration or suspension cannot be used to justify an errant declaration or suspension which was done bereft of sufficient factual basis.

The escalating number of victims of the armed confrontation in Marawi City, including soldiers, innocent civilians and hapless children, damage to private and public property and unprecedented violations of human rights and civil liberties are the tragic aftermath of the declaration of martial law and the suspension of the writ, which were not the real facts on the ground when Proclamation No. 216 was issued.

The video clip purportedly depicting a planning session of the Maute brothers and Hapilon to lay “siege” on Marawi City was recovered on the second day after the proclamation. Consequently, it was not an input as factual basis for the declaration and suspension.

Moreover, it was a planned terrorist offensive which is akin to an imminent danger of rebellion which has been deleted in the 1987 Constitution as an alternative ground for declaring martial law or suspending the writ.

In assessing and reviewing the sufficiency of the factual basis of the declaration or suspension, such sufficiency must indubitably appear in the President’s Proclamation and Report to the Congress.

Meandering outside the periphery of these principal documents must not be allowed. Otherwise, post-declaration “justifications” can continue in perpetuity.

• Since the Congress has defaulted, perforce the SC must adjudicate

The power of Congress to convene and vote jointly whether or not to revoke the declaration of martial law or the suspension of the writ and the jurisdiction of the Supreme Court to review the sufficiency of the factual basis of the declaration and suspension are concurrent, where time is of the essence because the proclamation is immediately effective.

There is a school of thought as enunciated in the majority decision in Fortun vs. Macapagal-Arroyo that the two powers are sequential wherein the Congress must first act. But this sequential calibration is now academic because the Congress has reneged on its mandated duty.

Consequently, it is now imperative for the Supreme Court to exercise its special and specific jurisdiction to review the sufficiency of the factual basis of the subject declaration and suspension.

• Terrorism does not equate to rebellion

Acts of terrorism are not necessarily equivalent to actual rebellion and the consequent requirement of securing public safety to justify the assailed declaration and suspension.

No less than Justice Secretary (Vitaliano) Aguirre admitted that acts of terrorism do not automatically constitute rebellion. It is for this reason that the Human Security Act of 2007 (R.A. No. 9372), was enacted to punish acts of terrorism.

Moreover, the inculpatory elements of rebellion under Article 134 of the Revised Penal Code are different from the elements of terrorism. Rebellion has a culpable purpose: removing the Philippines or a part thereof from allegiance to the Republic or preventing the President or the Legislature from exercising their powers and prerogatives.

This culpable purpose is utterly absent in the alleged “rebellion” in Marawi City and elsewhere in Mindanao.

Defense and military officials have admitted that the current armed conflict in Marawi City was government-initiated and the armed confrontation was precipitated by the military operation to neutralize or capture Hapilon, which was resisted by the Maute Group.

• Consequently, the alleged “siege” of Marawi City is actually an armed resistance by the Maute Group to shield Hapilon from capture, not to overrun Marawi and remove its allegiance from the Republic.

No less than the President’s Report to the Congress confirmed that “on 23 May 2017, a government operation to capture Isnilon Hapilon, senior leader of the ASG and Maute Group operational leaders Abdullah and Omarkhayam Maute, was confronted with armed resistance which escalated into open hostility against the government.”

When asked during the military briefing before the House Committee of the Whole on the variance between the Zamboanga siege and the current Marawi “siege”, Deputy Chief of Staff, Lieutenant General Salvador Mison, Jr, said that in the “Zamboanga siege sila po ang pumasok. Sa Marawi, tayo po ang nagsimula.”

He added that the armed conflict in Marawi City was “government-initiated” as differentiated from the Zamboanga siege.

There is no actual rebellion in Marawi City and elsewhere in Mindanao absent the culpable purpose.