SUPREME Court Associate Justice Lucas Bersamin was questioning Christian Monsod, a former member of the commission that drafted the 1987 Constitution, during last January’s oral arguments on a petition assailing the extension of martial law in Mindanao.

Bersamin asked why the Constitution “ties the hands” of the president on his power to declare martial law. It’s “narrowed and constricted” for the chief executive to ensure survival of the republic. The “present challenges” may not be met by the Constitution.

The movies

What prompted Bersamin’s concern: he watches “so many movies.” In “Olympus Has Fallen” (2013) and “London Has Fallen” (2016), he said, there are so many threats that aren’t covered by the Constitution’s requirement of “invasion or rebellion” before martial law can be declared.

The justice must have been thinking out loud. He knows only too well why rules limit the power to declare martial law: we had a president who abused it and ruled as a despot for more than a decade.

Just as the Constitution’s framer might have over-reacted, Bersamin might also be overstating the “inadequacy” of the fundamental law. The president is not without the weapon to suppress lawless violence.

President’s power

The Constitution is empowered to call out the troops in case of assault by terrorists, the threat that Bersamin’s film citation raises. Terrorism is covered under “lawless violence.”

Besides, if we go along with the romp of his imagination, the Presidential Security Group in Malacañang would need only one Mike Banning, the security agent (played by Gerald Butler in the two “Fallen” films) to save the president and the state. Without a Banning, maybe an efficient and highly trained counter-terrorism program. Martial law would be the “ultimate weapon.” In sum, President Duterte wouldn’t be helpless even if the Constitution is not as generous as Bersamin wants for the chief executives authority.

‘Living’ Constitution

“Don’t you want,” Bersamin asks Monsod, “a Constitution that is a living Constitution that responds to the present times?”

One isn’t sure if he means a Constitution that is “living” (a) because the framers made it so or (b) because the Supreme Court justices interpret it as “living” document. In the first, the gap may be filled or the flaw corrected by amending the Constitution. In the second, the SC justices can make the document respond to existing conditions.

Is that what the high tribunal has been doing? Such as upholding the declaration of martial law in Mindanao even if the conditions warranting it existed only in one city? Or extending the period of martial law even after the rebellion was already suppressed?

The problem

Apparently, the line is not expressly drawn between justices who advocate a “living” Constitution and those who believe the Constitution can only be changed by amendment. This is not about deficiency of the Constitution. Despite the plaudits for the 1987 document, it’s not perfect.

But here’s the thing, as pointed out by the late U.S. Supreme Court Justice Antonio Scalia. The problem with the “living” Constitution concept is that power is exercised by the few justices who dominate the high tribunal. Scalia warned against power wielded by a few lawyers in justices robes. Which, viewed from the Philippine experience, wouldn’t be beyond exploitation by greedy or wicked interests.

Justices’ will

A Constitution, to Scalia and his adherents, is “static, enduring and unchanging,” in effect “dead,” which shall be changed only by the process of amendment under the same Constitution.

Bersamin’s statement, with the ongoing effort to propose amendments to the Constitution, should make us wonder how the justices regard their role as interpreters of the fundamental law. Do they see their decision as a collegial body’s will that supplants the will of the voters who adopted the Constitution in a national plebiscite?