Because of the rampant lawlessness in Mindanao, in Marawi City in particular, President Rodrigo Duterte last week issued Proclamation No. 216 which placed Mindanao under martial law.
Under Section 18, Article VII of the Constitution, the president has the power to place the entire country, or any part of it, under martial law, when there is an invasion of the Philippines, or when there is rebellion taking place. The Constitution also explicitly provides that when martial law is resorted to, public safety must demand it.
The mere mention of the phrase “martial law” triggers fear among many because of past experiences, real or imagined, during the martial law administration of President Ferdinand Marcos.
Nonetheless, it must be emphasized that the state of martial law contemplated under the current Constitution is a diluted version of martial law under the 1935 and 1973 charters. For example, martial law in the past meant the automatic suspension of the privilege of the writ of habeas corpus, Moreover, the factual basis for the proclamation of martial law was considered beyond the Supreme Court to look into. In fact, martial law could remain in force for an indefinite period.
All that changed under the 1987 Constitution, the present charter. The 1987 Constitution is “reactionary” because, unlike in earlier charters, its “commander-in-chief clause,” or the provisions on martial law and habeas corpus, recites many details. The clause itself consists of six paragraphs, and its first paragraph is one of the longest in the entire charter.
Anyway, under the 1987 Constitution, the proclamation of martial law may be revoked by Congress or reviewed by the Supreme Court. The revocation by Congress and the review by the Supreme Court, however, are not mandated by the Constitution. They are discretionary powers, because the charter uses the modal “may,” which denotes an option, as opposed to the modal “shall,” which denotes a duty.
In addition, martial law under the 1987 Constitution has a duration of no more than 60 days, and any extension of martial law will need the approval of Congress.
Evidently, if Congress refuses to revoke Proclamation No. 216, that is the prerogative of Congress, and the Supreme Court cannot compel Congress to perform a purely discretionary act. Likewise, the separation of powers doctrine disallows the Supreme Court, in the absence of a clear constitutional mandate, from ordering a co-equal branch of the government to perform an act.
A perfect illustration is provided by the constitutional ban against political dynasties. Although the Constitution mandates that the State shall prohibit political dynasties, it left it to Congress to first provide a legislative definition of the term. Unfortunately, vested interests in Congress, particularly those of well-entrenched political families, have rendered the anti-political dynasty provision in the charter inutile. Attempts to convince the Supreme Court to compel Congress to define the term “political dynasties” have been unsuccessful
Congressional review of Proclamation No. 216 has become moot because just a few days ago, Congress expressed its support for the proclamation. That should not be a cause for immediate alarm or anxiety because, as pointed out earlier, martial law has a duration of no more than 60 days, and any extension of martial law requires the blessings of Congress.
Surprisingly, the news media recently reported that two ex-officials of the past administration have urged their fellow lawyers to oppose Proclamation No. 216 through both the congressional process and the judicial alternative. They likened opposition to martial law with opposition to dictatorship.
Equating martial law under Proclamation No. 216 to dictatorship is unfounded.
In the first place, martial law is not synonymous to dictatorship because, as discussed above, martial law under the 1987 Constitution is for a limited duration, and fundamental freedoms like resort to the writ of habeas corpus remain in force during the emergency. The charter further provides that civilians arrested in the wake of martial law cannot be tried by military tribunals, and that civilian authority remains supreme over military authority at all times.
Secondly, how can the proclamation of martial law be deemed a dictatorial act when it is explicitly allowed by the 1987 Constitution, which is supposed to be an anti-dictatorship charter? Pro-Aquino minions opposing Proclamation No. 216 should take note that the 1987 Constitution was written by appointees of President Corazon Cojuangco Aquino.
As for the review by the Supreme Court of the factual basis of the proclamation of martial law, the power is conceded. How that power will be exercised, however, is another matter.
How will the justices of the Supreme Court, who are all civilians and who have never been in active military duty, be in a position to ascertain with accuracy and meticulous exactitude if there is “factual” basis for Proclamation No. 216?
In the end, the justices will have to rely on information and data provided by the military establishment—the government agency that knows what is really happening in Mindanao at the moment.
If the justices disagree with the information and data provided to them, they will need very good reasons for supplanting the official findings of the military establishment—which under the rules on evidence carry a presumption of regularity—and substituting their own judgment for that made by the military experts. That will be a very hard task, indeed.
That is why the jurisprudence on the “commander-in-chief clause” of the Constitution provides that when the judiciary is called upon to review the exercise of presidential power under the said clause, the standard to be observed is not whether the president acted correctly in proclaiming martial law (which the courts cannot ascertain with precision), but whether the president acted arbitrarily in doing so (which the courts are capable of doing).
With what happened in Mindanao last week, Proclamation No. 216 will pass the test of judicial scrutiny.