Slippery slope of martial law

'Sufficiency of factual basis' test

According to the Supreme Court, the 1987 Constitution, by providing for judicial review based on the determination of the sufficiency of the factual bases, has in fact done away with the test of arbitrariness as provided in Lansang.

Thus, the purpose of judicial review is not the determination of accuracy or veracity of the facts upon which the President anchored his declaration of martial law or suspension of the privilege of the writ of habeas corpus. Rather, its review should be limited to the sufficiency of the factual basis as to convince the President that there is probable cause that rebellion exists.

In this portion of the decision, the Court also accorded the President much leeway and flexibility, because, according to the Court, to require precision in the President's appreciation of facts would unduly burden him and therefore impede the process of his decision-making. The President should not be expected to completely validate all the information he received before declaring martial law or suspending the privilege of the writ of habeas corpus.

Thus, the "Court does not need to satisfy itself that the President's decision is correct, rather it only needs to determine whether the President's decision had sufficient factual bases." As this is something President is not expected to do himself, then neither should the court do the same. 

Giving due deference to the executive decision, the Court also held that if later on, the facts known to the President were found to be inaccurate, the declaration may still be upheld if the Court finds that, at the time of the issuance of the Proclamation, the President had probable cause for a valid declaration of martial law and suspension of the privilege of the writ of habeas corpus.

Falsities of and/or inaccuracies in some of the facts stated in the proclamation and the written report are also not enough reasons for the Court to invalidate the declaration and/or suspension as long as there are other facts in the proclamation and the written Report that support the conclusion that there is an actual invasion or rebellion and that public safety requires the declaration and/or suspension. 

As to what facts must be stated in the proclamation and the written Report, Lagman vs Medialdea holds that the same is "up to the President."

As Commander-in-Chief, he has sole discretion to determine what to include and what not to include in the proclamation and the written Report taking into account the urgency of the situation as well as national security. "He cannot be forced to divulge intelligence reports and confidential information that may prejudice the operations and the safety of the military." 

Actual rebellion, public safety, and probable cause requirements

The Supreme Court affirms that there are two conditions that must be present for martial law to be validly declared: Actual invasion or rebellion, and the public safety requirement. It elaborates on these conditions in Lagman vs Medialdea, including the standard of probable cause as what can guide the President.

Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual basis for the declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus, "namely (1) actual invasion or rebellion, and (2) public safety requires the exercise of such power."

In its decision, the Supreme Court held that without the concurrence of the two conditions, the President's declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must be struck down. 

Moreover, the Supreme Court held that, in determining the existence of rebellion, the President only needs to convince himself that there is probable cause or evidence showing that more likely than not a rebellion was committed or is being committed. To require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers.

Is it terrorism or rebellion?

Lagman vs Medialdea describes what is happening in Marawi City as a case of actual rebellion. According to the Court, the President deduced from the facts available to him that there was an armed public uprising, the culpable purpose of which was to remove from the allegiance to the Philippine Government a portion of its territory and to deprive the Chief Executive of any of his powers and prerogatives, leading the President to believe that there was probable cause that the crime of rebellion was and is being committed and that public safety requires the imposition of martial law and suspension of the privilege of the writ of habeas corpus.

Moreover, the President's conclusion, that there was an armed public uprising, the culpable purpose of which was the removal from the allegiance of the Philippine Government a portion of its territory and the deprivation of the President from performing his powers and prerogatives, was reached after a tactical consideration of the facts. 

In fine, the Court concludes that the President satisfactorily discharged his burden of proof. After all, what the President needs to satisfy is only the standard of probable cause that there is actual rebellion. This conclusion that the Lagman case has made, however, requires further discussion.

In order to determine whether the events in Marawi City is a case of terrorism or actual rebellion, we must first define the elements of each. As provided by the Revised Penal Code, the elements of rebellion are: "[F]irst, that there be (a) public uprising and (b) taking arms against the government; second, that the purpose of the uprising or movement is either (a) to remove from the allegiance to said government or its laws (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives."

On the other hand, there is terrorism when: (1) there is a predicate crime committed, (2) the effect of the perpetration of the crime is to sow and create widespread and extraordinary fear, and (3) the purpose of which is to coerce the government to give in to an unlawful demand.

As Justice Marivic Leonen has pointed out in his dissenting opinion, clearly, the difference between terrorists and rebels boils down to their intention. "Terrorists use fear and violence to advance their agenda or ideology, which may or may not be political in nature. While rebels use violence as a form of strategy to obtain their goal of destabilizing or overthrowing the government in order to gain control over a part of or the entire national territory."

After defining these terms, we still have to ask: "Is it terrorsm or rebellion?" Lagman vs Medialdea may have concluded that the events in Marawi City is a case of actual rebellion, but Justice Leonen argues otherwise. He opines that "the acts of terrorism committed by the Maute Group and their allies, after the attempted service of warrants of arrests against their leaders and the disruption of their plans while trying to escape, is not rebellion in the context of Article 134 of the Revised Penal Code. It is certainly not the kind of rebellion that warrants martial law."

We agree with Leonen when he said in his dissent that there is a danger in mischaracterizing these protagonists. One danger this imposes is whether or not this conclusion should be considered as the final legal determination of what these acts are. Thus, what happens if these protagonists are captured and charged with rebellion, but later, were only found to have committed acts of terrorism? And vice versa.

Another is that "by characterizing them as rebels, we risk giving the impression that what are mere sporadic or isolated acts of violence during peacetime, which are considered law enforcement problems, have been transformed to a non-international armed conflict covered under International Humanitarian Law."

More importantly, in possibly mischaracterizing these acts as acts of rebellion when it may be, in reality, acts of terrorism, we will essentially be according these groups with a status far from who they really are. Thus, failing into their trap (so to speak) and creating the fear ourselves that they had attempted to instill through their actions. 

Given the various consequences of determining these acts with, what seems to be, certainty or finality, the Supreme Court should take great pains in determining whether what is happening in Marawi City is terrorism or actual rebellion. Is there rebellion that justifies martial law? Or is there terrorism that requires more thoughtful action?

Martial law in entire Mindanao vs martial law in Marawi City

A major disappointment in the Lagman case is the Court's decision to uphold martial law for all of Mindanao. From what I could see, there are no facts presented in Proclamation No. 216 and the President's report to Congress that justified putting the whole of Mindanao under martial law. The Court, however, once again gave the President a lot of latitude here and also seems to idealize martial law and the suspension of the privilege of habeas corpus.

The Court held that the 1987 Constitution grants to the President, as Commander-in-Chief, the discretion to determine the territorial coverage or application of martial law or suspension of the privilege of the writ of habeas corpus.

The Constitution could have imposed a limitation on the territorial scope or area of coverage such as it did with the limitation on the period of application, but it did not impose such. The provision merely states that martial law may be declared in "the Philippines or any part thereof." The Constitution clearly leaves the territorial scope of martial law to the assessment of the President. In his discretion, he may put the entire Philippines or only a part thereof under martial law.

Moreover, the Court held that the President's duty to maintain peace and public safety is not limited only to the place where there is actual rebellion. It extends to other areas where the present hostilities are in danger of spilling over. "It is not intended merely to prevent the escape of lawless elements from Marawi City, but also to avoid enemy reinforcements and to cut their supply line coming from different parts of Mindanao."

Therefore, limiting the proclamation and/or suspension to the place where there is actual rebellion would not only defeat the purpose of declaring martial law, it will make the exercise thereof ineffective and useless. 

The Lagman case also emphasized that the precise extent or range of the rebellion could not be measured by "exact metes and bounds." For the crime of rebellion to be consummated, it is not required that all armed participants should congregate in one place. The Court holds that it is sufficient that a portion of the contingent gathered and formed a mass or a crowd and engaged in an armed public uprising against the government.

Similarly, it cannot be validly concluded that the grounds on which the armed public uprising actually took place should be the measure of the extent, scope or range, of the actual rebellion. In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the "range" of actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions.

The Supreme Court opines that the Constitution must have considered these limitations when it granted the President wide leeway and flexibility in determining the territorial scope of martial law. 

The Court said that it "cannot simply take the battle of Marawi in isolation" because rebellion is a crime without predetermined bounds. Thus, Lagman vs Medialdea holds that for as long as the President has reasonable basis to believe that the declaration of martial law, as well as the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao, is most necessary, effective, and called for by the circumstances, then the Court should not look into or question the same.

What really happens in martial law?

One question that was constantly raised during the oral arguments was: "What really happens in martial law?" The Supreme Court answered this in Lagman vs Medialdea when it differentiated the emergency powers of the President. Although it was good that the decision made these distinctions, we can't help but feel that the question still remains to be unanswered. 

As Justice Leonen said in his dissenting opinion, "the Constitution does not spell out what martial law is, or the powers that may be exercised under a martial law regime. It only states what martial law is not, and cannot accomplish." There isn't even an legal precedent on the matter. Hence, the need for greater clarity on what is included in martial law powers.

In his dissent, Leonen attempted to answer this question himself. Taking a historical approach on the concept, he writes, "martial law arises out of necessity, in extraordinary times, when the civilian government in an area is unable to maintain peace and order, such that the military must step in and govern the area until the civilian government can be restored. Its imposition is dependent on the inability of civil government agencies to function."

Furthermore, martial law may take on different forms, as needed. This makes defining the martial law powers of the President even more essential. 

Nevertheless, Leonen still is of the opinion that the Court cannot dictate the parameters of what powers the President may exercise under a state of martial law to address a rebellion or invasion because to do so would be undue interference with the President's powers. However, while this Court cannot state the parameters for the President's martial law, this Court's constitutional role implicitly requires that the President provide the parameters himself, upon declaring martial law.

The proclamation must therefore contain the powers he intends to wield, and when the President does not specify how martial law would be used, he evades review.

In conducting a review of the sufficiency of factual basis for the proclamation of martial law, the Court cannot be made to imagine what martial law is. The President's failure to outline the powers he will be exercising and the civil liberties that may be curtailed will make it impossible for this Court to assess whether public safety requires the exercise of those powers or the curtailment of those civil liberties.

Thus, according to Justice Leonen, "it is not sufficient to declare 'there is martial law.' Because martial law can only be declared when public safety requires it, it is the burden of the President to state what powers public safety requires be exercised." 

Approving the extension 

Based on our understanding of Lagman vs Medialdea, we think that given another round of petitions on the matter, the Supreme Court will probably approve the extension of martial law decree in Mindanao as it has sustained the declaration of martial law in Proclamation No. 216. But, in its exercise of its constitutional duty, we can always be happily surprised by the decision of the Court.

After all, Lagman vs Medialdea has clearly established that the 1987 Constitution lays down parameters for when, where, and how martial law is to be declared. And, "[t]he Supreme Court, as the guardian of the Constitution, has the obligation to see to it that these parameters are complied with.

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By engaging in the foregoing tasks, the Supreme Court realizes the fullness of its existence as envisioned in our Constitution." (quoting Chief Justice Maria Lourdes Sereno in her separate opinion in Lagman vs. Medialdea) – Rappler.com

Tony La Viña is former dean of the Ateneo School of Government. Regina Ongsiako is an incoming 3rd year law student at the Ateneo Law School and presently a legal intern​ working​ ​with Professor La Viña.