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Dec 07

The Explainer: Martial Law Again

That was President Arroyo addressing the merger of Lakas and Kampi on May 28 this year. Over the weekend, after the country and world was losing patience over the seeming Mexican Standoff between the Ampatuans and government forces in Maguindanao, the union of local governments and the armed forces was spectacularly demonstrated when the President imposed martial law on the province.

The weekend was spent by the President basking in an unfamiliar popularity, while legal experts and politicians wondered what the basis for martial law was, and whether it’s legal. Tomorrow, the Congress meets in joint session to tackle the report the President submitted last night.

So what is martial law? And what are the issues confronting Congress? Tonight, a crash course on these questions.

 

I’m Manolo Quezon, the Explainer.

 

I.

 

ON Saturday morning, the country was told that President Arroyo had imposed martial law on most of Maguindanao the night before, that is, on Friday at 9PM.

Martial Law, the President and her people claimed, was necessary not because something extraordinary had to be done to bring the perpetrators of the Ampatuan Massacre to justice, but because the Ampatuans –shown here with their former friend, the President- had ceased delivering government services in Maguindanao.

Martial law had last been imposed, nationwide, on September 23, 1972, backdated to September 21 for good luck. As I said on this station last Saturday, by proclaiming martial law, the President broke the last post-Edsa political taboo: or, as Atty. Teddy Te exclaimed in exasperation, “what part of ‘Never Again’ don’t you understand?”

You don’t have to refer just to the Marcos years to discover our national discomfort with martial law.

Go back to our revolution against Spain, and the symbols that have enshrined our struggle for independence since then, to see how martial law is something Filipinos aren’t fond of.

The sun in our flag has eight rays, commemorating the provinces of Manila, Cavite, Bulacan, Pampanga, Nueva Ecija, Tarlac, Laguna, and Batangas, which declared independence from Spain in 1896 and were promptly placed under martial law.

So what is martial law? The handy-dandy dictionary definition’s a simple one: military government involving the suspension of ordinary law. Last July, Fr. Joaquin Bernas, one of the drafters of our present Constitution, explained martial law as a situation in which “police power is exercised by the executive with the aid of the military and in place of certain governmental agencies which for the time being are unable to cope with existing conditions in a locality.” Martial law is a power the President can wield, in her capacity as commander-in-chief of the armed forces, and in the past, it included taking on functions normally reserved to the legislature and the courts.

During the Japanese Occupation, President Laurel, by means of Proclamation 29, declared martial law on September 21, 1944. He divided the country into nine military districts with military governors, but retained the functioning of the courts. Within a few months, according to Claro M. Recto, any remaining authority the Laurel Republic had vanished when the Makapili essentially took over the government.

President Marcos declared Martial Law on September 23, 1972, backdating it to September 21 for luck, and going further than any chief executive before or since. He placed the entire country under martial law, issued an order depriving the Supreme Court of the power to review any of his actions, and decreed he would, henceforth assume lawmaking powers and he set up military courts not bound by civilian rules of due process. His martial law formally lasted until Pope John Paul II’s first visit in 1981 but he also amended the 1973 Constitution to retain all his martial law powers.

In the past, a proclamation of martial law also automatically included the suspension of the writ of habeas corpus. Presidents could always suspend the writ without martial law, and indeed, suspending the writ was considered the penultimate, or next to the last step, before martial law. The writ of habeas corpus basically means people can go to court to demand the production of a body –that of someone who’s been arrested- and for that person to be released unless the government can prove, legally, it has a basis for detaining that person.

President Quirino by means of Proclamation 210 October 22, 1950, suspended the writ for several months for those committing the crimes of sedition, insurrection or rebellion.

This was upon the advice of his Secretary of National Defense, Ramon Magsaysay, in order to break the back of the Huk rebellion.

On August 21, 1972, after the Plaza Miranda bombing of Liberal Party senatorial candidates, President Marcos issued Proclamation 889, suspending the writ, a suspension that lasted until January 7, 1972. Notice that over a year passed before Marcos went from suspending the writ to proclaiming martial law.

As it turned out, having restored it, the writ was automatically suspended when Marcos imposed martial law; and what he proceeded to do to ensure he wouldn’t be challenged affected the current provisions of our Constitution on martial law and habeas corpus. Two institutions could have challenged him: Congress and the Supreme Court. He intimidated the Supreme Court by threatening to declare a revolutionary government, leading the Justices out of jobs; they meekly passed decisions agreeing with his martial law proclamation and the powers he assumed; they ruled his 1973 Constitution was validly approved and on that basis, Marcos padlocked Congress.

All these things, on the basis of Marcos proposing a full-blown Communist rebellion was taking place and needed extraordinary measures to crush it.

At this point, let me quickly define what rebellion is. Under Article 143 of the Revised Penal Code dating back to 1930, it’s “rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogative.”

After Marcos, we adopted a new Constitution that tried to make a new dictatorship being established impossible. If Marcos used every avenue to push the constitutional envelope, Cory Aquino tried to exercise the utmost self-control concerning the presidency’s powers. She harked back to an earlier era. Neither Presidents Quezon nor Osmena ever declared martial law, even in the face of the Japanese invasion; instead, they exercised emergency powers that had been passed by the National Assembly. Cory Aquino took a similar approach in the face of coup attempts, particularly in 1989: she asked Congress for emergency powers and didn’t impose martial law.

 

Fast forward to 2006, when President Arroyo issued Proclamation 1017 on the 20th anniversary of the Edsa Revolution, to quell what she believed was a coup attempt against her. The text of the proclamation was substantially copied from Marcos’ Proclamation 1081, and some cabinet members proposed she was authorized to exercise powers similar to those Marcos assumed in 1972; other cabinet members disagreed. In the end the powers exercised where quite limited and the state of emergency was lifted on March 3 with Proclamation 1021. She never went to Congress to ask for emergency powers.

Another state of emergency would come when the gentleman on the right, Andal Ampatuan Sr., shown here with fellow warlord Chavit Singson, got into trouble with their partymate, the President.

The Ampatuans had become the supreme warlords in Muslim Mindanao but others wanted a bigger slice of the pie. Defense Secretary Gilbert Teodoro Jr. tried to negotiate peace between partymates and former allies, the Mangudadatu clan and the Ampatuan clan, but neither would budge.

As we all know, the result was that when the Mangudadatus persisted in challenging the Ampatuans, the Ampatuan massacre took place. The President designed her Secretary of the Interior, Ronaldo Puno, to exercise her powers over the ARMM.

We know from the diary of Jesus Dureza that in the meantime, Teodoro’s replacement, Norberto Gonzales, had been busy holding behind the scenes meetings on how to handle the situation.

For a time it seemed there was a Mexican standoff in Maguindana: the Ampatuans handed over Andal Ampatuan Jr., widely suspected of being at the scene of the massacre, but the rest of the clan holed up in the mansions and the government began being hammered domestically and internationally for appearing to treat the clan with kid gloves. Finally, last Saturday, Executive Secretary Ermita announced the President had imposed martial law and suspended the writ.

Proclamation 1959 will go down in history as the first post-Edsa imposition of martial law, the first under the present Constitution, the first by a woman president, and the first to be marred by a typo: it mentions Republic Act 6986 as one of its basis in law when that’s a law UP Law Dean Mar-Vic Leonen pointed out creates a public highschool. Justice Secretary Devanadera later explained they actually meant to refer to the Revised Penal Code. Oops.

We’ll now proceed to explore the Legal Basis for Imposition of Martial Law, because much of the talk going on, now, involves not only whether the President has made an adequate case for martial law, but what she can do with it, while Congress debates it and the Supreme Court deliberates on it.

Article VII (Executive Department), Section 18 of the Constitution spells out the steps for imposing martial law: a President has some options when confronted with a challenge to government authority.

First, when there is lawless violence, invasion or rebellion, the President can call out the armed forces to suppress either of the three events;

If the President feels this isn’t enough, then there are two added instruments the President can use: Martial Law or the suspension of the privilege of the writ of habeas corpus. But they can be imposed only upon the existence of two simultaneous conditions:

When there is invasion or rebellion; and when the public safety requires it.

But there’s an expiration date: martial law or the suspension of the writ are only valid for a period of 60 days.

Earlier, we looked at what the suspension of the writ of habeas corpus is. Martial law doesn’t automatically include suspending the writ; a President has to specify a suspension if included with martial law, or suspend even without martial law. Now let’s look at the grounds for suspending the writ:

When there is invasion or rebellion; 

And when the public safety requires it;

In any case, the suspension of the writ applies only to persons judicially charged with rebellion or offenses inherent to rebellion or offenses directly connected with invasion.   

And unlike the Huk-busting days of Magsaysay, when the writ being suspended meant government could detain people for a long time while preparing a case, the suspension of writ is now limited in duration: any person arrested or detained has to be judicially charged within 3 days. Otherwise, he must be released.

Now unlike the days of Marcos, the President is answerable to the other branches of government for imposibng martial law. The primary duty of the President is this.

Within 48 hours from proclamation of martial law or the suspension of writ, the President has to submit a report in person or in writing to Congress. Close to 10PM Sunday night, or 48 hours after she signed Proclamation 1959, Executive Secretary Ermita submitted a 20 page report, 7 pages of which were photos, 4 pages of introductory text, 6 pages summarizing the massacre, leaving 8 pages justifying an imminent and not actual rebellion.

This brings us to the Oversight Role of Congress:

The Constitution orders Congress to convene without need of a call or summons within 24 hours of proclamation or suspension. Since Congress was in Session, our energetic lawmakers decided to take their time and not meet until today or 72 hours after martial law was declared.

After the president submits her report within 48 hours of proclamation, Congress, voting jointly, and by a majority vote of all its members (House and Senate combined) may revoke the proclamation or suspension.  The revocation cannot be set aside by the President.

Conversely, if the president can justify the proclamation or the suspension and if the conditions of invasion or rebellion persists and the public safety continues to require it, the President may ask the period to be extend as determined by Congress; this is what Congress is set to do tomorrow, at 4PM, the very first time Congress will exercise this duty under the present Constitution.

Which brings us to the Role of Supreme Court, which had disgraced itself the last time martial law was proclaimed.

The SC may review, in an appropriate proceeding filed by any citizen, the sufficiency of factual basis for the proclamation or suspension: this deprives the option of the Supreme Court to chicken out.

The decision must be promulgate within 30 days from its filing. This means the Supreme Court can’t drag its feet, either.

And because Marcos made himself not only president for life but lawmaker and head of a system of military courts, today, Martial Law does not: 

Suspend the Constitution;

Supplant or supersede the functioning of the civil courts or national or local legislatures;

confer jurisdiction on military courts and agencies over civilians where civil courts are able to function;

Does not automatically suspend the privilege of writ of habeas corpus.

The President and her people have crossed a constitutional line, in the hope they can prove to the public martial law isn’t merely not a big deal, but actually, a pretty good deal in Maguindanao. The AFP has even proposed extending it to election day. The President’s report ends by saying martial law will be in place for as long as the President believes it’s necessary.

The ball is now in the hands of the House of Representatives. Speaker Nograles at first said he didn’t think martial law was necessary but now says it’s such a good thing he doesn’t think Congress should even meet about it. Nevertheless, the House held a caucus this afternoon to discuss what to do. This is, after all, the one and only time in the Constitution that the House gets to vote with the Senate, making it not a co-equal branch, but the bigger bloc in a joint vote.

Juan Ponce Enrile held a caucus this afternoon too, with Senators who were surely keenly interested in what this former martial law administrator has to say. The Senate is handicapped in a joint vote on martial law, because oddly enough, the drafters of the 1987 Charter assumed congressmen would be more loyal to democracy than senators. Yet as in 1972, opposition to martial law has been the most vocal in the Senate and not the House.

When we return, we’ll meet a presidential candidate’s spokesman who also happens to teach Constitutional Law. His hopefully unbiased opinion on how Congress and the Courts will handle martial law, when we return.

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