Rethinking Progressives' Move

On June 7, 2017, over 300 lawyers filed a petition for mandamus before the Supreme Court to compel Congress to convene to discuss Martial Law in Mindanao declared by President Rodrigo Duterte. 

The said petition says "Petitioners come before this Honorable Court to invoke one such constitutional mechanism - joint legislative review of martial law long after President Marcos lifted Proclamation No. 1081 and 30 years after the 1987 Constitution."

Former solicitor general Florin Hilbay, one of the petitioners, further explained the petitioners' position before the media: "Congress has the ministerial duty to convene a joint session and deliberate the factual and constitutional bases for martial law. Government should not be allowed to violate the Constitution."

Right Call...

In my opinion, the petitioners are making the right call in upholding the Constitutional safeguards vis-a-vis the use of Martial Law.

Although Article VII Section 18 (Executive Department) only speaks of the power of legislature to "revoke" a martial law proclamation if deemed necessary, Article VI Section 23 (Legislative Department) provides that it is Congress that "may, by law, authorize the President, for a limited exercise powers necessary and proper to carry out" a declaration of national emergency or state of war. Article VII Section 18 also requires the president to pass a report to Congress within 48 hours after Martial Law is declared.  

This is explicit of the role of Congress to review and check a declaration of Martial Law - which will require the convening of both Houses of Congress. The president has the power to declare Martial Law, but after 48 hours, such power is subject to the authorization by Congress. This is the point of the mandate of the president to submit a report and the power of Congress to revoke the declaration.

The convening is not dependent on whether Congress will agree or disagree with the declaration. Even when Congress will simply uphold the President's declaration (an assumption that no one is entitled to assume), Congress still have to be convened because after 48 hours, as per principle of checks and balances, the authority of Martial Law will come from the legislature not revoking (hence authorizing) the President to continue Martial Law. This means, the legislature will share the accountability, if not the body ultimately accountable, for the decision. 

What is the philosophical premise of this? Beyond the principle of checks and balances, such critical duty is delegated to the legislature because the legislature is the body that is considered as the "representative of the people." Decisions, such as a declaration of Martial Law, that suspend fundamental rights must involve the people who in our current legal-institutional framework are represented by Congress. This also avoids such power being controlled by one single political actor, the president, which, in our history, has proven to be devastating.

Not convening Congress in light of the declaration of Martial Law is a relegation of duty. It blurs the lines of accountability and undermines the very checks that protect the people from abuse of power. It is a betrayal of public trust and can be argued as a violation of the Constitution.

...Unwise Move?

While the move is commendable, it makes me wonder what exactly is the result the petitioners are aiming for.

The decision of these 331 lawyers, including Senator Leila de Lima, to go to the Supreme Court is a move expected from lawyers that are concerned about the rule of law and justice. Congress refuses to do its Constitutional mandate to check the Executive, the Supreme Court must be activated to intervene. 

However, this is a move that seems to have forgotten that this case is being filed before the same Supreme Court that allows the burial of Marcos and that freed Enrile over a lousy unjust so-claimed humanitarian reason.

Either way that the Supreme Court decides on this case, there will be a problem.

If Supreme Court decides to compel Congress to convene to discuss Martial Law, the question remains: will Congress yield? What happens if Congress resists the Sureme Court? 

This case might simply be showcasing a fundamental flaw of the system: deadlock and overly-powerful Executive.

If the Supreme Court decides to side with Congress and the Executive, just like what happened in the Marcos burial decision, a case filed by the progressive might just turn a wrong/ reactionary application of the law legitimate and institutional. The system that is designed to prevent another Martial Law is being pushed to accept and justify creeping authoritarianism by the elements in society that is against Martial Law. A perversion in our flawed system. 

The Challenge in our Midst

Have we come to a point when even those who were once reform elements in the "truncated procedural democracy" have become integrated (accustomed, immersed, assimilated) in the system over time that they behave predictably in harmony with the system even when the system is already showing its decay, malfunctioning and total ineptitude?

I am not sure if the elite of this country, including the civil society and opposition elites, get it. This is going to be a long fight. There are no shortcuts, and progressives can no longer rely on media stunts. 

To get this right, progressives cannot rely heavily on institutions, on legalities, on laws, on media projections, on top-down processes wielded by a few. They need to go down to the people. They need to make the change that they demand rooted in citizens' everyday politics and owned by ordinary people. 

Take for instance this case: if progressive want Congress to move to check the Executive's declaration of Martial Law, the way to go is to mobilize people to pressure their legislators. Long shot. Lots of work. Lots of problems. But that's a way, if not the only way, that provides sustainable solution to the deeply-rooted problems we are currently facing.