Nagging questions
A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison (The Philippine Star) - December 14, 2018 - 12:00am

As I read the headlines in the newspapers about the extension of martial law in Mindanao for another year, several questions that should have long been answered and resolved, keep coming back into my mind. These questions arise in the light of the provision in the 1987 Constitution regarding martial law (Section 18, Article VII).

Based on said Article, the President as Commander in Chief of all the Armed Forces of the Philippines has been authorized, under specific conditions, to call out said Armed Forces in order to prevent or suppress lawless violence, invasion, or rebellion whenever any of this events (or all of them) crops up. Under said provision, the President is also authorized to suspend the privilege of the writ of habeas corpus, and to place the Philippines or any part thereof under martial law.

According to US Supreme Court Justice Stone, in the case of Duncan vs  Kahanamoku 327 US, 335-36, “Martial Law is the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when the other branches of  the government are unable to function, or their functioning would itself threaten the public safety….It is the law of necessity to be prescribed and administered by the executive power. Its object is the preservation of the public safety and good order, that defines the scope which will vary with the circumstances and necessities of the case. The exercise of the power may not extend beyond what is required by the emergency which calls it forth.”

As observed and concluded by the Supreme Court during the Marcos regime in the case of Gumaua vs. Espino (96 SCRA, 407), this martial law under the 1987 Constitution is different from the martial law declared by Marcos in 1972 particularly on the following aspects: first, said martial law declared by Marcos automatically suspended the writ of habeas corpus; second, the President can promulgate proclamations, order and decrees during the period of martial law essential to the security and preservation of the Republic, the defense of the peoples’ political and social liberties, the institution of reforms to prevent resurgences of rebellion or insurrection or secession or threats thereof and to meet the impact of a world recession, inflation or economic crisis threatening all nations including highly developed countries; and third, the President as legislator can legally create military commissions or court martial to try not only members of the armed forces but also civilian offenders for specific offenses.

Now, the state of martial law does not automatically suspend the privilege of the writ of habeas corpus, the operation of the Constitution, or the functioning of the civil courts or the legislature. It does not also authorize the conferment of jurisdiction on military courts and agencies where civil courts are able to function. Most importantly, martial law shall only be for a period not exceeding 60 days. Furthermore the suspension of the privilege of the writ of habeas corpus only applies to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. And during the suspension of the privilege of the writ, any person arrested or detained shall be judicially charged within three days otherwise he (she) shall be released (Article VII, Section 18, 1987 Constitution). Pursuant to this provision therefore, the  President can immediately proclaim of martial law for a period of 60 days “in case of invasion or rebellion when public safety requires it.” But such proclamation is subject to (1) review and possible revocation by Congress; and (2) review and possible nullification by the Supreme Court (Bernas, The Philippine Constitution, A Reviewer-Primer p.243).

With the foregoing clarifications, the following questions immediately crop up: first, is it constitutional to declare the martial law in Mindanao for one year? Second and more importantly, is it Constitutional to extend it for another year?  Third, is there sufficient factual basis for its declaration and extension?

Concededly, the questions have become moot and academic as far as the declaration of martial law in Mindanao one year ago. The more relevant and arguable questions refer to its extension for another year which Congress has just approved voting separately. The questions here of course refer to the constitutionality of the extension as far as the period is concerned. Obviously and strictly speaking, this question involves the determination of the sufficient factual basis on the existence of lawless violence, invasion or resurrection in the entire Mindanao, and why for one year.

What comes to mind in this connection is: what has the military done for the past year to prevent or suppress lawless violence, invasion or rebellion. Or more importantly, is there really lawless violence, invasion or rebellion in Mindanao at present?

To most people, Mindanao appears to be as peaceful and orderly as any other part of the country. It has been visited by a lot of people as in any other place in the Philippines because the military has apparently been doing its function of keeping peace and order. Extending the declaration for another year indubitably implies either of two things: that the Armed Forces have not been doing its job as called for; or that the state of lawless violence, invasion or rebellion has only been concocted. Of course there are still rebellious groups in the area, particularly the Abu Sayyaf, the Maute Group and the New People’s Army (NPA). But it appears right now that they have not been as dangerous and in previous times. What also comes to mind here is the war in Marawi. Even six months before it exploded, this government was already aware of such plan of the Maute to invade the place. So the military could have readily prepared to prevent or suppress it? The nagging question therefore in the peoples mind up to now is, why the armed forces were not able to do so? Were they ordered otherwise?

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