Dissenting SC justices: No need for martial law in Mindanao

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Metro Manila (CNN Philippines, February 10) — No actual rebellion in the south.

This was the common theme in the dissenting opinions of Supreme Court (SC) Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio, Associate Justice Benjamin Caguioa, Associate Justice Francis Jardeleza and Associate Justice Marvic Leonen on the High Court's decision to uphold the extension of martial law in Mindanao until the end of 2018.

In the majority's decision, ponente Associate Justice Noel Tijam said martial law is necessary due to the persisting rebellion from remnant forces of the ISIS-inspired Maute group.

READ: SC upholds martial law extension in Mindanao

The group charged into Marawi City on May 23, 2017 as government forces were attempting to arrest former Abu Sayyaf Group (ASG) leader Isnilon Hapilon, who had been supposedly appointed "emir" of Southeast Asia by terrorist group ISIS.

TIMELINE: The Marawi crisis

The day after, President Rodrigo Duterte declared martial law in Mindanao for 60 days, which Congress later extended till the end of 2017.

READ: Congress grants Duterte's request to extend martial law in Mindanao until end of year

In addition, Tijam said the majority agreed with the government's position that other rebel groups in the region like the ASG and the New People's Army (NPA), the armed wing of the Communist Party of the Philippines, also form part of the persisting rebellion.

All these, he said, pose a significant danger to public safety.

"They are engaged in armed conflict with government forces; they seek to topple the government; and they sow terror and panic in the community," Tijam said.

Under the 1987 Constitution, the President, with the concurrence of Congress, may declare and extend martial law only in cases of invasion or rebellion and when public safety requires it.

What rebellion?

But the dissenters said the rebellion had long ceased, with Duterte himself saying so.

Caguioa cited Duterte's December 8 letter to Congress, which he said shows that the uprising that led to the declaration of martial law "had already been subdued by government forces."

Meanwhile, Carpio said the end of the five-month-long Marawi crisis marked the end of martial law.

"Any extension pursuant thereto is unconstitutional since the Maute rebellion already ceased, with the death of its leader Isnilon Hapilon and the liberation of Marawi City," he said.

READ: Duterte declares liberation of Marawi

The magistrates also said the mere threat of another rebellion by remnant forces is not a sufficient ground to extend martial law.

"Capability to rebel, absent an actual rebellion or invasion, is not a ground to extend the declaration of martial law or suspension of the privilege of the writ," Carpio said.

"That some enemy fighters remain alive does not mean that a battle has not been won," Caguioa said. "In this case, to require first the 'total eradication' of rebel groups before a rebellion can be considered quelled goes against plain logic and human experience."

READ: Duterte says martial law to remain until last terrorist is taken

Meanwhile, Carpio argued the President, instead of extending the original martial law declaration, should promulgate a new declaration if it believes the NPA rebellion poses a sufficient threat to public safety.

"The government can cite the NPA rebellion as a ground for the imposition of martial law and suspension of the privilege of the writ, but the 60-day period prescribed by the Constitution must first be observed before the government can ask for an extension of such emergency measures," he said.

Threat to public safety not big enough

The dissenting justices also argued the current situation in Mindanao is not grave enough to warrant martial law.

"The resulting damage or injuries cannot simply be the usual consequences of rebellion or invasion," Leonen said.

They also said martial law is generally used when civilian authorities are no longer enough.

"Martial law is an emergency governance response that is directed against the civilian population -- allowing the military to perform what are otherwise civilian government functions and vesting military jurisdiction over civilians," Caguioa said.

Meanwhile, Jardeleza proposed two indicators of public safety before the government implements martial law: The presence of hostile groups "engaged in actual and sustained armed hostilities with government forces" and if the groups have "actually taken over, and are holding, territory."

Perpetual martial law possible

Some of the justices also warned how the High Court's latest decision on extending martial law could lead to abuse, as it was a precedent that "dangerously supports the theoretical possibility of perpetual martial law."

Meanwhile, Leonen said the decision on extending martial law in Mindanao is reminiscent of the SC's 1973 ruling that allowed martial law to remain during the regime of the late strongman Ferdinand Marcos.

"It erodes this Court's role as our society's legal conscience," he added. "It misleads our people that the solution to the problems of Mindanao can be solved principally with the determined use of force. It is a path to disempowerment."