Despite the overwhelming vote (261 against 18) of the joint special session extending the period of martial law and the suspension of the writ of habeas corpus for another 150 days or up to December 31, 2017 in the whole of Mindanao, such landslide result must not deter resort to the Supreme Court.
The super-majority in both Chambers can be wrong legally and politically.
The following justiciable issues can be raised before the High Court:
1. Lack of sufficient factual basis for the extension since what is happening in Marawi is lawless violence amounting to terrorism, not actual rebellion.
Under the Constitution, it is only when there is actual rebellion or invasion, not terrorism, when public safety requires it that martial law can be declared.
2. The extension’s coverage over the entire Mindanao is infirm because there is no actual rebellion in the rest of Mindanao, which fact no less than Defense Secretary Delfin Lorenzana admitted before the joint special session. Lorenzana also admitted that civilian authorities continue to function in Marawi City and the whole of Mindanao.
3. The extension for 150 days is inordinately long and is against the intent of the Constitution.
Among the safeguards provided for in the Constitution are the (1) limited duration of the declaration of martial law and the suspension of the writ of habeas corpus; and (2) the mandatory requirement that any extension must be concurred to by the Senate and the House. These safeguards are eroded by an extremely long extension.
While the Constitution does not provide for the duration of the extension, the discretion of the Congress in fixing the period of the extension is not absolute.
The Congress must be guided by the constitutional precept that any declaration of martial law and suspension of the writ of habeas corpus or its extension must only be for a limited period like the original Proclamation which is limited to only 60 days.
It stands to reason that any extension should not exceed 60 days, the limited duration of Proclamation No. 216 which originally imposed martial law.
EDCEL C. LAGMAN