By J. Art D. Brion
I visited the Supreme Court, for the first time after my retirement, to see and listen to the oral arguments of the martial law cases. With a very interesting legal topic and a case that touches on the life of the nation, I expected to see high-level debates that would explore the intricacies of the law seen through properly presented and proven facts.
I was disappointed though and did not last beyond the lunch break of the first day, as the overlay of politics was obvious and palpable in the presentation of the first petition.
Save for one counsel, the presentations did not rise beyond the level of improvised congressional speeches, nor did counsel go to the level that the Court deserves – a presentation complete with fully established facts aligned with well researched legal arguments. The presenting counsel, it seemed to me, still largely lived in the past and were still battling a politician now long gone – President Ferdinand Marcos.
During President Marcos’ time, the large scale and transnational terrorism the world knows today did not exist. His was a battle against Communists who still operated on World War II weapons, communications, and means of mobility, along the lines of the World War II vintage Hukbalahaps. Response to terrorist acts like the Communists’ Plaza Miranda bombing could still be the suspension of the writ of habeas corpus and hit-and-run battles against territorial lawless elements.
Today, the nation faces well-thought out terroristic acts against one specific government unit (for now), apparently with the intent of occupying its territory unless the attacks are halted. The nation faces, too, lawless elements who are well-armed, well-funded, with global reach and linkages, and who can be away from the battle scene because of the mobility that technology now gives them.
What their acts are called – whether invasion or rebellion – becomes secondary when the attacks place the sovereignty of the Republic over its territory (or parts of it) in jeopardy, when citizens are being killed, and when the ensuing battles are destroying a city. Whether martial law or military action should be confined only to the scenes of actual violence, also becomes a useless question to consider as it glosses over the nature and mode of operations of today’s terrorism.
The second petition before the Court, under the by-line of former Solicitor General Hilbay, appears to be a lot more interesting as it is an excellently drafted petition from the constitutional litigation point of view. It lays the proper technical basis and its argument is to the point – whether the Constitution requires that Congress, i.e., the Senate and the House of Representatives, should convene as one body in order to be “voting jointly.” This is an engaging legal point that will test the interpretative skills of the justices as well as their determination to merely interpret, not to fill in substantive gaps in the Constitution for actions that are not for the courts to undertake.
Beyond these, I dare not say more without violating the rule that outside comments bearing on the merits of cases should not be made while these cases are pending before the courts.
In any case, the petitions and the arguments, in my view, support the proposition that after the current national security problem and these current cases are resolved, we should already consider the review of our Constitution.
Rather than a reactive Constitution aimed at a foe no longer known to the present generation except through questionable historical write-ups and biased short descriptions, we should have a constitution that looks back to the whole of our national history and looks forward to national objectives and aspirations based on current and developing national and global realities.
Our Constitution should not be a partisan document that zeroes in on a specific individual based on politics. This is the approach that has led to the emasculation of what should otherwise be a potent power of government put in place to ensure the order and security of the state.
Martial law, as provided in our various Constitutions, has never been intended to be a tool for repression. We have to presume good faith and regularity in the action of the government unless the contrary is clearly shown (to use the words of Justice Lucas Bersamin during the martial law oral arguments, although he used them in a slightly different context).
Another aspect of our Constitution, seemingly minor in the usual times, is the time frame for the resolution of presidential and vice-presidential electoral protests. This matter is highlighted by the unexplained “private time” the President has taken at the height of the Marawi fighting. I am one of those who, aside from praying for Marawi and its people, also prayed – “Please God, save President Duterte from harm at this critical time; take him with you as sooner or later you must, but not at this time, please God.”
I refer to the unthinkable – the disappearance of the President from the scene at this critical time.
Our election took place more than a year ago; the current administration would have been in place at the end of this month. The protest of Senator Bongbong Marcos has been pending since then. (Readers will remember that in the previous administration, the similar protest of candidate Mar Roxas against Vice President Jejomar Binay had been left unresolved for six long years.)
When and if the nation re-examines the current Constitution, we should perhaps impose time limits in resolving protests at the presidential and vice-presidential levels. We need the utmost in stability at the highest levels of our government and should restrict the times of uncertainty to the minimum.
A sentiment that may take a crisis (or even a tragedy) for us to see or feel, is the love of country that in usual times is kept locked, unspoken, at the level of the heart; it manifests itself in critical times, still not in words, but through unbidden tears sent by the speaking heart.
I saw such love during the flag ceremony at Marawi on Independence Day. While the lawless terrorized Marawi, Muslims and Christians alike, without distinction and as Filipinos, with right hands to their heart, looked at the ascending flag with tears in their eyes. I saw these manifestations, too, when the coffins of our slain soldiers came and people lined up in grief.
Oh, how I wish the Supreme Court had started its oral argument proceedings with the showing of these scenes, followed by the singing of the national anthem.
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