Extending martial law

As expected, President Rodrigo Duterte asked Congress to extend martial law in Mindanao. His congressional allies said yesterday that he asked for 60 more days, but Presidential Spokesperson Ernesto Abella asserted that the President wants martial law in effect until the end of 2017.

This raises an important question that also exposes a lacuna in the 1987 Constitution. As one safeguard against abuse, the Constitution states in Section 18, Article 8 that martial law and the suspension of the privilege of the writ of habeas corpus cannot last beyond 60 days.

But the same section empowers legislators to extend that declaration or suspension “for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.”

This is the first time the proviso will be tested since this Constitution took effect, because when then President Gloria Macapagal Arroyo declared martial law in Maguindanao in 2009, her declaration lasted less than two weeks and had already ended by the time the controversy reached the Supreme Court.

With the privations of martial law under Ferdinand Marcos Sr. still fresh in people’s minds, those who framed the 1987 Constitution placed several defenses against abuse in case martial law was required.

But these defenses are only as strong as the institutions that are supposed to enforce them. Most lawmakers can choose what’s politically expedient. The Court, always the most passive among government’s branches, has to wait for the controversy to be laid at its doorstep.

And then there are the silences and ambiguities of some provisions of the Constitution itself: like the ban on political dynasties, the extent of a martial law declaration may be in the basic law, but leaves a lot to interpretation, whether by the Court or Congress.

The 1987 Constitution states only two grounds that will justify a declaration of martial law. But in its ruling earlier this month, the Court showed that actual “invasion or rebellion” are terms more malleable than they may appear.

Associate Justice Teresita Leonardo-De Castro, in her opinion, explained that modern-day rebellion goes beyond armed clashes. Her view is that the President ought to be given the discretion to fight rebellion’s operations such as propaganda, recruitment, fund-raising, and intelligence-gathering, although these may take place “far from the battle fronts.” She was one of 11 justices who voted to dismiss the petitions to lift Proclamation 216, and to keep martial law in effect in all of Mindanao.

With martial law likely to be extended until the end of the year, what assurance do we have as citizens that safeguards against abuse will be in effect? Who shall we trust to enforce them?