Justifying martial law

The lawyer in Rodrigo Duterte must realize that while his congressional super majority will surely rubber-stamp his Proclamation 216, justifying martial law before the Supreme Court won’t be a walk in the park.

Under the Constitution, only an invasion or rebellion can justify the declaration of martial law. Officials said among the gunmen slain by the military in Marawi were about six Indonesians, Malaysians and Singaporeans – fans or even possibly card-holding members of the Islamic State.

Six foreigners do not constitute an invasion. What about 28? The military said 28 Malaysians arrived in Mindanao shortly before the siege and are believed to have joined Maute, whose members have been hoisting black ISIS flags wherever they can in Marawi.

Duterte’s report to Congress pointed to an alleged plan by the Maute together with the Abu Sayyaf, under IS-inspired Isnilon Hapilon, to set up a caliphate in Mindanao. A report over the weekend said the Mautes planned to hoist an IS flag over the Marawi City Hall.

Would that qualify as a rebellion? Or an invasion, if the Mautes’ IS financiers in Syria and other foreign supporters decide to set up a base in Mindanao?

The Southeast Asian terror cell Jemaah Islamiyah, responsible for several deadly bombings in Indonesia including the worst, in Bali in 2002, also reportedly hoped to set up a pan-Islamic state that included Mindanao. Indonesian JI bomb maker Fathur Rohman al-Ghozi was sentenced to 17 years for illegal possession of explosives in connection with the 2000 Rizal Day bombings in Metro Manila. But JI has never been classified as a rebel group, even if it worked together with the separatist Moro Islamic Liberation Front.

JI is classified as a terrorist organization, like the Maute and Abu Sayyaf. A collage of the AFP’s most wanted in the Marawi siege describes those in the photos as “terrorists,” not rebels or invaders. The Constitution allows the president to call in the Armed Forces to quell the kind of lawlessness we are now seeing in Marawi City. But does it justify the declaration of martial law?

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If a survey were conducted today, my guess is the martial law declaration would enjoy high public support, as the nation sees what is happening in Marawi.

This is a country that likes tough and swift responses to bad guys who don’t play by any rules. When Duterte says he’ll protect law-abiding citizens but will be harsh on the lowlifes, the typical reaction is: go ahead, finish them off.

There is also the perception, not unfounded, that if the government became a stickler for the niceties of the law, the Maute and Abu Sayyaf would succeed in setting up their caliphate if not in Mindanao, then at least in the autonomous Muslim region.

So people are cheering on government forces in the firefights in Marawi. The Supreme Court may consider this when the inevitable challenge to Proclamation 216 reaches the tribunal.

The common concern at this point is that Duterte might enjoy martial law so much he will keep it longer than necessary, opening it to abuse including its use against political enemies and critics. The prospect of martial law being expanded to Metro Manila is spooking many quarters, even if the capital region has suffered from Islamist terrorist attacks.

Even the Mindanao-wide coverage of Proclamation 216 is being considered overkill particularly by residents of peaceful Mindanao provinces. Flights, supply networks, tourism and businesses have been disrupted. Lanao del Norte is protesting that it is NOT Lanao del Sur, whose capital is Marawi. Iligan City in Lanao del Norte is where many people fleeing Marawi have sought refuge.

The government has explained that martial law was imposed over the entire Mindanao because of the high risk that the Maute violence would spill over. The Abu Sayyaf, after all, was recently confirmed to have plotted kidnappings and terrorist attacks in Bohol and Cebu, far from their usual haunts in the conflict zones of Mindanao.

Still, Duterte the former prosecutor must at least suspect that proving the existence of a Maute-Abu Sayyaf rebellion or invasion before the Supreme Court may be a stretch. So he has warned that he might ignore the SC if it declares Proclamation 216 as unconstitutional.

The President might later dismiss the warning as hyperbole, or something said in the heat of the moment. After all, he once publicly apologized to Chief Justice Ma. Lourdes Sereno for his harsh words, and he can say sorry again.

Or he might think that with the snail’s pace of the justice system, by the time the SC rules with finality on the validity of Proclamation 216, he might have lifted martial law. No need to precipitate a constitutional crisis. Really, Duterte has enough enemies and should stop picking unnecessary fights.

For sure, however, even the President must know that the sooner he lifts martial law, or at least limits its coverage, the better.

People might accept his administration’s argument that pulverizing the Maute and Abu Sayyaf shows a government that is in control and can keep the public safe. Still, a better indication of government control is when there is no need for martial law.

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IN MEMORY OF GREGG ALLMAN: I paused from yesterday’s work to listen to a recording of the Allman Brothers Band live at the Filmore, performing one of my favorite songs from my youth, In Memory of Elizabeth Reed. The last time I listened to the song was ages ago, and the music is just as haunting as when I heard it the first time on dzRJ, when I was a pre-teen in 1972, before Marcos’ martial law regime banned rock ’n’ roll, knocked RJ off the air and seized Jacinto steel (among other companies).

I listened to the song again because band frontman Gregg Allman died of liver cancer at age 69, according to reports yesterday. He and his brother Duane created great rock music. The Jeff Beck Group, Jethro Tull, Blind Faith, Traffic, Yes, Pink Floyd, among others – even the jazz rock of Steely Dan, and the jazz of Dave Brubeck and Miles Davis – that music is lost to younger generations of Filipinos, thanks to martial law.