Martial Law

Barely two decades after Marcos and before the dust from that regime have had a chance to settle, martial law has been declared again (in Maguindanao).  If the official government reports are to be believed, the declaration is necessary to prevent the spread of a rebellion led by former vassals of the current potentate who have allegedly decided that they would rise up in arms right after they had massacred 57 innocent civilians.

While the murder of women and children is certainly reprehensible business and must be dealt with not only with decisiveness but even with some measure of violence, it hardly seems that martial law is necessary or even germane to the current situation.  At least from a legal perspective, it’s like removing a particularly troublesome hangnail with an exceptionally large battle-axe.

Given the country’s previous experience with military rule, the present Constitution takes great pains to rein in the exercise of war powers by the President. Article VII, Section  18 of the 1987 Constitution, which provides for the President’s Commander-in-Chief powers, states:

“Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

“The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

“The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

“A state of 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 civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

“The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

“During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

Under the foregoing, martial law is grounded on the necessity of using military force to maintain public order and is based on two things: (a) the existence of a state of rebellion and (b) a finding that public safety requires it. It is the most extreme measure in a range of graduated responses to an armed uprising.  As such, it can be argued that martial law can only be justified if the level of disorder is of such a degree that merely calling out the armed forces (the least intrusive of the responses) and  the suspension of the privilege of the writ of habeas corpus are both insufficient.

On 6 December 2009, Executive Secretary  Ermita, on orders of President Arroyo, submitted a report to Congress informing Legislature of the declaration of martial law over Maguindanao (see  President’s Report to the Senate on Proclamation 1959). This precedes an automatic review by Congress of the bases for the proclamation .  The factual bases of martial law may also be questioned before the Supreme Court in a proper petition.

Although the 21 page submission is not shy to provide the gruesome details of the massacre, it does not contain much by way of inventorying the overt acts by which the finding of a state of rebellion may be justified. Likewise, while the report closes by saying that “public safety still requires the implementation of martial law,” it makes no serious attempt to provide factual justification for such a conclusion.   Consequently, I do not think that the report was able to amply explain why the President needs to declare martial law over and above simply calling out the armed forces and suspending the privilege of the writ of habeas corpus.

However, the more troubling circumstance is this: given the country’s overall dissatisfaction with the Arroyo presidency and considering a general repugnance to martial law, the current post-Marcos proclamation was obviously purchased with a great deal of political coin. The fact that President Arroyo was  willing to pay the price for a watered down version of martial law hints at a consideration that has yet to be fully disclosed.

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