1987, not 1935
When he placed the entire country under martial law on September 21, 1972, then President Ferdinand Marcos invoked his powers under the Constitution. So did President Duterte when he issued Proclamation No. 216 on Tuesday, last week, declaring a state of martial law and suspending the privilege of the writ of habeas corpus in Mindanao. In referencing the constitution, the two presidents were, however, actually talking of two different versions: 1935 and 1987.
Between them, Marcos had greater, if not unlimited, power to declare martial law. The 1935 charter (Sec. 10, par. 2, Art. VII) said the president “may suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law” in case of actual or imminent invasion, insurrection or rebellion, when required by considerations of public safety.
Under this provision, there was no doubt that it was entirely up to the president to determine whether these grounds actually existed. The suspension of the privilege of the writ habeas corpus and, by extension, the declaration of martial law, were a political question to be resolved solely by the president, the Supreme Court said in Garcia-Padilla vs. Enrile.
The 1987 Constitution reversed this doctrine, however, obviously to prevent a recurrence of the abuses committed during Marcos’s martial law regime. The determination of the factual basis for the declaration of martial law or the suspension of the privilege of the writ is no longer a political question that only the president may answer. Congress shares that “tremendous and extraordinary authority” and so does the Supreme Court by way of a judicial review upon petition by any citizen.
It is claimed by some quarters that these changes were an “over-reaction” to the Marcos experience and that they have effectively curtailed the capability of the president to respond to the contingencies enumerated in the constitution and address immediately and effectively the accompanying danger to public safety.
The president is “the most important figure in the country in times of war or other similar emergency,” Justice Isagani Cruz wrote. “In theory he plans all campaigns, establishes all sieges and blockades, directs all marches, fights all battles. His leadership, if bold and decisive, can galvanize people to gallantry, or if vacillating and timorous, can enfeeble them to defeatism and surrender.”
The situation in Marawi demands that kind of leadership--daring and audacious-–and Duterte is raring to provide it. He said so himself, twice in meetings with his soldiers. He will listen only to them, he told the military and the police, not to Congress or the Supreme Court.
Before he assumed office, Duterte took an oath to preserve and defend the Constitution. Unfortunately, he was sworn not under the 1935 but the 1987 version, the one that allows congressional and judicial interference in what used to be a purely executive function.