Martial law, unconstitutional acts

posted May 30, 2017 at 12:01 am
by  Tony La Viña

We are living in uncertain times, whether one is from Mindanao or Manila, or anywhere in the Philippines. Today, it could be Marawi. Tomorrow, it could be another city or province in Mindanao, Visayas (as what happened in Bohol), or even Luzon. No one can hide. There is no safe haven from terrorism. There is also no safe haven from military and police abuses.

I am convinced that the ISIS is a real threat to Mindanao and the Philippines. Based on what I have seen myself on traditional and social media and what the President included in his report to Congress, I am willing to give the President the benefit of the doubt on his decision to declare martial law in Marawi. But based also on his report and on the text of Proclamation No. 216, I do not see on its face the adequate, sufficient factual basis of declaring martial law throughout Mindanao, much less extending it to the Visayas and Luzon.

Duterte’s decision to declare martial law will hopefully be a watershed moment that turned the tide against extremism and terrorism in our country, ushering in a golden age of peace and development in Mindanao. Alternatively, this might be that moment when we cross a point of no return, with the conflicts and violence in Mindanao and the Philippines accelerating and peace becoming impossible to achieve for decades.

In a Mindanews article I wrote, I proposed that the scenario we would end up with will depend on how martial law is implemented in our island: (1) whether the limits imposed by the 1987 Constitution are faithfully complied with; (2) how our governance institutions, especially Congress and the Supreme Court, perform their constitutional duties related to martial law; (2) whether the executive branch and the military are guided by self-restraint in exercising their expanded powers; and, (3) how citizens and citizen organizations respond to the evolving situation.

Chief Justice Maria Lourdes Sereno, in her commencement speech to graduates of the Loyola Schools of the Ateneo de Manila, asked similar questions: “Will this martial law declaration bring back the human rights violations and the depredations that characterized the martial law regime of 1972? Will investors leave the country? Will young people still have enough good jobs? Will our labor force be squeezed into more painful contortions of diaspora? Will our voices still be heard?”

Chief Justice Sereno’s answer to her own questions: “It depends.” According to her:

“Our hopes for the future depend on whether the Executive Department, led by the President, the leadership and the entirety of the Armed Forces of the Philippines and the Philippine National Police, Department of Justice officials and prosecutors, the Chief Public Attorney and her public defenders will take sufficient care to abide by the Constitution and the laws even while martial law is in place. It depends on whether there will be abuse of the awesome powers that martial law gives the Armed Forces and the police.

It also depends on whether Congress and the Supreme Court will exercise their review powers appropriately over the declaration of Martial Law and the suspension of the privilege of writ of habeas corpus; and whether both houses of Congress and all courts will continue to function normally and well.

It also depends on whether certain independent constitutional bodies, namely the Ombudsman, the Commission on Human Rights, and the Commission on Audit will persist in discharging their proper functions.

Finally, it depends on whether you, my fellow Ateneans, together with the rest of the Filipino population, do your part to ensure that this declaration of martial law does not imperil your future.

The Chief Justice then expressed a hope that with proper implementation, martial rule “should not by itself unduly burden our country.” However, she cautions that martial law “is an immense power that can be used for good, to solve defined emergencies; but all earthly powers when abused can result in oppression.”

“If President Duterte and the aforementioned government authorities avoid the gross historical sins of Mister Marcos and his agents, then our country might reap the benefits of the legitimate use of the provisions on martial law in the 1987 Constitution,” Sereno points out.

The 1987 Constitution provides clear substantive and procedural safeguards so that the Marcos experience is not repeated. For the former: The Bill of Rights must be strictly followed; civilian courts shall reign supreme; and, legislative assembles cannot be abolished. For the latter, Congress and the Supreme Court are given explicit roles to review the proclamation of martial law.

Unfortunately, Congress is refusing to meet in joint session to do its constitutional duty under the 1987 Constitution. The Supreme Court is quite clear about this in the 2012 case of Colmenares v. Arroyo, that the duty to review is automatic and therefore not optional.

I can understand though why Senate President Koko Pimentel, Speaker Pantaleon Alvarez, and Majority Floor Leader Rudy Fariñas erroneously thought that a joint session was not mandatory. I thought myself this was the case until a post by Kabataan Party List Rep. Sarah Elago reminded me of the Colmenares case. Hopefully, like me, the leaders of Congress will change their minds. Otherwise, Congress will be guilty of negligence for not acting on something so critical for our country.

When a proper case is filed, I expect the Supreme Court to do its duty and review the sufficiency of the factual basis of Duterte’s martial law. It should also provide guidance on what is allowed and not allowed under martial rule.

President Duterte must abide by the decision of Congress and/or the Supreme Court. Unfortunately, the President has made it clear that he will not comply with a revocation by Congress or a Supreme Court decision annulling his proclamation by the Court.

This is troubling.

President Duterte should be told that he is endangering his own status and might be unwittingly justifying his own overthrow if he insists and follows through on disregarding the Constitution. 

I personally oppose any extra-constitutional regime change, like a military takeover, but what is the difference if the President himself now ready to violate the Constitution?

Our military is today quite professional. Compared to the Marcos years and the days of the unfortunate coups from Honasan to Trillanes (both of whom have matured as politicians and whom I now respect), our officers and soldiers have internalized the importance of faithfulness to the Constitution. For example, the operational guidelines the military has issued so far to implement martial law are all within the Constitution. Even the announcement that social media posts would be censured (I think they meant censored) is within the clear and present danger rule where such posts affect military operations.

I trust the military will be faithful to the Constitution. But if their commander in chief himself disregards the fundamental law, isn’t he also also encouraging the unconstitutional acts of others? Then it’s a matter of choosing which unconstitutional path one would support or oppose. I am afraid that if that terrible choice has to be made, the country and our soldiers will be divided down the middle and the war we are seeing in Marawi is just child’s play.

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Topics: Tony La Viña , Martial law , unconstitutional acts , ISIS , Mindanao , Constitution , Chief Justice Maria Lourdes Sereno
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