With this column, I begin a series on the legal issues surrounding President Rodrigo Duterte’s Proclamation No. 216 where he declared martial law throughout the Philippines. In the proclamation, he cited as rationale for the declaration the events of Marawi City on the week of May 22, 2017 when hostilities started broke out between the Armed Forces of the Philippines and a band of fighters coming from the Maute clan, Abu Sayyaf, and other groups.
The 1987 Constitution was drafted with the Philippine experience of martial law under President Ferdinand Marcos still fresh in the mind of the Constitutional Commission (Concom) members and the public. In fact, some argued then that the President should not be given the power anymore to declare martial law. After all, we have just seen then how that power was abused and how it was enabled a dictatorship that lasted for 14 years. In spite of these misgivings, the ConCom included in the Constitution the power of the President to declare martial law. But such power was severely curtailed and safeguards were instituted to ensure that the Marcos experience will not be repeated.
These constitutional limitations on the martial law power would have been tested for the first time in December 2009, the first time the martial law powers of the 1987 Constitution was exercised. President Gloria Macapagal Arroyo had declared martial law in the province of Maguindanao in the aftermath of the Ampatuan massacre. In that case, it was argued that the military was needed to seize control of the civilian government in the province which was controlled by the Ampatuan family whose patriarch and members were accused of carrying out the massacre of 57 persons from a rival and political family and from media.
Immediately after the Maguindanao declaration, Congress convened a joint session and prepared to vote on revoking or affirming the president’s decision. But this was preempted by the lifting of martial law, less than two weeks after it was imposed. Likewise, the petitions filed before the Supreme Court were later dismissed as moot and academic, although under that case of Fortun vs. Arroyo, the Court said that congressional review was automatic and judicial review was mandatory. In that case, Justice Carpio wisely observed that the Court should have taken the opportunity to lay down guidance on martial law so that future Presidents would be guided.
Today, there are now two sets of petitions before the Supreme Court; one on the validity of the declaration, the other on whether or not Congress should convene to review the declaration of martial law and to revoke it if there is a majority for that option. In both cases, the heart of martial law—what it is not and what it is—are at issue. Hopefully, this time the Court will establish good precedent on the legal issues at hand. Our institutions and citizens need clarity and assurance about martial law. We need to know that it will work to defeat the problem of terrorism. We need to be comforted that there will be no abuses and our freedoms will not be taken again from us.
Under the 1987 Constitution, martial law can be declared when two conditions concur First, there must be actual case of invasion or rebellion; (2) such declaration is required by public safety. Invasion, as defined in public international law, is an act of aggression committed by one state against another. Thus, even if there might be foreign terrorists fighting in Marawi City, that cannot be considered invasion. However, there is a strong case for the acts of the Maute group in Marawi to be considered actual rebellion given the purpose of those acts.
It does not matter how the hostilities actually begun so long as there was this intent to remove, through armed means, this iconic city in Lanao del Sur from the Philippines to make it a province of the Islamic State of Iraq and the Levant (ISIL, also known as ISIS). It seems also that there is no question that public safety was/is seriously threatened in Marawi City, justifying the declaration of martial law. In my view, the argument that there was technically no rebellion in Marawi does not hold water. On a policy level, whether martial law is the best option rather than just the sending out of the armed forces is of course something that can be debated.
The coverage of martial law is a big issue in the first petition on the validity of martial law, filed by several Representatives and individuals led by Congressman Edcel Lagman. There is nothing in Proclamation No. 216 and in Duterte’s report to Congress that establish the two conditions required by the Constitution to justify a martial law declaration: (1) actual rebellion, (2) that created serious threat to public safety that justify martial law.
From a procedural point of view, within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President is mandated to submit a report in person or in writing to the Congress. He has done that. This was supposed to be followed by both Houses of Congress then convening jointly and if it so desired, by a vote of at least a majority of all its Members in regular or special session, revoke such proclamation or suspension, which revocation shall not be set aside by the President. Unfortunately, for reasons that is difficult to understand, the leaders of the Senate and the House of Representative have refused to convene, abdicating their constitutional duty. This issue is also now before the Supreme Court through a petition filed by a group of lawyers and individuals led by former Solicitor General Florin Hilbay.
As for the Supreme Court, the Constitution grants it the power to 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. The Court has been given a deadline of 30 days from the filing of the petition to promulgate its decision.
Finally, the 1987 Constitution is clear what martial law does not do: it does not suspend the Constitution, especially the Bill of Rights. It does not allow military court to try civilians (as was done during the Marcos era) except when civilian courts no longer can function; it does not abolish the national and local legislatures. Civilian authority, at the national and local levels (except if the latter collapses), will always reign supreme. What martial law is —whether in fact, as I suspect and has now been affirmed by the Solicitor General and several Justices, it is just an amplified version of the calling out of the armed forces power of the President—will hopefully be defined by the Court in their forthcoming decision.
In the next few columns, I will summarize what we are hearing in the oral arguments in both petitions. And when the decision for the petitions on validity come out in early July, I will of course analyze that to see how a living constitution wrestles with the legal questions that accompanies the declaration of martial law.
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