No highs, all lows with martial law
President Duterte could have brought in the military in Marawi, restrict travel, and impose curfews without declaring martial law.
As everybody has given their two pesos worth on the matter, I might as well pitch in. I’ve made this argument for a long time and the thing actually seemed quite evident (albeit puzzling) even during law school (which was in the last century). But it was the putting into practice of it, however, that confirmed our armchair analysis.
The point is that under Art. VII. 8 of the Constitution, the President could have brought in the military anyway without declaring martial law. Being the “Commander-in-Chief,” he could “call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.”
This interpretation is bolstered by the fact that under existing laws on telecommunication, utilities, media, and other such businesses or activities “affected with public interest,” the President could take over them under the justification of a “national emergency, when the public interest so requires.” It says so right in Article XII.17. The State may even, in the interest of “national welfare or defense, establish and operate vital industries (Article XII.18).”
The President actually could even restrict travel, including imposing curfews, in times of “national security, public safety, or public health, as may be provided by law (Article III.6).”
Indeed, President Duterte could have done all those things without declaring martial law (with all its procedural requirements and historical baggage) because those are powers already expressly given to him under the Constitution and existing legislation.
And martial law comes with one more unintended baggage: the need to admit that the government has lost control or is facing loss of control “over the Philippines or any part thereof.”
The present Constitution, it has to be remembered, was made during President Cory Aquino’s administration and drafted by her handpicked appointees. One can hardly criticize Duterte for merely implementing what’s there.
It’s arguably the overreaction contained in the Constitution against the Marcos years that has made a declaration of martial law practically pointless.
Its current reincarnation doesn’t really add anything to the president’s commander-in-chief powers.
Contrary to what many think, declaring martial law doesn’t automatically suspend the writ of habeas corpus. And if such was indeed suspended, the Constitution ridiculously limits it only to those “judicially charged for rebellion or offenses inherent in or directly connected with invasion” and those persons must be “judicially charged within three days, otherwise he shall be released.”
But the point of suspending the writ is precisely to give ample time for the government, while simultaneously fighting off an invasion or rebellion, to gather information from people who
may be directly or indirectly participating, or even not at all, in such invasion or rebellion.
Because if they need to be charged judicially first, then what’s the point of suspending the writ? This is just plain common sense.
In fact, our Constitution’s version of martial law is almost a parody, as it practically does not have an effect even on “normal” law.
Article VII. 18 declares that martial law “does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over where civil courts are able to function.” The last clause is actually nonsensical and redundant.
Martial law in the US setting (from which our constitutional system is patterned) serves a specific purpose because the US president is prohibited from deploying the military within US territory, relying instead on militias (i.e., National Guard, Naval Militia, and Reserve Militia) that are substantially under the control of state governments. This has to do with the principles of state vis- à-vis federal power, as well as civilian control over the military.
It’s only under very specific conditions can martial law be invoked, allowing the federal government to override state government jurisdiction, blankly suspend habeas corpus, and bring in the military.
That logic is not found in the present Constitution. This fact was famously displayed by President Estrada when he efficiently decimated the MILF, capturing Camp Abubakar and several other MILF camps, all without declaring martial law.
Nevertheless, since martial law has been declared, what role should the Supreme Court then have?
Frankly (and with all due respect), Article VII.18 should be read conservatively, the Supreme Court restraining its “grave abuse of discretion” investigations on whether the procedural requirements for martial law ( i. e., the president submitting a report to Congress within 48 hours; Congress “voting jointly, by a vote of at least a majority of all its Members in regular or special session” whether to revoke the martial law declaration or not) have been met.
In this, Congress clearly did not do its job. But then again, what else is new?
Verily, backseat driving is oftentimes unhelpful. There’s a time and place for everything. And with regard to ongoing military and security operations, it’s best that deference be made to the judgment and discretion of the people’s duly elected chief executive and our brave armed forces.