by Nick Tobia
Just over a month and a half ago, President Rodrigo Duterte declared martial law over the entire island of Mindanao in the Southern Philippines. I had previously written a blog post on the martial law proclamation, and had argued essentially that it is the president’s prerogative to decide if a certain set of facts comprise one or several of the constitutional grounds for invoking martial law. The president’s power to promulgate martial law is undeniable.
The duration of martial law, however, is subject to limitations set in law. First, a state of martial law can only last for 60 days at most, extendible only at the initiative of the president and the concurrence of the legislature. Second, the legislature, voting jointly (i.e. both chambers), has the power to either ratify or revoke the martial law proclamation by majority vote. Finally, the Supreme Court can review the sufficiency of the factual basis of the proclamation of martial law. I had, again, previously argued that observers should wait to see how these limitations actually operate in reality. After all, martial law declarations are rare occasions, this being only the second instance since the promulgating the 1987 Constitution. It is also the first one where we expect a judicial ruling on the sufficiency of the factual basis for the proclamation, specifically a ruling based on the merits of arguments raised before the court.
That ruling was promulgated on July 4, 2017. It upheld Duterte’s martial law proclamation. There are many summaries of the decision from various new outfits, including this one.
Overview: Abdicating from Facts
Here at the outset, I argue that the decision of the supreme court effectively results in an abdication from its duty to genuinely review facts. It is generally not the venue to review facts, but martial law counts as an exception. The court states, and I agree, that in reviewing the sufficiency (i.e. whether or not there is enough) of the president’s factual claims of actual rebellion or invasion that underpin his martial law declaration, it need not review the accuracy or veracity of such claims (i.e. whether or not these are true).
I disagree, however, with sole reliance on the Duterte’s assessment of facts in making a determination on whether or not there is an actual rebellion/invasion. The court itself has the duty to make this determination independent of the president. This means that it must rely on a set of facts separate (but not necessarily entirely different) from that relied upon by the president. The court fails to do this duty first by narrowly limiting its review to the facts stipulated in the martial law proclamation and partly in the president’s report to congress (See page 48), and second, by deferring to the president’s prerogative to decide whether or not the information available at the time was sufficient basis to declare martial law (See page 61).
Based on the decision, determining what is, and what is not, a fact rests on the same authority that makes an a priori claim of fact, which in this case is the president. Therefore, all that is left for the Supreme Court to do is to decide if a president has made sufficient claims, regardless of whether these claims are indeed factual.
This is the result of our patience in seeing through how the constitutional limitations on martial law actually operate in reality. It is an absurd result in the supreme court, which compounds the disappointing manner that the legislative review process was conducted (See previous blog post). All that remains now is to see how the 60-day limit and extension/revocation process between the executive and legislative branches operates on July 22.
Sufficient Factual Basis Test
I focus my assertion on the introduction of a new jurisprudential test – the “sufficiency of the factual basis” test (See beginning page 48 of the decision). The court’s constitutional duty is only to review the sufficiency of the facts used as basis of proclaiming martial law. But, what constitutes sufficient factual basis? The decision states,
“…the parameters for determining the sufficiency of factual basis are as follows: l) actual rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is probable cause for the President to believe that there is actual rebellion or invasion” (See page 51, emphasis supplied).
It appears that all three parameters must be fulfilled to pass the test. To pass the test therefore, a court must always find for an actual rebellion or invasion, public safety factually requires martial law (or the suspension or the writ of habeas corpus), and that a president did in fact have probable cause. The construction of the parameters is untidy, however, and the overlap between #1 and #3 with regards to “actual rebellion or invasion” will create tremendous confusion. More on this later. The most important implication here is that Parameter #3 can never be fulfilled unless the president correctly, as opposed to mistakenly, believes that there is an actual rebellion or invasion.
But can the president mistakenly believe that there is an actual rebellion or invasion, and still fulfil Parameter #3?
Mistaken Belief: Testing the logic
The answer is yes, but then logically, Duterte’s martial law declaration cannot pass the sufficiency of the factual basis test. A mistake in assessing an actual rebellion/invasion is fatal to passing the test, not because the president is disallowed from making errors in his probable cause assessment; rather, a mistake simply means that the first parameter is not met. That is, there is no actual rebellion/invasion.
Probable cause has a technical meaning in criminal law, pertaining to an average man with no legal background who weighs facts and circumstances, relying on common sense, and finds that more likely than not, a crime (i.e. rebellion or invasion) had been committed. The implication is that Duterte, thinking with the common sense of an average man, can mistakenly believe that there is an actual rebellion or invasion, based on inaccurate information or mistaken assessment of the veracity of facts, and still fulfil the third parameter of the test. Though probable cause gives Duterte leeway for timely decision-making despite inaccuracies, his determination of actual rebellion/invasion is controlling only in so far as his prerogative to declare martial law. It is not controlling, however, as to whether or not it meets the requirements of sufficient factual basis test.
Temporarily disregarding Parameter #2, consider whether or not it is possible that, on the one hand, the president is mistaken, though he had probable cause, in his belief that there was an actual rebellion or invasion (i.e. Parameter 3, but mistaken), while on the other hand, the court finds that there is an actual rebellion or invasion (i.e. Parameter 1). This scenario is a logical absurdity. Though the scenario fulfils both Parameters 1 and 3, it cannot both establish that there is and isn’t an actual rebellion/invasion. Still disregarding Parameter #2, I find that the only possibility of successfully passing the sufficient factual basis test is for the court to find that there is an actual rebellion or invasion, and therefore previously, the president correctly believed the same, based on a probable cause assessment. The most important implications of this logical exercise are as follows:
- Parameter #1 and #3 both refer to an assessment of whether or not there is an actual rebellion or invasion. Parameter #1 directly inquires into the fact, while Parameter #3 only inquires into whether or not probable cause was used in the assessment;
- Parameter #1 and #3 are separate assessments. Parameter #1 is one conducted by the Court, and #3, by the president;
- An allowance for mistaken assessments based on inaccurate facts is immaterial to Parameter #3. The only question is whether or not the president, acting as if an average man using common sense in assessing available information, would find that it is more likely than not that there is an actual rebellion or invasion;
- Whether a president is correct or mistaken in his probable cause assessment hinges on whether or not Parameter #1 is answered in the affirmative. Therefore, in so far as the existence of an actual rebellion/invasion is concerned, it is Parameter #1, not Parameter #3, that is controlling.
- Thus, the supreme court should always make a determination of whether or not there is an actual rebellion or invasion.
Mandatory: Accuracy and Veracity
However, the implications of this logical exercise contradict the decision of the supreme court. The problem emerges at the intersection of the probable cause assessment of the president (Parameter #3), and where the court limits its review of the sufficiency of the factual basis only to those facts stipulated by the president in (a) the martial law proclamation document, and (b) the corresponding report to congress, documents prepared by the president. The court stated:
“…the determination of this Court as to whether there is sufficient factual basis for the exercise of [martial law], must be based only on the facts or information known by or available to the President at the time he made the declaration or suspension, which facts or information are found in the proclamation as well as in the written Report submitted by him to Congress” (See page 48).
In my opinion, this portion of the decision impairs the ability of the supreme court to make a factual determination of the first (i.e. actual rebellion or invasion) and second parameters (i.e. requirements of public safety), independent of the president’s own probable cause assessment of facts and information available to him.
I agree with the court’s acknowledgement that the president has the sole prerogative to decide on the accuracy and veracity of the alleged facts, and information available to him at the time he makes the martial law declaration. Only the president has the prerogative to subsequently act upon his assessment of the accuracy and veracity of such facts and information. Indeed, on page 54, the court states,
“…the purpose of judicial review is not the determination of accuracy or veracity of facts upon which the President anchored his declaration… rather, only the sufficiency of the factual basis as to convince the President…”
I argue, however, that this cannot be taken to mean that the supreme court need not make a determination of accuracy or veracity of any facts. It must be repeated here that the first parameter in the sufficient factual basis test is a determination of an actual rebellion or invasion, and that it is a separate parameter from the probable cause determination of the president. Therefore, judicial review demands a determination of the accuracy or veracity of a set of facts that are independent of the set relied upon by the president.
The supreme court avoids that task of determining the accuracy or veracity of the facts upon which the President relied. Yet in its duty to determine an actual rebellion/invasion, it limits its review to exactly the same set of (claimed) facts relied upon by Duterte, the purpose of which is to not to establish fact, but a common sensical belief in the likelihood of a fact. How then can the supreme court make an independent determination of “actual rebellion or invasion”? Or even a determination of the actual requirements of public safety?
The result of limiting the facts to what was contained in the president’s promulgation (and partly the report to congress) is that the court essentially conflated its determination of facts with that of the president. On pages 64-65, it claims other “independent facts showing that more likely than not, actual rebellion exists…” This line, in my opinion, illustrates the confusion of the court over the task of determining actual rebellion/invasion. The independent facts here refer to facts that are still within the promulgation and report, but independent of the allegedly false stipulations therein. Moreover, “more likely than not” is the standard of proof applied to the president.
68 pages into the an 82-page decision, I still could not find the a determination of Parameter #1 independent of the Parameter #3. The court sealed its abdication by conceding at page 68 that it does not have the same fact-finding capabilities as the executive branch, and must therefore rely on the capabilities of the latter. Effectively, it concurred with the president. The duty to determine actual rebellion/invasion (i.e. Parameter #1) could not be distinguished from the probable cause determination of the president on the actual existence of rebellion/invasion (Parameter #3).
Of the three parameters for determining sufficient factual basis, the supreme court effectively negated the first two in favor of the third (i.e. there is probable cause for the president). Could the court have intended Parameters #1 and #3 to be one and the same? Could it have intended to conflate the two, thereby excluding any evidence presented by petitioners pertaining to facts beyond what was stipulated in the martial law promulgation and report to congress? Unless there is an appeal in the pipelines, or another martial law declaration in the near future, then we may never know if the recitation of a three-parameter test for sufficiency of factual basis was purposefully meant to be confusing.
Facts: An epilogue
The end result of the decision appears to be that the court had effectively abandoned any duty of establishing facts, other than those established by the president under a standard or probable cause. Sufficient factual basis as a concept, legal or logical, loses its meaning because the facts in ‘factual’ do not need accuracy or veracity.
The supreme court decided that the ‘accuracy and veracity of facts’ is different from ‘sufficiency of facts’. That is, facts can be sufficient for a given purpose even without assessing their accuracy and veracity. Again, I agree that this is acceptable in the traditional power of the president to declare martial law. Duterte does not need a standard of information accuracy or veracity other than what he is satisfied with, and this is inherent in executive power in times of emergency. Lamentably, this cannot be the same standard for a court’s separate determination of an actual rebellion/invasion. Thus, for the supreme court to abide by its own test for sufficient factual basis, it must delve into determining accuracy and veracity of facts surrounding the martial law in Mindanao, whether or not these are the same facts upon which the Duterte relies.
Facts, in ordinary dictionaries, are simply things with actual existence, or events of that have actually occurred. Is there a fact of rebellion/invasion? Some facts are straightforward and easily verifiable, especially scientific facts. Law, however, is decidedly not a precise science, no matter any assertions to the contrary. What constitutes rebellion or an invasion or a valid basis for declaring martial law have technical meanings and have objective characteristics; and yet, it is easy to forget that facts can also be hegemonic assertions. It can be the most vociferous opinion that excludes others to such an extent that it ceases to be opinion, and becomes an accepted fact.
In the judicial review process over Duterte’s martial law declaration, the competing advocates for what constitutes facts are not simply the Solicitor General versus the many petitioners. Judicial review here is not simply an impartial venue for hegemonic competition; it is itself an act of the judiciary to engage and compete with the co-equal branches of government to establish facts surrounding martial law. This is the nature of the supreme court and the legislature acting as checks and balances against the executive’s prerogative to declare martial law. The decision called the court’s review power a “passive” remedy, while that of congress is “active”. In either case, active or passive, each one operates in a different manner towards the same thing – asserting the fact of a valid or invalid martial law declaration. So far, in both cases, Duterte’s martial law proclamation, and the ‘facts’ that accompany it, are validated. All that remains now is to see how the last of the check and balance mechanisms, the 60-day limit and extension/revocation process between the executive and legislative branches, operates on July 22.
Nick Tobia is a PhD candidate at the National Centre for Peace and Conflict Studies, University of Otago. He was a former civil servant at the national human rights commission in the Philippines, and officer at the regional human rights commission of ASEAN. The views expressed here are his own.