The Clutches of Martial Law

It has been more than a month or so since my last entry in this site which, owing to the nature of my chosen endeavor I have no choice but to overhaul my priorities all over again. I hate to admit but for the past few months I was largely preoccupied with personal cobwebs or what I call the “viruses of the mind” which prevented me from doing what I love to do best. And so first things first, deliberately, I expunge it out of my system-good riddance as they say! Anyway, since then so many critical issues, be it legal or political, have been the center stage of coffee table and classroom discussions. I must say that during my “self-imposed interregnum”, every time an issue pops up, I always felt the sudden itch to express my ideas and write something about it. But as soon as I sat down and put my hands on the computer, the piles of documents in my bedroom seemed to say that earning a living should be on the top of my list. In simple terms, blogging then should step aside even on Sundays. As trite as it may seem, but for every rule there is always an exception. Today, I will break my fast and avail myself of the much needed excuse from my daily routine. Unfortunately the pile of documents and reading materials will have to wait for an hour or two otherwise I would be in a limbo by tomorrow. Obviously, the declaration of martial law in some parts of Maguindanao requires more than a succinct “shoutout” in my facebook account. This is where I suppose, the medium of blogging finds superiority over social networking sites in terms of meaningful and well-informed opinion. Clearly it entails a lengthy and incisive discussion on the issue for it concerns more that anything else, the curtailment of cherished liberties so protected by the constitution. Not to be presumptuous or anything, but constitutional and political issues are among the areas which I find very fascinating because it touches the very core of what it is like to be a citizen of a nation. Let us now educate ourselves on the constitutional underpinnings of the martial law declaration following the gruesome massacre in Maguindanao.

Not all people can readily understand what the essence of martial law is nor its ramifications and safeguards under the constitution. Chances are, people from different walks of life deemed martial law as synonymous to the name of President Ferdinand Marcos. In fact as evidenced of a “hangover” even lawyers, the senior ones in particular, understood the concept of martial law in line with rules under the 1973 (Marcos] Constitution. Although the traditional concepts under the previous constitutions are one and the same, the present rules under the 1987 Constitution have been improved and crafted to strike a proper balance between two competing spheres, state power and individual rights. (i.e. Can the President suspend the writ of habeas corpus without the declaration of martial law? Or vice versa. More on the checks and balances later.) Luckily as a law student, I came to know martial law as one of the extraordinary powers vested in the Commander-in-chief of the armed forces, in which case the President, to quell actual invasion or rebellion “when the public safety requires it.” But what is martial law really? What is its nature and bases on the whole constitutional scheme? In my blog post entitled, The Power that lies in the Little Girl’s Hands, I made the following observation,” Martial law is essentially founded upon the police power of the state. Joking aside, what is being referred to here is not the power vested with the police force or the PNP. Obviously, this has something to do with one of the inherent powers of the state. To be clear, the textual definition of police power is that, “power vested in the legislature by the constitution to make and establish all manner of wholesome and reasonable laws…as they shall be the judge to be for the good and welfare of the state and of the subjects of the same.” The idea of martial law is to protect “public safety” against invasion or rebellion which in essence, is one of the concerns of police power. For these reasons, though martial law is often viewed as a monstrous power to be avoided, it likewise has its noble and necessary objectives to preserve law and order. Having learned from the lessons of history, the framers thought it wise to retain this power under the 1987 Constitution, but not without expressed restrictions and safeguards unlike the previous constitutions.

The salient provision on the “Commander-chief-powers” of the President is excessively long. Without a doubt, the new commander-in-chief provision is one of the outstanding features of the 1987 Constitution. Under said provision, while the original authority to declare martial law rest on the Executive branch, there is however an explicit command for checks and balances to achieve the desired result. As will be seen later, the Congress and the Supreme Court have significant roles to play when the nation is under the clutches of martial rule.

The power to declare martial law flows from the “Commander-in-chief” powers of the president. By virtue of Section 18 of Article VII of the 1987 Constitution, the president is bestowed with a sequence of graduated powers from the most to the least benign. The most benign power refers to the “Calling-out power” of the President. Thus, “whenever it becomes necessary” he (President) may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. But what will happen if in the exercise of the “Calling-out power” the President fails to suppress the existence of lawless violence or prevent an impending invasion or rebellion? Faced with this kind of situation, the President can now resort to the least benign powers in his commander-in-chief arsenal to quell any actual invasion or rebellion against the state.

These two extraordinary powers are; (1) the power to suspend the privilege of the writ of habeas corpus or (2) place the entire country or any part thereof under martial law. Unlike the “calling-out power,” the grounds for the proclamation of martial law are at best limited. Thus, the constitution is unequivocal when it states that, there must be an actual invasion or rebellion and “when the public safety requires it.” The initial determination whether there is an actual invasion or rebellion will have to be decided by the President as the Commander-in-chief. But the story does not end there. After the proclamation, the President will now have to persuade Congress on the soundness of his actions. At this point, the 1987 Constitution clearly delineates the participation of Congress to check on the possible abuses of power by the chief executive when acting as Commander-in-chief.

As mentioned earlier, the new commander-in-chief provision under the 1987 Constitution is quite long. Nonetheless let us capture the gist on the extent of the President’s military powers, the martial law provision in particular.

After the initial determination on the existence of an actual invasion or rebellion, when the public safety requires it, the President can now place the country or any part thereof under martial law. The duration of such proclamation shall not exceed sixty (60) days otherwise it shall be automatically lifted. Within forty-eight (48) hours following said proclamation, the President is obligated to submit a report, whether in person or in writing, to the Congress. If not in session, owing to the urgency of the situation, Congress must convene within 24 hours without need of a call. And in that regular or special session, Congress by a majority vote of all its members and voting jointly, may either revoke said proclamation or upon the initiative of the President, extend the period of the proclamation. By this time, it is Congress who will determine the duration of the proclamation depending on the persistence of the invasion or rebellion and when public safety calls for such extension.

From the wordings of the 1987 Constitution you can easily discern the intent of the framers when they drafted the Commander-in-chief provision-a recognition of the separation of powers principle. Both the President and Congress must agree to a certain extent that there is indeed a factual basis for the declaration of martial law. To which, as may be seen later, the Supreme Court in the exercise of judicial review can validly inquire and if found wanting, it will not hesitate to make the hammer fall and heavily! If you will observe, although the President has the sole power to declare martial law under the constitution, Congress may revoke said proclamation and it cannot be set aside by the President. In the same manner, Congress cannot extend the period of martial law motu propio, the initiative must always come from the President as the Commander-in-chief. In simple parlance, there is an inherent “give and take” relationship between the two co-equal departments of government in order to safeguard the power structure envisioned in the constitution.

Given the above discussion, in the end the buck stops with the Judicial branch mainly, the Supreme Court. Let us examine then the function of the Supreme Court under the new rule.

On historical note, Marcos Supreme Court in the case of Aquino v. Enrile had put an imprimatur on the legitimacy of the Sept. 21 proclamation. That infamous case drastically modified the original scope and effects of martial law as embodied in the 1935 Constitution. Now, all of these are purely of historical and academic value because of the new provisions in the 1987 Constitution abandoning the doctrine laid down in the Aquino case

As the bastion of the rights and liberties of the people, the Supreme Court also has an indispensable role especially in times of national crisis. Par. 3 of Section 18 Article 7 of the 1987 Constitution says, “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 or the extension thereof, and must promulgate its decision thereon within thirty (30) days from its filing.” Before the birth of the 1987 Constitution, the power of the court to review the “determination” or “judgment” of the President as Commander-in-chief was a constitutional “no-no”-a clear violation of the time-honored principle of separation of powers. It is often viewed as a forbidden territory of the courts. Now this is no longer the rule. Although traditionally a “political question,” the 1987 Constitution has clearly abandoned this rule in favor of a much libertarian approach by making it a justiciable controversy. Hence, any citizen can now question the sufficiency of the factual basis of the martial law proclamation.

It should be borne in mind that mere proclamation of martial law does not automatically suspend the privilege of the writ of habeas corpus much less the operation of the constitution. During the state of martial law, civil courts and legislative bodies shall remain open. In line with this, military courts and agencies are not conferred jurisdiction over civilians where the civil courts are functioning. The suspension of the privilege of the writ of habeas corpus shall only apply to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. Remarkably, any person arrested for such offenses must be judicially charged within three (3) days otherwise he shall be released.

Tomorrow we will be expecting petitions filed before the Supreme Court questioning the legality of GMA’s martial law declaration in Maguindanao. I surmise that the petitions will challenge the factual bases for the imposition. Simply put, does the situation in Maguindanao constitute “invasion” or “rebellion” which will warrant the suspension of the privilege of the writ of habeas corpus and the imposition of martial law? From the looks of it the situation in Maguindanao could only fall within the definition of “lawless violence,” which is not among the situations contemplated for declaring martial law under the Constitution. Note that the martial law provision clearly states, “In case of invasion, or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.” As explained above, the President is armed with a sequence of graduated powers from his Commander-in-chief arsenal. Although initially the President makes the determination as to the existence of lawless violence, invasion or rebellion, the Supreme Court in proper cases can invalidate the imposition. Fingers crossed for now!