Manuel Quezon III is a columnist for the Philippine Daily Inquirer newspaper and the host of the political affairs show “The Explainer” on the ABS-CBN TV news channel.
It has been almost a month since President Rodrigo Duterte responded to the outbreak of fighting in Marawi City, in the center of the island of Mindanao, with a declaration of martial law. The army is still struggling to wrest back control of part of the area from a group of Muslim insurgents.
But how have Philippine institutions reacted to the declaration? The current Philippine constitution, which dates to 1987, contains provisions meant to prevent a repeat of the “self-coup” staged by Ferdinand Marcos in 1972-1973, when his imposition of martial law laid the basis for years of authoritarian rule. To prevent this from happening again, the designers of the constitution included a series of safeguards.
The constitution stipulates that a state of martial law cannot be used to shut down Congress or the courts, or to deprive individuals of their rights under law. It says the Supreme Court can review the factual basis for martial law if any citizen files a corresponding case. And it commands Congress to immediately convene if martial law is proclaimed during a recess, specifies that the president must submit a report to it, and gives it the power to vote, in a joint session, on overruling the state of emergency.
When President Gloria Macapagal-Arroyo imposed martial law in 2009, the two institutions did as the constitution expected them to do: Congress held a joint session, and the Supreme Court accepted cases, but Arroyo lifted the state of emergency before either institution could formally approve or disapprove of the measure.
But when Duterte proclaimed martial law on May 23, something strange and disturbing happened. In stark contrast to 2009, the other two branches of government diverged when deciding what to do next. Congress, which is controlled by a pro-Duterte majority, opted to ignore its own behavior eight years ago, instead adopting the novel theory that a joint session was required only if Congress opposed martial law. Instead, both chambers passed separate resolutions expressing approval, brushing aside the constitution’s stipulations.
The chief justice of the Supreme Court, Maria Lourdes Sereno, had other ideas. She made a point of registering her objections. She reminded subordinate courts they should continue doing their jobs, and delivered a graduation speech reminding students of the dark period under the Marcos dictatorship. What’s more, the Supreme Court’s pointed insistence that civil rights were not canceled out by martial law found an unexpected echo in the very institution that had been instrumental in establishing the Marcos dictatorship: the Philippine military.
Both the secretary of national defense and the armed forces chief of staff took pains to point out that neither of them had recommended martial law. And even as Duterte vowed to implement martial law like Marcos(the president he admires most), the defense department issued an instruction to the troops enumerating constitutionally prohibited acts. This was formalized when Duterte signed a General Order adopting the military line, a detailed enumeration of rights that contradicted his own fire-breathing rhetoric.
The Philippine president had spent his first few months in office trying to woo the military, touring their camps and trying to charm them. He eventually stopped when it became clear that officers had grave reservations about his anti-American and pro-Chinese and pro-Russian policies, his eagerness to appoint high-ranking Communists to important cabinet departments, and his touting of peace negotiations with the Communist rebel leadership in exile. The military, too, rather pointedly declined to take part in Duterte’s war on drugs, announcing so many conditions — including publicly requesting written orders — that it would’ve made their participation next-to-useless. In the initial days of martial law, the military spent almost as much time playing down the president’s assertions of Islamic State infiltration of Mindanao as it did fighting house to house in Marawi City.
For his part, the president tried proposing that Muslim rebels engaged in peace negotiations be allowed to join the fighting, along with Communist rebels — ideas publicly rejected by the military. Meanwhile the president and the House speaker took turns denouncing the Supreme Court, both saying they would ignore the justices if they dared to declare martial law invalid. The court didn’t go that far, but it did choose to accept several cases challenging martial law.
The Supreme Court has just concluded three days of hearings on challenges to the proclamation of martial law, filed by church, civil society and political leaders. The plaintiffs generally raise two objections: the factual basis for the proclamation, and the refusal of the Philippine Congress to convene a joint session. Because the constitution states that the Supreme Court must rule on any challenge within 30 days, a decision should be forthcoming by early July.
The prospects of an extension will depend in part on how the Supreme Court decides on the cases before it. It’s revealing that the House speaker has continued making combative statements about the Supreme Court. Duterte, for his part, recently backpedaled and said he will abide by the court’s decision. What’s clear, however, is that of the three branches of government, the Supreme Court is now on its own as far as oversight of martial law is concerned.