Tuesday, December 7, 2021
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That old uncomfortable feeling

We’ve stomped on these grounds before, with much suffering, I might add, so it befuddles me why my fellow citizens are not seeing it.  By seeing I refer to patterns and themes that by all means should be familiar to us as a nation; by familiar I mean that which is not cozy and welcoming as opposed to that which stirs up a sense of foreboding; and by foreboding I go beyond a generalized feeling of dread to one of resignation that history is repeating itself.  It is as Jose Rizal warned:  “Ang hindi marunong tumingin sa pinanggalingan ay hindi makakarating sa paroroonan.”

After the Supreme Court voted 10-5 in Lagman v. Pimentel to approve Rodrigo Duterte’s request to Congress to extend martial law in Mindanao until December 31, 2018, my mind immediately flew to another of its decisions in 1973, the case of Javellana v. Executive Secretary, notorious in history for condemning the Philippines to almost a decade of martial rule under Ferdinand Marcos.  It legitimized the dictatorship by pronouncing the 1973 Constitution, purely the creation of a mad genius, to be in full force and effect. Lagman does not venture to the same extent as Javellana, but it does point the country in the same direction.

I am old enough to recall martial law—the generational term coined for those of us who were born around that time is “martial law babies”—and it started out innocently enough with a national campaign against drugs.  I remember the grown-ups talking about crackdowns taking place.  Then, one evening, there was the surprise announcement of martial law on television, followed by a curfew, which was the first time I heard the word ever.  At the time, we were living in a cul-de-sac, which was already quiet, but with the national curfew, it became more so; in the evenings, even the crickets seemed to have stilled.

I remember the quiet of the past now when Rodrigo Duterte started implementing Oplan Tokhang.  Let’s face it, the drug menace never really went away but it does provide this President, much as it did his unlamented idol, the perfect platform from which to launch a
peace-and-order campaign.  Then he declares martial law, albeit limited to Mindanao, though even that by itself is suspect considering that only one city in the island was under attack by Muslim terrorists, and even that truthfulness of that circumstance—allegedly, the terrorists had taken over the city—is in doubt.  The 1987 Constitution, an imperfect document if ever there was any but nonetheless the product of much deliberation and forethought, puts in place several layers of safeguards meant to rein in the executive department’s abuse of martial law powers, but the actions of the Duterte administration are taking place against a particular backdrop: dispensing with this Constitution and replacing it with another.

The ingredients are all there and all in place.  There is a cult of personality centering on an individual with dictatorial tendencies, one who holds the most powerful office in the land, and the system of checks-and-balances that is supposed to temper those tendencies has been rendered useless by a complicit Congress and a supine Supreme Court.  Reading the majority opinion in Lagman, I grew particularly alarmed when the Court pronounced:

“The provision is indisputably silent as to how many times the Congress, upon the initiative of the President, may extend the proclamation of martial law or the suspension of the privilege of habeas corpus. Such silence, however, should not be construed as a vacuum, flaw or deficiency in the provision. While it does not specify the number of times that the Congress is allowed to approve an extension of martial law or the suspension of the privilege of the writ of habeas corpus, Section 18, Article VII is clear that the only limitations to the exercise of the congressional authority to extend such proclamation or suspension are that the extension should be upon the President’s initiative; that it should be grounded on the persistence of the invasion or rebellion and the demands of public safety; and that it is subject to the Court’s review of the sufficiency of its factual basis upon the petition of any citizen.”

When read alone, the argument sounds reasonable and faithful to the text, but that is in the realm of theory; in practice, the application is far different.  The Court is supposed to review the sufficiency of the factual basis of the President’s exercise of martial law powers, but did it do so in Lagman?  It did not. I would rather not resort to clichés but the words “hook, line and sinker” seem most descriptive. The Court, I find, practically abdicated its role in reviewing said factual bases when it relied utterly on the statements of the executive department.  Those statements should have been reviewed with a fine-toothed comb, tested rigorously for accuracy and truth and not “reviewed” predisposed to accepting it point by every point.

And a one-year extension?  That is setting a dangerous precedent, as pointed out by the five dissenting Justices.  It practically lays the groundwork for the extension of martial law throughout the land and for an indefinite period.  Filipinos are right to fear a repeat of martial law but there are fewer and fewer of us.  Many have bought into the myth, and difficult as it may be to accept, an equal or even greater number have been bought into the myth. G

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