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Subtext is all, and if we are to read between every line of Fortun v. Arroyo, the March 20 Supreme Court decision penned by Justice Roberto A. Abad but released to the media only this week, we may find ourselves speculating on a few unaddressed subjects.
Fortun dismissed, on the ground of mootness, seven petitions which questioned the constitutionality of Proclamation No. 1959 issued by then president Gloria Macapagal Arroyo on December 4, 2009.
Proclamation No. 1959, infamously, put the province of Maguindanao under a state of martial law and suspended the privilege of the writ of habeas corpus in the province; this was the first time under the 1987 Constitution that a sitting president had exercised the power to declare martial law, the dark precedent being that imposed by Ferdinand Marcos which lasted nine years.
The proclamation followed the Maguindanao massacre which implicated members of the ruling Ampatuan family in the death of 58 men and women who were killed using high-powered firearms and then hastily buried using a backhoe owned by the provincial government.
Arroyo issued the proclamation based on reports supplied by the Armed Forces of the Philippines alleging that incidents of lawless violence were being perpetrated in the province by a large mass of armed men. Complying with Charter requirements that after declaring martial law, the President must submit a report to Congress within 48 hours from the declaration, Arroyo submitted her report on December 6.
However, before Congress could act on the report, on December 12, Arroyo issued Proclamation No. 1963 lifting the state of martial law and restoring the writ of habeas corpus in Maguindanao.
Voting 9-6, the Court ruled that to pass judgment on the constitutionality of Proclamation No. 1959, which was in effect for a mere eight days, would be “the equivalent of flogging a dead horse.”
The lifting of the proclamation was a "supervening event" such that to still decide the case would present no practical use or value. The Court, the majority opinion emphasized, “does not resolve purely academic questions to satisfy scholarly interest, however intellectually challenging these are,” particularly when the issue of constitutionality can be avoided altogether.
But let us proceed to the subtext.
The decision cites section 18, article VII of the Constitution, which states: "The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing."
In a rather studied discussion, the decision explains:
But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its duty without pre-empting congressional action. Section 18, Article VII, requires the President to report his actions to Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the Congress is required to convene without need of a call within 24 hours following the President’s proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress. Whatever form that action takes, therefore, should give the Court sufficient time to fulfill its own mandate to review the factual basis of the proclamation or suspension within 30 days of its issuance.
If we are particular about the details - and we need to be - then we can legitimately nag: why did the Court need more than two years to declare the issue moot and academic?
Recall the Charter provision cited and then ask, why wasn't the dismissal of the petitions on the ground of mootness decreed within the 30-day period when the issue was still fresh?
The unexplained failure gives ammunition to the dissents of Justices Antonio Carpio and Presbitero Velasco that the Court should have capitalized on the opportunity to rule on the merits of the case. Velasco employs the idiom of a slightly disfigured bovine to argue that "... despite the lifting of the martial law and restoration of the privilege of the writ, the Court must take the bull by the horn to guide, explain and elucidate to the executive branch, the legislative branch, the bar, and more importantly the public on the parameters of a declaration of martial law."
On his part, Carpio fears that the majority opinion "… sets a very dangerous precedent to the leaders of this country that they could easily impose martial law or suspend the writ without any factual or legal basis at all, and before this Court could review such declaration, they would simply lift the same and escape possible judicial rebuke."
Carpio and Velasco raise valid points, but what makes the subtext more interesting is the company they keep.
Newspapers report that Renato Corona joined in the dissent of Velasco, which must surely qualify as a first since the Chief Justice is widely perceived as an Arroyo partisan.
Note carefully that Corona joined Velasco - not Carpio, his declared enemy in the Court - but his dissension is grounded not only on personalities but also on calculation.
Velasco's opinion condemns Proclamation No. 1959 yet absolves Arroyo - like that Catholic stand-by of hating the sin but loving the sinner. Not so Carpio.
The next-most senior justice accuses Arroyo, who bypassed him in her choice for Chief Justice, of placing Maguindanao under martial law "to show her indignation over the gruesome massacre and her swift response in addressing the difficult situation involving her close political allies."
Corona's dissent in Fortun signifies two things.
First, it creates a subtle public impression that he is an independent-minded magistrate, an image that could come in handy in his impeachment trial.
More importantly, it subtly signals to Arroyo that Corona's voting in subsequent Arroyo cases cannot be taken for granted, that Arroyo better give some support for the man who is getting more than he bargained for.
Reading between the lines, Corona's vote in Fortun is a "Dear Jane" letter to his appointer that their love affair may be nearing its end.