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Recent FAQs about proclamation of Martial Law

NB: Here’s my take on the recent LEGAL issues re: Martial Law. Comment if you have something to refute against or concur with. Thanks!

duterte-martial-law-20170119

Source: Rappler

Q: Is the Congress required to convene after the proclamation of Martial Law?

A: Yes, it is. The case of Fortun/Colmenares v. Arroyo, G.R. No. 190293, March 20, 2012 is instructive. This case was pointed out by KABATAAN Partylist Rep. Sarah Elago in one of her Tweets, and reiterated by former Ateneo de Manila School of Law and Governance dean, Prof. Tony La Vina in his newspaper column, weeks ago.

First, the Court said that the Congress’ exercise of its review power vis-a-vis the President’s proclamation of Martial Law is “automatic rather than initiated“. Then it went saying, “[T]he Congress is required to convene without need of a call within 24 hours following the Presidents proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress.” In that case, the Court reiterated the procedure under the Constitution, to wit:

“Xxx xxx xxx

  1. The Presidents 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 Presidents proclamation or suspension, allow their limited effectivity to lapse, or extend the same if Congress deems warranted.”

That the Congress is required to convene is just logical. It is only when the Congress has convened in joint session, and after their own review, would the citizens know that at least a majority of all its Members would want to uphold or revoke, officially, the proclamation. But, until then, any statement to the effect that the members of the Congress would want to uphold the proclamation would only remain as rumor, speculation or conjecture at its best.

 

Q: What if the Congress refuses or fails to convene within 24 hours? May the Supreme Court compel the Congress to convene?

A: Yes, I believe so, since it is “required” of the Congress to convene, as enunciated by the Court in Fortun/Colmenares v. Arroyo. However, it is almost impossible since the Congress only has 24 hours within which to convene and review the proclamation. That means that if a Mandamus petition will be filed before the Supreme Court to compel the Congress to convene, the Court would have to decide as well within 24 hours on whether or not to grant the Mandamus petition. I think, that is almost impossible to achieve.

 

Q: Can a concerned citizen file a petition directly with the Supreme Court to review the proclamation instead of waiting for the Congress to convene within 24 hours?

It depends. If the 24-hour period has not yet lapsed, the Supreme Court cannot entertain the petition for it would then be premature and would be violative of the Principle of Separation of Powers should the Supreme Court decide on the petition.

Fortun/Colmenares v. Arroyo is again instructive on this matter. The Court explained,

“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…. The constitutional validity of the Presidents 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.”

In other words, it is only when the Congress failed to Convene within 24 hours may the Supreme Court step into the picture.

“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.

Xxx xxx xxx

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 Presidents action, and ascertain if it has a factual basis.”

 

Q: Recently, a petition has been filed with the Supreme Court assailing President Duterte’s proclamation of Martial Law. In an interview with Inquirer,* Sen. Tito Sotto warned that there might arise a Constitutional crisis if the Supreme Court should order the Congress to convene and review the proclamation and the Congress would defy such order, noting that, for example, the Senate had recently junked the Senate Minority’s resolution calling for a joint session. Would that really happen?

A: I am not sure if there are several petitions filed. In one Inquirer report, a petition was filed assailing the factual basis of Duterte’s proclamation of Martial Law in Mindanao. In another Inquirer report as cited above, it says that Rep. Lagman et al. is asking the Court to compel Congress to convene in joint session. So, maybe there are several petitions filed.

But I think the latter petition will be declared moot since the 24-hour period given by the Constitution to Congress to jointly convene has already lapsed. But, if the said petition also assails the factual basis of the proclamation, I think it will not be dismissed on mere technicality but, on account of transcendental importance, will be consolidated with the other petition(s).

So, in other words, there will be no Constitutional crisis that would arise since, most likely, the Court will not order the Congress to convene, it being already moot. What the Court will do is to exercise its Constitutionally-granted power to review the President’s proclamation of Martial Law. The Constitution provides that the Court has 30 days from the filing of the petition to review whether or not there is sufficient factual basis for the proclamation. “If the Court finds none, then it can annul the proclamation or the suspension (Fortun/Colmenares v. Arroyo, 2012).” In other words, the Supreme Court is the last and ultimate Arbiter on this matter.

However, the Court must decide before the President would lift the proclamation; otherwise, the issue will become moot.

 

PS: It may be argued that the above-cited pronouncements of the Supreme Court may be considered as Obiter Dictum because they do not answer the issues raised in the Fortun/Comlenares’ petitions. Nonetheless, as I said, that the Congress should convene in joint session is just logical.

*http://newsinfo.inquirer.net/903114/sotto-warns-of-possible-constitutional-crisis-over-martial-law-debate?utm_term=Autofeed&utm_campaign=Echobox&utm_medium=Social&utm_source=Facebook#link_time=1496738342

 


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Initial Victory!

A very warm nationalist greetings to everyone for our initial victory against the Cybercrime Prevention Act of 2012. The Supreme Court has finally released a Temporary Restraining Order (for full text, click here)that suspends the implementation of the law for 120 days.

This is another proof that with our militant action and mobilizations like rallying, we gain victories and with the same form of action, we will achieve full victory against the Cybercrime Law! Ergo, CONTINUE THE STRUGGLE!

Fight for our Freedom of Expression!

Fight for Genuine Democracy!

Junk RA 10175!

Recommended link:

http://kabataanpartylist.com/blog/global-clamor-for-cybercrime-law-repeal-intensifies-with-issuance-of-tro/