Calida tells SC: Don't worry, Duterte is not Marcos

MANILA, Philippines – "One thing I can assure you Your Honor, President Duterte is not President Marcos."

It was a reassurance that Solicitor General Jose Calida wanted to offer as he was being interpellated during the second day of the Supreme Court (SC) oral arguments on martial law in Mindanao.

Calida told Chief Justice Maria Lourdes Sereno that it's a political question to determine whether President Rodrigo Duterte's martial law declaration is factual and necessary.

"That is a political question insofar as the President is concerned because he was given the full discretion," Calida said, even adding that Duterte has the support of the House of Representatives and the Senate, which issued separate concurring resolutions. (READ: Calida says martial law declaration meant to make terrorists 'listen')

Sereno rejected this, however, because for the Chief Justice, branding it as a political question would draw dangerous parallelisms to the martial law of the late president Ferdinand Marcos.

"How are you now justifying the resurgence of the political question doctrine which to all constitutional historians and scholars, was the principal mechanism by which the Supreme Court was blamed for having unduly validated Mr Marcos' martial law?" Sereno said.

That was when Calida said Duterte will not be like Marcos.

Dissatisfied, Sereno said Calida must show the High Court the legal standards of how to examine the validity of Duterte's martial law without shrugging it off as a mere political question. (READ: SC's Carpio: No evidence of rebellion in other parts of Mindanao)

Arbitrariness, necessity

Calida cited an earlier SC ruling that says the validity of the suspension of the privilege of the writ of habeas corpus is determined not by its correctness, but by its arbitrariness.

"In other words, if as long as the President was not arbitrary in having declared martial law, because he deemed it necessary to protect public interest in view of the existing rebellion, what you earlier considered as actual rebellion, then this court will have to uphold the declaration of martial law," Sereno said, trying to explain what Calida wanted to say.

There was, however, disagreement on the principle of necessity.

Sereno said that factual basis is not the only requirement of martial law, but also necessity – that it was necessary for public safety to declare martial rule.

Calida said this is not the case, and read part of the Constitution which, he says, mentions only factual basis and not necessity. (READ: SC's Bersamin says trust Duterte on martial law)

He read an excerpt of Section 18, Article VII: "The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing."

Sereno reminded Calida that in the first part of the said provision, the necessity for public safety is mentioned.

She was referring to this part: "In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law."

Sounding like she was lecturing the Solicitor General on the interpretation of the law, the Chief Justice said:  "We don't have to always repeat the same exact phrase in the following paragraph, if there is a relation between the second paragraph to the first paragraph, as far as the Court is concerned, the second sentence of the first paragraph sets the conditions for the proclamation." – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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