SOLICITOR General Jose Calida is confronted with a disconcerting situation: his own argument on martial law in Mindanao being used to tear at the government’s position that the proclamation was necessary and justified.
Mario Manuel, lawyer for a group of women in Marawi City who were among those who filed petitions assailing President Duterte’s order, said, during oral arguments before the Supreme Court, Calida’s admission that lawlessness in that city can be quelled by calling out the troops even without martial law refutes the reason for the emergency order. Martial law “won’t make much difference,” Calida had said.
Clash on how much
The sol-gen struck back, saying:
 declaring martial law, instead of just sending out troops, still makes a difference; and
 Constitution framers wouldn’t have included martial law among the president’s powers if they thought it was redundant.
What it means
When one says “not much difference,” it’s just that: doesn’t matter or doesn’t matter much. Otherwise, the state would’ve argued that martial law made the difference.
Redundant? Calida is right, the Constitution framers didn’t think the provision on martial law is excess load in an already heavily laden document. But, and here’s where the sol-gen’s second argument falters, martial was clearly meant not as an ordinary power to be unleashed for just anything, it’s for emergency use only.
Martial law requires a rebellion or invasion and not just either one of the two. There’s the added condition that “public safety requires it.”
Calida should’ve just argued that the president is the only person entrusted with the power to declare it and Congress can extend or revoke it. The Supreme Court earlier ruled that it’s a “tandem power,” meaning, exercised by both the president and Congress.
The tribunal, before which a number of petitions are being heard, looks into the factual basis but not its wisdom or proportion. Or so, the SC ruled in Fortun vs. Gloria Macapagal-Arroyo.
New or expanded ML
The SC may uphold Duterte’s martial law by hewing to its earlier doctrine of limiting judicial inquiry to “factual basis.” Not whether it was wise or proportionate to the danger.
The tribunal may leave that to Congress, which might be asked again to look into the proclamation order should the president decide to extend or expand the ongoing martial law.
That should move Congress to convene jointly and do its share of decision-making, which it forfeited on the first declaration. Doing that would make a difference, the whole lot.
Published in the SunStar Cebu newspaper on June 20, 2017.
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