Musings on the future of martial law

AFTER the Supreme Court’s martial law ruling, the next interesting focus of discussion on martial law is its future configuration in a new constitution. For whatever they may be worth, I am setting down some of my thoughts on the subject as I believe that we should modify the current provision and its interpretation in favor of terms more appropriate to our needs and national experience.

As I have observed in a previous column, I find the current martial law provision to be narrow because of its anti-Marcos character and focus. President Marcos and his administration appear to be the unwritten measuring standard against which martial law is to be understood, or better still, the ghosts that haunt our present-day concept of martial law.

From another perspective, the fixation on President Marcos appears to be intended as a historical basis for comparison, but martial law records are unfortunately too uncertain to be truly useful. The events and grounds that led to the suspension of the writ of habeas corpus in 1971 and the declaration of martial law in 1972 have not been fully ascertained up to now. All we have are the victors’ tale of what Marcos and his losing crowd allegedly did. In the way of historical writings, future historians may yet come up with findings completely different from what prevailing historical literature say. Already, the older generation of leftists are confirming that they indeed bombed the Liberal Party’s Plaza Miranda meeting in 1971.

Completely separate from the martial law declaration issue are the acts that President Marcos and his government undertook in the name of martial law. A tempting question to ask in this regard if history and the Constitution shall completely demonize President Marcos is – how should we explain to present and future generations the presidential decrees that he issued pursuant to his martial law powers, some of which are still existing, effective, and useful to the country?

These considerations necessarily raise the question: Should President Marcos and his martial law declaration still be the focus of our future constitutional provision on martial law and still serve as justification for its limitation? Or, should we take a broader view and not be limited by this fixation on President Marcos?

While I believe that the country should never forget the past lessons of history, these lessons should not hold us captive. In particular, I am concerned about the way a new constitution will provide for martial law because it is a measure critical to the survival of the country. We will be extremely shortsighted if we simply repeat and adopt a provision drafted with one man specifically in mind.

Defensive measures, such as martial law, should primarily address the aggression they seek to repel, and only secondarily consider the defender, in this case the president of the Philippines who has been given the constitutional duty and power to meet the aggression.

A good and exceptional provision in the current Constitution is the authority to call out the armed forces even for internal peace and order concerns that fall within the description of “lawless violence.” The current provision is appropriate as its concerns are essentially peace and order matters that are for the police to resolve. The present provision thus gives the President enough flexibility to calibrate his response to violence within the country and to go to the extent of calling the armed forces to intervene when the need arises.

Strictly limiting martial law and habeas corpus powers to “invasion or rebellion” as the 1987 Constitution does, and for the court to strictly interpret these terms to mean “actual” attacks in the course of invasion or rebellion, are myopic approaches that do not consider the defensive nature of martial law and the suspension of the writ of habeas corpus.

The defense of our country is not only necessary when widespread aggressive attacks are already taking place; defense should be made, and indeed measures are best taken, even before actual hostilities begin. Measures should prudently be preventive in character and should start when the imminence of aggression becomes apparent.

The president, of course, is responsible for the country’s defense as the commander-in-chief of the armed forces; as such, his is the authority and the prerogative to declare when rebellion or invasion is “imminent” so that appropriate defensive measures can be taken. Out of extreme caution or perhaps fear that the president would abuse this standard (which the framers reflected in the 1935 Constitution), the present Constitution deleted the “imminence” aspect in justifying the declaration of martial law.

Should not the framers of the new constitution re-examine the deletion that the 1987 constitutional framers made and effect a restoration of the “imminence” standard? Closely analyzed, the deletion is a move that favors the invader and the rebel because it ties the hand of the president, both as to the time he can act and the manner and extent of the action that he can take.

Martial law, at its core, is simply an emergency power. Emergencies, on the other hand, are not limited to invasion or rebellion. Widespread terrorism that is international in character or that carries international support partakes of the nature of rebellion although it may not fall under the strict definition of this term. Whichever way viewed, it is an attack on the security of the state and its citizens.

Under the court’s current interpretation, terrorism of this kind would not justify the declaration of martial law, yet it is a situation that may best be handled by a declaration. Cannot the Supreme Court, in the course of constitutional interpretation under a “living constitution” mode, fit widespread terrorism into the proper classification to which it really belongs – as an attack against the state?

Aside from terrorism, major natural disasters are now part of periodic Philippine occurrences that bring to the fore public safety (not the security of the state) as the foremost consideration. Should a new constitution provide for the exercisable power for these emergencies to remove all doubts that they can be fully addressed with all the powers that the state can muster?

Aside from its classification as an emergency power, martial law can viewed as to its purpose. When actual aggression exists and the military is defending the country (or parts of it), the military is engaged in two distinctive acts – to fight, defeat, or expel the enemy, and to control the areas where fighting is taking place or may take place as a supporting measure to ensure the success of its defensive actions and to protect the safety of the public.

In areas of actual hostilities, governance cannot but be by military rule, but the president should be able to place under martial law the areas necessary to ensure the success of the military’s defense or prevent the further spread of the hostilities, as well as the areas where public safety requires military control.

In other words, a new constitution should provide a wider and more easily calibrated array of powers that the president, as commander-in-chief, can choose from in order to address the different emergencies that may confront the nation. The range of this array, at the very least, should be recognized in a future constitution to remove all doubts that the president can choose from among them in the exercise of his discretion; proper standards can be laid down to control this discretion. A provision for the exercise of “emergency powers,” for example, may be made to recognize a mid-range set of powers where a mix of military and civilian control would be called for under defined situations. This shall be particularly be useful in addressing major disaster incidents such as the Yolanda typhoon or major earthquakes affecting metropolitan areas when public order, public safety, public security, and public health are the top priority concerns.

For lack of space, I shall set down my thoughts on the limitations on the emergency powers of the President in a future column.