The heart of the martial law decision

Last Tuesday, the Supreme Court denied all three petitions that had asked it to invalidate Proclamation No. 216 of President Rodrigo Duterte. That proclamation had declared martial law and suspended the writ of habeas corpus over all of Mindanao. In what will now be known as Lagman vs. Medialdea, the Court exercised its power under the 1987 Constitution to review the sufficiency of the factual basis of such a declaration and found in favor of the President.

With the help of colleagues Regina Ongsiako and Edgar Bonto, I will be analyzing this historic decision in the next few columns. I have mixed feelings about the decision. There are good doctrines, on jurisdiction for example and on the reiteration of the constitutional safeguards. For sure, the Supreme Court did not grant the President unlimited martial law powers. However, overall, the President is given wide latitude and discretion under this decision, potentially paving the way for abuse of martial law powers—if not by this president, by future ones.

This pro-executive bent by the Court is best seen in the heart of the decision, written by Justice Mariano del Castillo, when the Court lays down the scope of its review which in turn determines the ultimate decision it will make. For this column, I will allow the Court to speak for itself.

On the test of sufficiency of factual basis:

“The phrase ‘sufficiency of factual basis’ in Section 18, Article VII of the Constitution should be understood as the only test for judicial review of the President’s power to declare martial law and suspend the privilege of the writ of habeas corpus under Section 18, Article VII of the Constitution.

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, which facts or information are found in the proclamation as well as the written Report submitted by him to Congress.”

On the correctness of the decision of the President:

“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. Since the exercise of these powers is a judgment call of the President, the determination of this Court as to whether there is sufficient factual basis for the exercise of such, must be based only on facts or information known by or available to the President at the time he made the declaration or suspension which facts or information are found in the proclamation as well as the written Report submitted by him to Congress.”

On mistaken facts the President considered:

“In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look into the full complement or totality of the factual basis, and not piecemeal or individually. The Court’s review is confined to the sufficiency, not accuracy, of the information at hand during the declaration or suspension; subsequent events do not have any bearing insofar as the Court’s review is concerned.”

“As the President is expected to decide quickly on whether there is a need to proclaim martial law even only on the basis of intelligence reports, it is irrelevant, for purposes of the Court’s review, if subsequent events prove that the situation had not been accurately reported to him.”

• The maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of and/or inaccuracies in some of the facts stated in the proclamation and the written report are 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.

On what the President can disclose to Congress and the public:

“As to what facts must be stated in the proclamation and the written Report 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.

Similarly, events that happened after the issuance of the proclamation, which are included in the written report, cannot be considered in determining the sufficiency of the factual basis of the declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus since these happened after the President had already issued the proclamation. If at all, they may be used only as tools, guides or reference in the Court’s determination of the sufficiency of factual basis, but not as part of component of the portfolio of the factual basis itself. 

Neither should the Court expect absolute correctness of the facts stated in the proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all facts reported to him due to the urgency of the situation. To require precision in the President’s appreciation of facts would unduly burden him and therefore impede the process of his decision-making.”

Overall, according to the Court, its “power to review is limited to the determination of whether the President in declaring martial law and suspending the privilege of the writ of habeas corpus had sufficient factual basis.” Thus, the Court would limit itself to “an examination on whether the President acted within the bounds set by the Constitution, i.e., whether the facts in his possession prior to and at the time of the declaration or suspension are sufficient for him to declare martial law or suspend the privilege of the writ of habeas corpus.”

In subsequent columns, I will write about other aspects of the decision, both at the good parts while highlighting my concerns. I will of course also summarize and reflect on the concurring decisions of Chief Justice Maria Lourdes Sereno and Justices Antonio Carpio and Benjamin Caguioa who ruled partially to grant the petitions as to the inclusion of the whole of Mindanao as well as the dissenting opinion of Justice Marvic Leonen.

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