MARTIAL LAW IN THE PHILIPPINES TAKE II By Ian Encarnacion*

After 37 years, the Iron Fist has befallen once more. And after 23 years since the restoration of democracy, it threatens to depart once more.

THE FACTS Early yesterday morning, on the 5th of December 2009, President Gloria Macapagal Arroyo, issued Proclamation No. 1959, declaring a state of martial law and suspending the privilege of the writ of habeas corpus in the Province of Maguindanao, except for certain areas identified as bailiwicks of the Moro Islamic Liberation Front (MILF), because of the November 23 Maguindanao Massacre that left 57 persons dead. The Ampatuan's were regarded as the mastermind of the said massacre. In the said proclamation, the President has considered the presence of "heavily armed groups" supposedly under the control of the Ampatuan's, that have apparently established positions to resist the government troops, under authority of the Chief Executive, from exercising their "powers and prerogatives to enforce the laws of the land and to maintain public order and safety." The President likewise based her declaration on the fact that the local judicial system refused to accept the cases against the Ampatuan's and the closure of government offices in the province.

THE CONSTITUTIONAL PROVISION The 1987 Constitution, in Article VII, Section 18 thereof, it provides: "The President shall be the Commander-in-Chief of all armed forces of the and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus. The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion. During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released." (Emphasis supplied).

GROUND FOR PROCLAMATION OR SUSPENSION In the present case, rebellion and its imminent danger, was cited as the ground for the proclamation of martial law in the Province of Maguindanao. According to the Constitution, only two grounds have been provided as a basis for the declaration of martial law or the suspension of the privilege of the writ of habeas corpus in the Philippines, to wit: invasion or rebellion, WHEN PUBLIC SAFETY REQUIRES. Respected jurists in the field interpret that the grounds must be actual and the declaration must be of uttermost necessity. Imminence of invasion or rebellion does not suffice, although it does not preclude the President from expanding the concept under the calling out powers of the President. However, the determination of factual presence of invasion or rebellion is within the exclusive discretion of the President, as held in the cases of Lacson, et al. v. Perez, et al. 1 , (when President Arroyo issued Proclamation No. 38 in May 1, 2001, declaring a State of Rebellion in the National Capital Region) and Sanlakas v. Executive Secretary, et al.2, (when she issued Proclamation No. 427 in July 23, 2003, declaring a State of Rebellion in the Philippines), citing Integrated Bar of the Philippines v. Zamora3: x x x The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for

satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. x x x (Emphasis supplied). In those two cases, the High Court upheld the prerogative of the President in the determination of the presence of the elements of the crimes charged. Hence, the conclusiveness of the declaration is still wholly dependent on the factual findings of the Executive, which may not be totally objective.

THE CONSTITUTIONAL SAFEGUARDS The present charter can be aptly named as "anti-dictatorship, anti-martial law" as a result of our experience under President Ferdinand Marcos. Certain limitations on the power to declare martial law were incorporated by the framers to prevent its whimsical and despotic exercise. The limitations are as follows:
y y y y y y y

The President must submit a report, in person or in writing, to Congress within 48 hours The Congress, by majority vote, may extend or revoke the proclamation or suspension The Supreme Court, in an appropriate proceeding filed by any citizen, may review the factual basis of the proclamation or suspension and decide within 30 days The Constitution is NOT suspended The legislative assemblies and civil courts are NOT supplanted The military courts and agencies are NOT conferred jurisdiction over civilians where civil courts are able to function The suspension of the writ of habeas corpus applies ONLY to those JUDICIALLY charged of rebellion or offenses inherent therein and MUST be charged within 3 days

The current House Speaker Prospero Nograles, Jr. contends that the Congress need not convene, as it is merely discretionary. The author offers a contrary view. The Congressional review is a mandatory directive, as evidenced by the word shall, in the second paragraph, when Congress is not in session. When it is in session, the greater importance of discussing the actual state of the country, or the part thereof that is placed under martial rule. The discretionary part of the

Constitutional safeguard is whether or not Congress shall revoke or extend the proclamation or suspension. As for the Supreme Court remedy, there are questions as to what is the appropriate proceeding. Could it be a Petition for certiorari under Rule 65? Or a Petition for prohibition under the same Rule? How about an Action for Declaratory Relief before the Regional Trial Court? Suppose the martial law is lifted before the Supreme Court finally disposes of the petitions filed before it, would it be rendered moot and academic? Questions I leave the Supreme Court to decide.

THE RIPPLE EFFECT The declaration of martial law has an astounding effect on the Philippine legal system. It is a sort of guinea pig on the Constitutional provisions relating to the Voldemort of our laws. The legal questions aside, the socio-political result of the declaration would leave a deeper mark. Throughout Philippine history, only three Presidents used of this power - Quezon, Marcos and Arroyo - Quezon because of World War II, Marcos because of "alleged" Communist and Moro insurrection and Arroyo because of the spillover of the Maguindanao Massacre. Quezon's was necessary, Marcos's was a farce, but of the three, it was only Arroyo's that had a comparatively weaker Presidential prerogative because of the restrictions imposed by the Constitution. However, like Marcos's, the declaration came within the prelude of a presidential election, one where the likely successor is an opposition candidate. And just like in 1972, it was another Aquino, and his name sake for that matter. In the same manner in 1972, charter change is also the talk of the town and the walk of the boss. And just the same, a parliamentary shift was favored by the ruling party. Is this history repeating itself? If it is, we have not learned our lessons.
*

The author is a 3rd year law student at the Far Eastern University Institute of Law. He is also the current Associate Editor of the Far Eastern Law Review. This article is currently published as well in the authors blog titled Kulot at Law (http://attykulot.blogspot.com/2009/12/martial-law-in-philippines-take-ii.html) 1 GR No. 147780, May 10, 2001 2 GR No. 159085, February 3, 2004 3 GR No. 141284, August 2000