Episode 40: Justice Leonen’s fact-riddled, law-based dissent

So, this opinion article by Atty. Oscar Tan popped up in my feed yesterday. I’ve known Atty. Tan from since before he had the prefix to his name, so I casually commented:


(NB: “Rakso” is Atty. Tan’s pre-lawyer internet handle. No disrespect meant.)

And so, here I am, holding up my end of the deal.

I encourage you, dear reader, to take some time to read the Lagman v. Medialdea decision in its entirety, including the concurring, separate, and dissenting opinions (but not necessarily in that order).

Without further ado:

“People quote the dissent’s lines with great emotional appeal, but the actual legal portions have no basis.”

I suppose the appropriate response here is “Challenge accepted?”

“First, Leonen argues martial law is invalid as President Duterte declared it but did not define what it allows.”

Inaccurate. Justice Leonen’s argument is that the declaration is void for being unconstitutionally vague (more on this later) under due process considerations, as it deprives people sufficient basis to know what conduct they may be penalized for under martial law.

“But that is Leonen’s job. Past presidents declared a “state of rebellion” or “state of national emergency.” The Supreme Court ruled these grant no new powers.”

Justice Leonen does, in fact, outline how martial law should be understood, as well as the powers it necessarily and optionally includes under the text of the 1987 Constitution.

Also, I fail to see how declarations of states of rebellion or emergency become comparable to declarations of martial law – or does Atty. Tan try to argue that there is in fact no distinction?

“Second, Leonen argues Mr. Duterte should use normal “calling out” power to deploy the army, not martial law. But this is a political, not legal, point.”

Atty. Tan missed the part about how Leonen discusses and establishes, at length, the fact that the Maute group is a terrorist group not committing rebellion. That being the case, there is no factual basis from which to declare martial law, one of the two key precedents being absent. This is most certainly a legal point.

Atty. Tan also missed the part where Justice Leonen agrees that striking down Proclamation 216 does not affect Proclamation 55, which imposed a state of emergency throughout Mindanao and is the basis for the exercise of “calling out” powers in the island. In effect, Justice Leonen says that should the martial law declaration be struck down, Duterte’s exercise of calling-out powers is still in effect and may still be utilized to deal with the Maute threat.

“Third, Leonen argues the wrong case. The issue is Mr. Duterte’s sufficient — not perfect—factual basis. Passing is 50 percent, not 90 percent. Justices thus gauge the big picture, not single factual errors.”

This line amuses me for two reasons. First, it amuses me because it in uncharacteristically inaccurate representation of the rule laid down in the main ponencia of Justice Del Castillo – that is, that the standard of “sufficiency” is that of “probable cause” in the same vein as the standards of prosecutors in filing criminal informations and of judges in issuing warrants of arrest. Which, let’s face it, is a pretty lax standard by comparison, considering how martial law can potentially curtail civil freedoms.

The second reason, I shall discuss in a bit.

“Leonen goes far beyond facts to show Mr. Duterte interprets intelligence reports and the cultural context of Salafi-jihadis. He insists hundreds of armed men are terrorists and cannot possibly be rebels.

Even if he is right…”

Welp, Atty. Tan, I’m going to have to stop you right there. Because if Justice Leonen is right, then there is truly no factual basis to declare martial law in Marawi, much less the entire island of Mindanao. An electoral mandate can never and will never save an unconstitutional proclamation.

“The Constitution allows Congress — not the Supreme Court — to review Mr. Duterte’s interpretation of facts.”

The crux of the dissent actually deals with the absence of facts, rather than the mere interpretation of a given set of fact allegations, that would support a declaration of martial law at the time it was declared. Justice Leonen is consistent with this throughout his dissent.

“Fourth, Leonen imprecisely conflates martial law and calling out. He rightly asks why armed forces orders on martial law mix dismantling the New People’s Army, private armies and drug syndicates.

But the president may ‘call out’ troops any time. Invalidating abuse of calling out is separate from invalidating martial law.”

The reason why the question was asked is that Justice Leonen found the declaration of martial law to be unconstitutionally vague. Thus, General Order 1, aside from being an exercise of the “calling out” power, serves as an illustration of the very vagueness Justice Leonen points out.

“Fifth, Leonen breaks from centuries of martial law doctrine to search for new bases. He applied “void for vagueness” — a freedom of speech doctrine — to the martial law declaration’s text, an odd mix and match.”

This is a most surprising statement from Atty. Tan. I am fairly certain Atty. Tan is quite familiar with the American case law roots of the “void for vagueness” doctrine *outside* of facial challenges in free speech cases. To casually lump the void-for-vagueness doctrine with other doctrines narrowly tailored for free speech is quite a stumper – especially in line with the case law cited plainly in the Leonen dissent itself.

~ ~ ~

Now, I get that Atty. Tan is hard-pressed for column space, and is trying to see things from a different angle. That is laudable. In fact, I agree with his conclusion: that a key topic for further discussion is the “all or nothing” approach taken by the main Supreme Court opinion. However, was it truly necessary to attempt to downplay the Leonen dissent for the purpose of bring this point to the attention of the reader?

What’s more, and as to the second reason why I found that “50%” statement amusing, is that in dismissing the Leonen dissent as having no legal basis, Atty. Tan was giving argument after argument that either miss the legal basis of the Leonen dissent or themselves lacked legal basis.

Glaringly, the “50%=sufficient” rule has no basis in law or jurisprudence. Even assuming that this is a poor translation of the Del Castillo ponencia, “probable cause” isn’t even a “50%” threshold – as evidenciary rules go, that is more appropriately ascribed to the preponderance of evidence threshold. Probable cause is even lower than that.

The argument that it is the Supreme Court’s job to delineate the scope of martial law, and not the job of the executive that declares such, has no basis in law or jurisprudence.

The argument that the choice of declaring martial law rather than exercising calling-out powers is exclusively political misses the legal point – that a declaration of martial law is void if there is no sufficient factual basis to support it. That is a legal – in fact a Constitutional – point, not a political point. Atty. Tan’s counterargument does not meet Justice Leonen’s argument on its legal basis.

The line “Even if (Justice Leonen) is right, we elected Mr. Duterte, not him” is not only devoid of legal basis, it strikes me as a dangerous assertion, that somehow the decisions of an elected official are not subject to the scrutiny of the Supreme Court. Which of course contradicts the provisions of Sec. 1 of Article VIII of our Constitution on the scope of judicial review, as well as established case law on the matter.

Everywhere else, Atty. Tan either misstates Justice Leonen’s arguments or omits the legal bases and merely states the proposition as something Justice Leonen “wants.” Hardly a critique that is based on law.

~ ~ ~

To be fair, a stringent takedown of Justice Leonen’s dissent isn’t really Atty. Tan’s focal point – his real point is to bring our attention to the “all or nothing” rule just laid down. But surely, Atty. Tan could have simply gone straight to the point and discussed that in far more detail than he did.

Instead, he digressed, said some stuff, and fell into the very trap he claims Justice Leonen has fallen into.

So here we are.

If Justice Leonen’s dissent is getting a lot more attention that it may deserve, it could be because Justice Leonen speaks of certain facts and truths that are not reflected in the other opinions, much less the main opinion.

It may do Atty. Tan well to ponder this over, rather than shove it aside and insist on his own paradigm.

Image sourced from the Inquirer website: http://newsinfo.inquirer.net/821172/sc-justice-takes-to-twitter-blasts-current-events
All rights to the image belong to the owner, I do not own it.



2 responses to “Episode 40: Justice Leonen’s fact-riddled, law-based dissent

  1. “Atty. Tan missed the part about how Leonen discusses and establishes, at length, the fact that the Maute group is a terrorist group not committing rebellion. That being the case, there is no factual basis from which to declare martial law, one of the two key precedents being absent. This is most certainly a legal point.”

    By this, you are probably referring to the passage:

    “In its broader sense, rebellion falls under terrorism because of its
    resort to violence, which in tum creates widespread fear and panic, to attain its goals of overthrowing the government. However, not all acts of terrorism can qualify as rebellion. Certainly, the acts of terrorism committed by the Maute Group and their allies, after the attempted service of warrants of arrests against their leaders and the disruption of their plans while trying to escape, is not rebellion in the context of Article 134 of the Revised Penal Code. It is certainly not the kind of rebellion that warrants martial law.”

    I hate to break it to you, but this isn’t a legal point. This is factual point and Leonen is merely arguing on the basis of facts as he sees them.

    Leonen’s legal point cannot be argued against. He acknowledges that someone can both be a “terrorist” and a rebel at the same time. Rebellion is one of the predicate offenses of the crime of terrorism (sec. 3, RA 9372). However, it is not the legal point that is in contention here, it is the application of facts. In other words, Tan is right, Leonen did go out of his way to nitpick and to second-guess the President’s intel, and this is not something a Justice of the SC should do, even as previous SC decisions have deferred to the intel gathering capabilities of the president. Heck Leonen even goes so far as to claim that intel reports were taken out of context (p. 72), honestly the nerve of this guy.

    • Thanks for acknowledging that Justice Leonen “nitpicked” the factual bases of Duterte’s declaration of martial law, in line with the Constitutional mandate of the Supreme Court to review the very same in the event a martial law declaration is challenged before the Court. 😉

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