The chilling effect of President Duterte’s recent declaration of martial law in Mindanao effective May 23, 2017 is really felt all over the country. Even if it is declared only in Mindanao, that feeling of apprehension still prevails among Filipinos throughout the land not only because it is quite unexpected and even declared while he is abroad in Russia but also because of Duterte’s statement that he will not hesitate to impose martial law nationwide if he senses that violence in Marawi City, being perpetrated by the ISIS has spilled over into the Visayas and Luzon.
Of course, the best interest of the country and the better part of discretion dictate that we should refrain from making any comment at this stage until the President has submitted his report to Congress on the factual basis of his declaration of said martial law. Said report required by the Constitution (Section 18, Article VII) is due today, Friday or within 48 hours after martial law has been declared. Nevertheless, the apprehension subsists because Duterte likens this martial he has declared to the Marcos martial law which he describes as “good”.
The Marcos martial law however is not the same as the martial law now allowed by the 1987 Constitution. First of all, the proclamation of martial law by Marcos automatically suspends the privilege of the writ of habeas. Secondly, when Marcos declared martial law, he can, as President, promulgate decrees and orders essential to the security and preservation of the Republic, the defense of political and social liberties of the people and the institution of reforms preventing the resurgence of rebellion, insurrection or secession or threat thereof, and necessary to meet the impact of a world recession, inflation or economic crisis threatening all nations including highly developed countries. Thirdly, during the period of martial law, the President as legislator can legally create military commissions or courts martial to try not only members of the armed forces but also civilian offenders for specific offenses (Gumawa vs. Espino, 96 SCRA, 403-7, February 29, 1980).
The present Constitution however expressly rejects those features of the Marcos martial law. It does not automatically suspend the privilege of the writ of habeas corpus and the operation of the Constitution, nor supplant the functioning of the civil court or legislative assemblies. It also does not confer jurisdiction on military courts and agencies over civilians where civil courts are able function. In Section 18, Article VII of our present Constitution, limits have been imposed particularly: (1) the time limit of sixty days; (2) the possible review and revocation by Congress; and (3) review and possible nullification by the Supreme Court. (Bernas, Primer on the 1987 Philippine Constitution p. 343).
More importantly, under the present Constitution, the President can place the Philippines or any part thereof under martial law and/or suspend the privilege of the writ of habeas corpus only in case of invasion or rebellion when public safety requires it. Rebellion is “rising publicly and taking up arms against the government for the purpose of removing allegiance from said government or its laws, the territory of the Philippine Islands or any part thereof, or any body of land, naval or armed forces, or of depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives” (Article 134, Revised Penal Code). Invasion on the other hand in its general sense refers to any hostile or forced entry or incursion into any territory of our country.
Martial law is essentially a police power for the purpose of preserving order and insuring public safety. While police power is normally a function of the legislature, under martial law this police power is exercised by the executive with the aid of the military and in place of certain government agencies which for the time being are unable to cope with existing conditions in a locality which remains subject to sovereignty. In other words, it authorizes “the military to act vigorously for the maintenance of an orderly civil government (Justice Black, Duncan vs. Kahanamoku, 327 US 304, 326).
Writ of habeas corpus on the other hand is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day of his capture and detention, and submit to the court or judge, the cause of his actual deprivation of liberty. Here it is the privilege of the writ of habeas corpus that is suspended, not the writ itself, i.e., once the officer detaining the person shows to the court that he is being detained for an offense, the court may not inquire further. The suspension of the privilege of the writ shall apply only to persons judicially charged with rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege, any person arrested or detained must be judicially charged within three days otherwise he shall be released (Section 18 idem). Furthermore, the suspension of the writ does not suspend the right to bail except when the offense charged is punishable by reclusion perpetua and the evidence of guilt is strong (Section 13, Article 3, Constitution).
With the foregoing provisions and principles of our Constitution as our guide, let us therefore find out if the declaration of martial law by Duterte is valid and legal. His report to Congress in this connection is therefore very vital as it contains the factual bases for declaring martial law. The primary and important questions that must be answered here are: (1) are there really sufficient grounds to declare martial law in the entire island of Mindanao when the terroristic acts now being perpetuated by the Maute and the ISIS group are only in Marawi City? (2) Is the military not capable of suppressing and stopping this terrorism and lawless violence even without declaration of martial law? (3) Is there invasion or rebellion in Mindanao when the AFP spokesman himself recently claimed that everything is under control? (4) Can martial law be declared in the entire country just because the President senses that Middle East based Islamic State of Iraq and Syria (ISIS) has also taken foothold in Visayas and Luzon? And (5) is there a clear and present danger that the rule of law may be violated and disregarded once more like during the Marcos martial regime?
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