Worse than martial law

Widespread is the anxiety over the possible imposition of martial law, stoked no doubt by mixed messages from President Duterte and conflicting “clarifications” from his Cabinet members.

Emergency measure. At one time, the President remonstrated, “Would you rather that I declare martial law?” Yet later on, he complained of martial law’s dependency on Congress and the Supreme Court. He wanted martial law in which “only one person should be in control,” without the constitutional checks that balance this awesome executive power.

I think that, constitutionally understood and implemented, martial law need not be feared. It is really a temporary emergency measure to enable the President to meet contingencies that cannot be adequately addressed by normal presidential prerogatives.

Unfortunately, however, Ferdinand Marcos misused martial law to perpetuate himself in power, to loot the treasury, and to deprive our people of their basic rights to life, liberty and property without due process.

He invented excuses to proclaim it, crafted “constitutional authoritarianism” to justify it, prolonged it beyond its temporal nature, and abused it to crush his enemies, keep the military in an iron grip, eliminate the old oligarchy, and establish a new society of cronies and dynasties.

Constitutional antidotes. To prevent a repetition of these excesses, the 1987 Constitution limited the grounds for proclaiming martial law to only two: “invasion or rebellion, when the public safety requires it,” and restricted its duration to 60 days, extendible “for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.”

The new Constitution commands the President, within 48 hours from the proclamation of martial law, to “submit a report in person or in writing to the Congress” which, in turn, could revoke the proclamation, “voting jointly, by a vote of at least a majority of all its Members...”

It also mandates the Supreme Court to “review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law… and [to] promulgate its decision thereon within thirty days from its filing.” Thus, the Court could nullify its proclamation, duration and/or extension.

Moreover, its scope had been narrowed; it “does not suspend the … Constitution, nor supplant the functioning of the civil courts or the legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians …, nor automatically suspend the privilege of the writ” of habeas corpus. Neither does it authorize illegal arrest and indefinite detention.

Clearly then, if all these constitutional safeguards are faithfully followed, and Congress and the Supreme Court discharge their mandates prudently and independently, we need not fear martial law.

Moreover, I dare say that we also need not worry NOW about the proposed defanging of Congress and the Supreme Court. These proposals will still have to be debated in the public sphere, approved by the proposed constituent assembly, and ratified by the people in a nationwide plebiscite. The process would take a few years of democratic debate and political struggle.

Suspension of Charter. What I believe is of immediate concern is not martial law under the Constitution but the suspension, or worse, the abolition of the Constitution. Once the Constitution is suspended or abolished, so would Congress, the Supreme Court and the safeguards be.

In such a scenario, only the patriotism and good health of the President, the fidelity of the military and the police, and the eternal vigilance of our people would mitigate excesses and misrule.

This happened in 1986 when Cory Aquino set aside the 1973 Constitution and set up a revolutionary government. But unlike Mr. Duterte, she ascended the presidency via a peaceful revolution, not via the democratic processes of an existing Charter.

And unlike Marcos, her dictatorship was short (one year) and her ensuing 1987 Constitution cherished basic rights and enshrined benign martial law.