In the wake of the declaration of martial law in Mindanao, the National Union of People's Lawyers released an initial advisory on what martial law does and does not do: (Disclosure: I am the interim president of the Cebu chapter of NUPL.)
In the said advisory, the NUPL said that a declaration of martial law does not suspend the operation of the Constitution; it does not supplant the functioning of the civilian courts or legislative bodies; it does not give jurisdiction on military courts and agencies over civilians; and it does not automatically suspend the privilege of the writ of habeas corpus.
On the latter, that explains why President Rodrigo Duterte had to include in his written declaration a categorical statement that he is also suspending the privilege of the writ of habeas corpus. (The privilege of the writ of habeas corpus affords the person detained the right to question the legal basis of her/his arrest or detention and seek immediate liberty.)
In any event and under all circumstances, according to the NUPL, citizens have the right, among others: to be presumed innocent, to due process, to not incriminate themselves, to invoke the right to remain silent, and to not speak until assisted by a lawyer of one's own choice.
Under the Constitution, a suspect is also protected against the use of excessive and unnecessary force upon arrest and to be informed why they he is being arrested. While warrantless searches and arrests may be made in connection with the continuing crime of rebellion, the suspect must be charged in court within three days of his arrest, otherwise he shall immediately be released.
Martial law, the NUPL stressed, does not also give state forces the license to torture suspects, place them in solitary confinement, or subject them to cruel, degrading, and inhuman punishment. All suspects, regardless of crime, still have the right to a lawyer and access to a lawyer of their choice at all times.
In the light of the said declaration of martial law by the president, I urge everyone to be a little bit indulgent with each other's views about Duterte's decision to declare martial law. I see people quarrelling with others over the issue on social media.
Undeniably there is a crisis in Marawi City which has the danger of spilling to other parts of Mindanao. Thus, there may be a legitimate basis for the president to use martial law to crush the specter of extremism in Mindanao.
On the other hand, we are country with a lingering trauma of the gross abuses of human rights during the dictatorship of Ferdinand Marcos. Marcos and his obsession for power so twisted the essence and purpose of martial law that even if safeguards had been put in place under the 1987 Constitution against possible abuses of martial law, we are still haunted by the ghost of that dark period of dictatorship in our history.
One thing for sure is that we must continue to be vigilant against the threat of abuses that might be committed by state forces given the broad powers of martial law. While many people trust President Duterte to use such power within the purview of its declared intention, the same trust cannot be said to apply to his officials and generals.
If there is one thing that can be said right now about the president's decision to declare martial law in Mindanao, it is that he has painted himself into a corner in solving once and for all the problem of terrorism and in finally bringing peace and stability in the region. His decisiveness also shows his willingness to be held accountable should he fail to restore order despite using such broad powers.
I am one of those who subscribe to the view that martial law is purely the doctrine of necessity as applied to the right of the state to preserve itself. Therefore, we cannot afford to remove it as an option. While martial law is written in our Constitution with some limitations, ultimately its implementation and justification rests upon a question of fact - is it urgently necessary? What must be done at the moment to preserve the state? - which, after the smoke clears in Marawi City, the president will have to explain to the people.