key: cord-0060105-pjj0hnvm authors: Gatmaytan, Dante B. title: Judicial Review and Emergencies in Post-Marcos Philippines date: 2020-05-07 journal: Constitutionalism Under Extreme Conditions DOI: 10.1007/978-3-030-49000-3_4 sha: 73ab9f37ac5bd7078a10a98308af418b8be4b5af doc_id: 60105 cord_uid: pjj0hnvm The Philippine Supreme Court aided Ferdinand Marcos by laying the legal scaffolding for his martial law regime. The Court refused to check the President’s power by deferring to the Executive Branch in case of emergencies. When Marcos was ousted in 1986, Filipinos adopted a Constitution that gave the Judiciary the power to review the factual bases of emergency actions. The Supreme Court, however, refuses to use this power. The Court refuses to check the President because of institutional competence constraints, believing that the only issues that can be resolved by the judiciary are those that can be done on the basis of reasoned argument. When courts go beyond this role, they endanger their legitimacy as legal institutions because they act beyond their area of competence. The Philippine case shows that a constitutional directive that empowers the judiciary did not override deference to the executive branch in times of political trauma. As a result of this deference the Supreme Court has dismantled the safeguards in the post-Marcos constitution. Judicial review "under extreme conditions" has an inglorious history in the Philippines. The Supreme Court, by deferring to the Executive Branch, held that the factual bases for declaring an emergency are beyond the pale of judicial review. The Court's deference aided the regime of Ferdinand Marcos by laying the legal scaffolding that gave him free reign in administering his martial law regime. When Marcos was ousted by protests in 1986, the new government drafted a constitution that strengthened the role of the Judiciary in extreme conditions by giving it, among others, the power to review the factual bases of emergency situations. The Supreme Court, however, has been reluctant in applying these new powers, and has crafted a mechanism that makes judicial review the final, and not a primary remedy for the abuse of power. The Court's reluctance in assuming a more powerful role stems from institutional competence constraints. The Supreme Court is unable to do more than to defer to the Executive branch in a field where it admittedly lacks technical knowledge; it slips into its traditional role of bystander instead of an active player. Institutional competence "goes to the respective abilities of courts versus legislatures or Executive officers to decide a particular question." 1 Proponents of this view say that only issues that can be resolved by reasoned argument are appropriate for judicial resolution. When courts go beyond this role, they endanger their legitimacy as legal institutions because they assert an unjustifiable claim to political superiority, and because they act beyond their area of competence. 2 Post-Marcos Philippines demonstrates that a constitutional directive altering the balance of power among the three branches of government did not override the rationale for deference to the Executive branch in times of political trauma. Marcos justified martial law based on government inefficiency and "an overblown allegation of communist threat." 3 In truth, the trigger for the declaration of martial law did not involve a communist menace but constitutional limits on Marcos' presidency. With his opponents poised to take over the Presidency, Marcos set out to circumvent constitutional term limits. 4 He cultivated an atmosphere of fear-faking attacks on his officials and setting off explosions-to gain international support for authoritarian rule. 5 Marcos marketed martial law to the world by proclaiming his New Society, a set of ambitious promises of social and economic reform, coupled with some practical steps to curb general anarchy and violence. 6 Marcos declared martial law in September 1972 and replaced the Americaninspired and -approved (1935) Constitution with a parliamentary system. Marcos shut down Congress and restricted speech and other civil liberties. He did not touch the Supreme Court, to show critics that his actions would be subject to judicial review. Critics brought suits to challenge the constitutionality of the declaration of martial law and the ratification of a new Constitution. The Supreme Court's ruling in Javellana v. Executive Secretary 7 held that the 1973 Constitution was already in effect. 8 The Supreme Court called the adoption of the Constitution a "political question" and it helped cement Marcos' strongman rule. Since then, the Supreme Court, throughout the martial law regime (1972) (1973) (1974) (1975) (1976) (1977) (1978) (1979) (1980) (1981) , hardly voted against the Administration. Judicial review, if exercised at all, almost invariably upheld the acts of the President. The Supreme Court's docility, some suggest, was adopted as a way to survive. 9 Marcos was ousted by massive protests in 1986 after a tainted election that was intended to reboot his mandate. 10 The laws of emergency refer to measures triggered by urgent and unpredictable circumstances as well as to exceptional crises. In most legal systems, it is recognized as an institution of last resort in extreme, extraordinary cases, where a national, social, economic or political crisis fails to effectively address it. 11 Pottakis explains: …resorting to the law of emergency highlights the limits of democratic constitutional arrangements. Even if the appeal to the law of emergency does not automatically call for the suspension of basic constitutional provisions, notable rights protection, as is usually the case, it signifies a departure from normal, constitutionally prescribed democratic decision-making arrangements. Thus the law of emergency fits quite uneasily in modern regimes. 12 Emergency regimes are deemed necessary because when public safety is seriously threatened, there may be a need for quick and decisive action that cannot wait for the ordinary pace of constitutional rule. 13 This presents a dilemma of a liberal constitutional government: the rights and protections it provides and preserves can 7 [1973] 50 SCRA 1. I discuss this case elsewhere. See Gatmaytan-Magno D (2007) Changing constitutions: judicial review and redemption in the Philippines. ucla pacific basin law journal 25:1-24. 8 Tate CN (1995) The Philippines and Southeast Asia. In: Tate CN, Vallinder T (ed) The global expansion of judicial power. New York University Press, p 465. 9 The Court, said one observer, chose to "bend with the wind" and that as long as the Court stayed tractable, the President found reason to keep it open and operational. See Del Carmen RV (1979) Constitutionality and judicial politics. In: Rosenberg DA (ed) Marcos and martial law in the Philippines. Cornell University Press, p 112. 10 Gatmaytan DB (2006) It's all the rage: popular uprisings and Philippine democracy. pac rim l prevent the government from responding to enemies that would destroy those rights and, perhaps, even the constitutional order itself. 14 Governments have declared states of emergency to respond to a variety of real and perceived crises, including threats of foreign military intervention and insurrection, political unrest, general civil unrest, criminal or terrorist violence, labor strikes, economic emergencies, the collapse of public institutions, the spread of infectious diseases, and natural disasters. 15 "Public emergencies" apply to exceptional situations of public danger permitting the exercise of crisis powers in a particular state. 16 Emergencies may arise from: 1. a serious political crisis (armed conflict and internal disorder); 2. force majeure (disasters of various kinds); or 3. particular economic circumstances, notably those relating to underdevelopment. 17 States of emergency are important from a human rights perspective because the suspension of legal order often paves the way for systematic human rights violations. 18 During an emergency, Executive power expands while the rights and freedoms of individuals contract. The rule of law is necessary in an emergency regime to ensure reasonable protection to the individuals on the one hand and to prevent abusive exercises of Executive powers on the other. In many jurisdictions, the task of protecting human rights and the rule of law during an emergency falls on an independent judiciary. 19 The question of judicial review arises in two types of cases: 1. whether there exists a public emergency threatening the life of the nation; 2. whether the measures taken are permissible in law to restore normalcy. 20 Courts are said to be well-suited for this function for three reasons: 1. They have the advantage of hindsight; 2. They take up issues relating to emergency powers "not in the abstract … but in the context of specific cases"; and 3. 45 and Niger, 46 the constitutions require the involvement of courts in the declaration by means of mandatory consultations before such are decreed. On the opposite end of the spectrum, the constitutions of Chile, 47 Sierra Leone, 48 and Sri Lanka 49 expressly prohibit the courts from inquiring into the factual circumstances invoked by the authority to declare states of emergency. Courts often say, however, that national security matters fall outside their institutional expertise because the national security cases typically involve sensitive security intelligence information that governments are unwilling to furnish in open court. 50 This is what happened in the Philippines. The Philippines suffered heavily under Marcos' martial law regime. 51 The police engaged in systematic human rights abuses and syndicated gambling, drugs, or smuggling. 52 The regime is said to be responsible for 3,257 deaths, while an estimated 35,000 were tortured and 70,000 were arrested. 77 percent of those who died were tortured and killed with the remains dumped for display. 53 The Marcos estate was found liable to a class of 10,000 Filipinos and 23 plaintiffs for torture, summary execution, disappearance, and prolonged arbitrary detention. In 1994, the jury awarded $1.2 billion in exemplary damages. 54 The case involved five consolidated cases and was tried in a two-week period. Victims of torture and arbitrary detention testified about their individual trauma, and in some cases, to relate Marcos's personal involvement in their sufferings. 55 The Constitutional Commission of 1986 placed safeguards in the fundamental law to prevent similar abuses in the future. The Philippine Constitution has three separate provisions on emergencies. 56 The first of these is a delegation of legislative powers under Article VI, Section 23 of the Constitution. This provision delegates legislative powers to the President under certain circumstances. On its face, the President's exercise of emergency powers may seem like an improper exercise of legislative powers. Under the separation of powers doctrine, each department of the government has exclusive cognizance of matters placed within its jurisdiction, and is supreme within its own sphere. Thus, there is a corollary principle that the powers of these branches cannot be delegated to others: what has been delegated cannot be delegated. So while the President cannot legislate as a rule, she may do so under certain situations sanctioned by law. The nature of the delegation under the present Constitution is not as restricted as it was under the 1935 Constitution. The older Constitution merely delegated the power "to promulgate rules and regulations to carry out a declared national policy." 57 The language of the 1987 Constitutions supports the argument that the Congress may delegate legislative power, and not merely rule-making powers. 58 Still, the Constitution provides two restrictions on the delegated power. The first is that the power is temporary-the delegation automatically ends when Congress adjourns or when it is sooner withdrawn by Congress. The withdrawal is done by resolution, not by law. A Resolution of Congress does not require the President's approval. This would avoid a situation where the President might resist the withdrawal of his powers. Congress may also add restrictions on the powers although the Constitution has apparently left Congress with broad discretion on the nature or extent of these restrictions. The second emergency power falls under Article VII on the Executive Department, which lists the President's powers as Commander-in Chief: SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. The third emergency power can be found under Article XII on the National Patrimony. Section 17 of the Article provides that: SECTION 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. For our purposes, we focus on the commander-in-chief powers of the President and the Supreme Court's powers under Section 18 of Article VII. The length of the provision shows the painstaking efforts that were taken to plug the loopholes created by the Marcos Regime. The framers of the 1987 Constitution had a heated debate about congressional concurrence in the President's exercise of extraordinary emergency power. This was opposed largely on the argument that such limitation would hamper the President's ability to respond quickly to emergencies. The concurrence of Congress was dispensed with, but the President must, within 48 hours from taking emergency action, submit a report to Congress either in person or in writing. Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension." The revocation will not be set aside by the President. 59 The Constitution now grants the President, as Commander-in-Chief, a "sequence" of graduated powers, which are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of an actual invasion or rebellion, and that public safety requires the exercise of such power. However, the "calling out power" can be exercised "whenever it becomes necessary." 60 Pangalangan summarizes the Commander-in-Chief's emergency powers under the 1987 Constitution: Due to the nightmare of one-man rule, the post-Marcos constitution confined the extraordinary powers of the chief executive through institutional checks. It recognized three situations of "national security" emergencies and a fourth situation of economic emergency, all of them subject to Congressional or judicial oversight. The three "commander-in-chief" powers are listed in succeeding gradations of severity: the power to "call out the armed forces," suspend the writ of habeas corpus and thus authorize warrantless arrests, or proclaim martial law. Significantly, the habeas corpus and martial-law powers are subject to automatic constraints. Congress may automatically review these declarations within fixed time periods "without need of a call." The Supreme Court may be called on by any citizen to exercise its power of judicial review, thus dispensing with the actual injury requirement for judicial standing. Finally, for emergencies of an economic nature, the state may "temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest." 61 Joaquin Bernas, a member of the commission that drafted the Constitution, explains that any citizen is given standing to bring appropriate action to challenge the action taken by the President. "This can be done even before Congress acts, and the decision of the Supreme Court would also bind Congress. But since the object of the Supreme Court's action would be the verification of 'the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege,' necessarily the Supreme Court's evaluation would be transitory if proven wrong by subsequent changes in the factual situation." 62 There is a long line of cases that demonstrated how the Supreme Court checked the President's power during emergencies. 59 Ibid., 917-8. 60 Sanlakas v. Reyes [2004] 466 PHIL 482. 61 Pangalangan RC (2016) Philippine constitutional law: majoritarian courts and elite politics. In: Chen AHY (ed) Constitutionalism in Asia in the early twenty-first century. Cambridge University Press, p 299. 62 Bernas (n 57) p 919. The Court's decisions were inconsistent and the indecisiveness of the Court revolved around the definition of "political questions." Initially deferring to the President, the Court held that "the President and his decision is final and conclusive on the courts." In Lansang v. Garcia and subsequent cases, the Court took the opposite view and held that the Supreme Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. The Court shifted the focus to the system of checks and balances, "under which the President is supreme, . . . only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department…" The Court would later give the President the sole power to declare the existence of emergencies: In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile. There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable question. Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter case, ratiocinating that "in times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his conscience, the People, and God." 63 Marcos was given all the power to define and deal with emergencies and for many years, he governed with an iron hand unchecked. 64 The 1987 Constitution's provisions on emergencies have been frequently tested. Emergencies of every kind have visited the Philippines from a spike in crimes to politically motivated mass murders. The Supreme Court, as I will presently show, has not been quick to assume its new role but has elected to perform a secondary role. President Joseph Estrada, invoking his powers as Commander-in-Chief, addressed a memorandum to the Chief of Staff of the Armed Forces of the Philippines (AFP) and the Chief of the Philippine National Police (PNP) directing them to deploy and Marines to assist the Philippine National Police in preventing criminal or lawless violence through visibility patrols in the metropolis. The Integrated Bar of the Philippines filed a petition to annul Letter of Instruction 02/2000 and to declare such deployment of the Marines null and void and unconstitutional. The Supreme Court determined whether the President's factual determination of the necessity of calling the armed forces is subject to judicial review. According to the Court, when the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. Saying it was clear from the intent of the framers and from the text of the Constitution itself, it added that the Court cannot be called upon to overrule the President's wisdom. The Court added, however, that this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis. 65 The next four cases involved President Gloria Macapagal-Arroyo's propensity to declare a states of emergencies. In every case, her proclamation was challenged as an attempt to exercise emergency powers without triggering the constitutional safeguards available when the President declares martial law. In every case, however, the Supreme Court simply classified her acts under the "calling out power," the most benign of her powers as Commander-in Chief, despite the fact warrantless arrests were being carried out. The first case involved an uprising that followed the arrest of former President Joseph Estrada so he could be tried for the crime of plunder. Estrada's followers erupted in protest. On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacañang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1, directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were thereafter effected. 66 All the petitions in this case assailed the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests that were allegedly being carried out. However, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the petitions were rendered moot and academic. The Court then addressed the claim that the proclamation of a "state of rebellion" was used by the authorities to justify warrantless arrests. The Court said, however, that the Secretary of Justice denied that it had issued a particular order to arrest specific persons in connection with the "rebellion." 67 The Court did say that in suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion." In 2003 The Supreme Court sided with the President. It held that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here had, by way of proof, supported their assertion that the President acted without factual basis. The Court simply said that in calling out the armed forces, a declaration of a state of rebellion is "an utter superfluity" and At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. Perhaps the declaration may wreak emotional effects upon the perceived enemies of the State, even on the entire nation. But this Court's mandate is to probe only into the legal consequences of the declaration. This Court finds that such a 67 Ibid. 68 More than 300 junior officers and enlisted men took over the Oakwood Premier in the Ayala Center, Makati City on July 27, 2003. They were led by Navy Ltsg. Antonio Trillanes IV, Army Capt. Gerardo Gambala, Army Capt. Milo Maestrecampo, Navy Ltsg. James Layug and Marine Capt. Gary Alejano. The soldiers claimed that they simply intended to air their grievances against the government, including graft and corruption in the military. See (2008) Oakwood mutiny backgrounder. GMA News Online. http://www.gmanetwork.com/news/story/33181/news/oakwood-mut iny-backgrounder/story. Accessed 18 June 2006. declaration is devoid of any legal significance. For all legal intents, the declaration is deemed not written. 69 The petitioners argued that the President's declaration of a "state of rebellion" was a means of imposing martial law without triggering the constitutional safeguards for the exercise of those powers. The Court disagreed and said that the argument "is a leap of logic." Said the Court: There is no indication that military tribunals have replaced civil courts in the "theater of war" or that military authorities have taken over the functions of civil government. According to the Court, "There is no allegation of curtailment of civil or political rights. There is no indication that the President has exercised judicial and legislative powers. In short, there is no illustration that the President has attempted to exercise or has exercised martial law powers." 70 One dissent saw beyond the President's ruse: Seven petitions alleged that President Arroyo committed grave abuse of discretion in issuing Presidential Proclamation No. 1017 and General Order No. 5. The President declared a state of national emergency in Proclamation No. 1017 citing a conspiracy among members of the military, of the New Peoples Army, and of the political opposition to unseat or assassinate her. Telecommunication towers and cell sites were bombed, an army outpost was raided, the New Peoples' Army and the National Democratic Front publicly warned of the President's ouster, and information regarding plots within the military were exposed. She issued General Order No. 5 and called upon the Armed Forces of the Philippines and the Philippine National Police to carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. Proclamation No. 1017 was lifted exactly a week after it was issued, but before all the petitions had been filed. One of the issues raised in the case was whether the Supreme Court can review the factual bases of Proclamation No. 1017. Petitioners argued that Proclamation No. 69 Sanlakas v. Reyes [2004] 1017 had no factual basis. Hence, it was not necessary for President Arroyo to issue such Proclamation. The Supreme Court explained the history of the Court's power to review the factual bases of the President's exercise of his Commander-in-Chief powers. The Court pointed out that early decisions declared that the authority to decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the courts. In Lansang v. Garcia, 72 the Court unanimously held that it has the authority to inquire into the existence of factual bases in order to determine the constitutionality of a declaration of an emergency. 73 Lansang was eventually reversed with the Court ruling that "in times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President, it said, is answerable only to his conscience, the People, and God." Some of the petitioners maintained that Proclamation No. 1017 is actually a declaration of martial law. The Court disagreed. It explained that what the President invoked was her calling-out power. It held that the petitioners failed to show that President Arroyo's exercise of the calling-out power was totally bereft of factual basis. In the end, the Court held that the proclamation was a valid act under Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, the Proclamation's provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court also ruled that under Section 17, 72 In re Lansang v. Garcia [1971] 149 PHIL 547. 73 There the Court held: Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended . . . ." It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion"-or, under Article VII of the Constitution, "imminent danger thereof"-"when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." For from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility. Article XII of the Constitution, the President, in the absence of a law, cannot take over privately-owned public utility and private business affected with public interest. 74 4.5 Ampatuan v. Puno, G.R. No. 190259, June 7, 2011 In response to the Maguindanao massacre, 75 President Arroyo issued Proclamation No. 1946, placing Maguindanao, Sultan Kudarat, and Cotabato under a state of emergency. She directed the Armed Forces of the Philippines and the Philippine National Police to undertake such measures as may be allowed by the Constitution and by law to prevent and suppress all incidents of lawless violence. She also issued Administrative Order 273-A, delegating supervision of the Autonomous Region of Muslim Mindanao to the Department of Interior and Local Government. The petitioners filed a case questioning the existence of a factual basis for such declaration and assailing the delegation for violating the principle of local autonomy and constituting an invalid exercise of the President's emergency powers. Petitioners argued that the President unlawfully exercised emergency powers when she ordered the deployment of AFP and PNP personnel in the places mentioned in the proclamation. Again the Court sided with the President and held that she did not proclaim a national emergency, only a state of emergency in the three places mentioned. The calling out of the armed forces to prevent or suppress lawless violence in such places is a power that the Constitution directly vests in the President. She did not need a congressional authority to exercise the same. Again the Supreme Court held that the President's call for the armed forces to prevent or suppress lawless violence springs from her "calling out power." The Court emphasized its limited powers when asked to inquire into the factual bases for the President's exercise of the "calling out power"; the Court would generally defer to the President's judgment on the matter. Citing Integrated Bar of the Philippines v. Zamora, the Court held that unless it is shown that such determination was attended by grave abuse of discretion, the Court will accord respect to the President's judgment. 76 74 David v. Macapagal-Arroyo [2006] 522 PHIL 705. 75 In November 2009, a convoy of politicians and their supporters, journalists and lawyers were shot and hacked to death by armed men believed to be working for the Ampatuans, a political dynasty that controls the province. The victims were on their way to file certificates of candidacy to challenge the Ampatuans' governorship which had always been unchallenged. See Conde C (2009) The making of a massacre in the Philippines. New York Times. http://www.nytimes.com/2009/12/ 11/world/asia/11iht-massacre.html. Accessed 18 June 2016. 76 Ampatuan v. Puno [2011] 666 PHIL 225. Still in response to the Maguindanao massacre, President Arroyo issued Presidential Proclamation No. 1959 declaring martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao except for identified areas of the Moro Islamic Liberation Front. Two days later, she submitted a report to Congress as required by Section 18, Article VII of the 1987 Constitution. Before Congress could act, the President already lifted martial law and restored the privilege of the writ of habeas corpus in Maguindanao. The petitions were filed to challenge the constitutionality of Proclamation No. 1959. The Court explained that the President and Congress share the power to proclaim martial law or suspend the privilege of the writ of habeas corpus: 1. The President's proclamation or suspension is temporary, good for only 60 days; 2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to Congress; 3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or suspension for the purpose of reviewing its validity; and 4. The Congress, voting jointly, may revoke or affirm the President's proclamation or suspension, allow their limited effectivity to lapse, or extend the same if Congress deems warranted. Under the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power jointly, because after the President initiates the proclamation or the suspension, only Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the President does not have. The Court, however, made a stunning interpretation of its powers under the Constitution: Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President's proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court… If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President's action, and ascertain if it has a factual basis. If the Court finds none, then it can annul the proclamation or the suspension. 77 There is nothing in the text of the Constitution that justifies this interpretation. The purpose of the provision being to check Executive abuse, the Court should have interpreted the Constitution as a way of providing multiple and simultaneous avenues for redress. Under this interpretation, when one branch of government (Congress or the Supreme Court) makes a determination as to the factual basis of the emergency, then that decision should bind the other. As explained earlier, the framers of the Constitution supports the view that the judicial remedy "can be done even before Congress acts, and the decision of the Supreme Court would also bind Congress." 78 It is also difficult to determine when Congress "procrastinates" or "fails to fulfill its duty." If discussions drag on, would it be time for the Court to step in? The Constitution merely directs Congress to convene within twenty-four hours but it does not provide a period of time within which to make its decision. The Philippine experience reflects the two schools of thought that dominates the discourse on the extent of judicial review of actions arising from political trauma. There are two main views about the proper role of the Constitution during national emergencies: the "accommodation" view and the "strict enforcement" view. Under the accommodation view, the Constitution should be relaxed or suspended during an emergency. An emergency requires the concentration of power and that constitutional rights be relaxed, so that the Executive can move forcefully against the threat. Constitutional norms can be relaxed during emergencies so that the risks to civil liberties inherent in expansive Executive power-the misuse of the power for political gain-are justified by the national security benefits. 79 Under the strict enforcement view, constitutional rules are not, and should not be relaxed during an emergency. This view observes that the Constitution already provides that the level of protection for civil liberties depends on the interest of the government. Consider, for example, "compelling interest" standards used to evaluate laws that discriminate against protected classes. When an emergency exists, the government has a "compelling interest" in responding to it in a vigorous and effective way. Thus, laws that would not be tolerated during normal times are constitutionally permissible during emergencies. The Constitution should be enforced "strictly"that is, the rules should be the same during emergencies as during normal times, even if outcomes differ, so that both civil liberties and government interests such as national security can be appropriately balanced, as they always need to be. 80 As the Philippine Supreme Court demonstrated during the Marcos regime, courts often defer to the exercise of enumerated, implied, and inherent powers by the other branches. The Court legitimated many extra-constitutional political constructions 78 Bernas JG (2009) that reshaped the administration of public power by the other branches. 81 The judiciary, in times of emergency and alleged emergency, usually defer to Executive claims. Infamous wartime cases such as Korematsu 82 "were regarded as badges of shame." But it also seemed that judges reverted to deference when national security concerns were alleged by the Executive, even outside of the context of wartime emergency. 83 Those who support judicial deference claim that courts are ill-equipped to assess the Executive's intelligence and security calculations, which often must be made rapidly and which carry important foreign policy implications. Under this view, the Executive is more accountable to the public than courts, such that its decisions will be guided and tempered by the public will. Those who seek judicial intervention say the Executive has undue incentives to emphasize security values over liberty values, and only a vigorous judicial role can counter that. They view robust judicial deference to the Executive as weakening a critical tool by which to inhibit a single branch of government from accruing undue power. 84 In most cases, courts use abstention doctrines and other tools to decline such cases on the merits. When courts do hear these cases, they often issue decisions that are highly deferential to Executive choices. 85 Despite the breadth of judicial power in the Philippines, the courts do not wield it freely. Judicial review involves "the delicate exercise of examining the validity or constitutionality of an act of a coequal branch of government" 86 and the Supreme Court "must continually exercise restraint to avoid the risk of supplanting the wisdom of the constitutionally appointed actor with that of its own." 87 In another case, the Supreme Court explained that the doctrine of separation of powers which imposes upon the courts proper restraint in striking down the acts of the Executive or the Legislature as unconstitutional. 88 The Court's function of review is limited: the Court may pass upon the constitutionality of acts of the Legislative and the Executive branches, since its duty is not to review their collective wisdom but, rather, to make sure that they have acted in consonance with their respective authorities and rights as mandated of them by the Constitution. If the Court finds no constitutional violations of any sort, then it has no more authority to proscribe the actions under review. 89 81 Brisbin RA Jr (2005) There is also pressure on courts to defer to Executive actors: judges deciding constitutional claims during times of emergency "should defer to government action so long as there is any rational basis for the government's position, which in effect means that the judges should almost always defer, as in fact they have when emergencies are in full flower." 90 Courts suffer from institutional disadvantages in resolving certain types of disputes. Courts defer to the Executive branch, for example, when dealing with foreign affairs controversies, including controversies regarding the allocation of foreign affairs powers. 91 The cases present a Court that is unwilling to assume its new role as a check on the exercise of emergency powers. Integrated Bar of the Philippines imposed a near-impossible standard to check the President's power to call out the military: that the President's decision is "totally bereft of factual basis." President Arroyo dealt with many emergencies but succeeded in evading constitutional checks by using several techniques. Pangalangan explained: The first is by pre-emption, that is to say, by mooting the case and forestalling judicial review through the expedient of lifting the emergency before the case is decided….Arroyo 'deviat[es] from the concise and plain' text of the Constitution, avoids the Constitution's 'graduated' levels of powers and checks, and simply calls her emergency powers by another name. The Constitution sets out the gradations: 'calling out', suspending the writ and proclaiming martial law. Arroyo instead used the terms 'state of rebellion ' (in 2001 and 2003) and 'state of national emergency ' (in 2006) . And why persist in what the court validated at best as a suspect legal superfluity? Because to use the exact text of the Constitution would have triggered the institutional safeguards. Change the labels, escape the checks. The third is by what I call 'doing without naming'. Arroyo sought to achieve her political aims without resorting to legal measures, or by simply applying the generic, non-emergency-related provisions of the criminal code. 92 The Supreme Court, with few dissents, did not censure her. Since the President's words did not trigger the Constitutional safeguards, there were no acts to strike down. By the time Fortun was decided, the Court had excused itself from its duties, assigning the primary task of checking abuse to Congress. There is an inconsistency between the traditional role of the Court in constitutional litigation and its new role as a super-constitutional check against Executive abuse. The Court's textbook explanation of its role is clear: its duty is to steer clear of declaring unconstitutional the acts of the Executive or the Legislative department, given the assumption that it carefully studied those acts and found them consistent with the fundamental law before taking them. 93 Recall that until the 1987 Constitution came along, the Supreme Court has pretty much deferred to the Executive on matters involving national security. The Constitution today, however, is directing the Court to determine abuse of discretion on the part of the Executive, depriving the Court of the opportunity to rule on the extent of its powers. Courts, Ginsburg wrote, play games of power in legal arenas: Courts can challenge others or can seek powerful allies. They can cautiously accumulate policy gains in an incremental fashion or boldly battle for large pieces of territory. They can choose their battles carefully, limiting conflicts to those they can win and thus making future threats credible; or they can blunder badly and provoke crippling counterattacks. 94 While courts are almost universally granted the power to exercise judicial review, they differ in the extent to which they are willing to exercise this power. 95 The extent of judicialization is determined by "the configuration of political forces and the receptiveness of courts to accepting controversial disputes." 96 Ginsburg's insights are helpful here: "Constitutional courts are institutionally cautious; yet through careful decision making they can entrench the constitutional system by inducing actors to remain in the constitutional order and comply with seemingly adverse decisions…. Where courts become bold, they may generate a backlash that actually reduces their freedom of action. 97 In a field as volatile as public emergencies, the Philippine Supreme Court crafted a more conservative role for itself. Constitutionally empowered to check the Chief Executive, the Supreme Court may yet be wondering what it has to gain by defying Executive findings that the public is in danger. The 1987 Constitution of the Philippines was designed to prevent a repetition of the excesses of the Marcos dictatorship. The Constitution expressly empowered the Supreme Court with the power to review the exercise of emergency powers. The Court, however, seems disinterested in assuming its new role. It has imposed a nearimpossible standard for litigants in striking down Executive acts, or stepped aside instead of stepping up to exercise its new powers. The 1987 Constitution has removed the Philippine case from the debates around the extent of judicial review over Executive emergency actions. The Court has the power to determine whether there was in fact an abuse of this power. 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