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Martial Law under the 1987 Constitution

The last two essays under this column discussed the speculations peddled by Vice President Leni Robredo to the effect that President Rodrigo Duterte wants to declare Martial Law and impose one-man rule in the Philippines. To repeat, that speculation reveals that Robredo does not understand Martial Law, either during the time of President Ferdinand Marcos, or under the 1987 Constitution.

Martial Law under President Marcos was discussed in last week’s essay. This discussion is about Martial Law under the 1987 Constitution.

After Corazon Aquino seized power in February 1986, she abolished the 1973 Constitution and replaced it with what she called the “Freedom Constitution.” This “Freedom Constitution” was a verbatim copy of the 1973 Constitution minus the provisions on the Batasang Pambansa, the legislature then operating.

By virtue of this “Freedom Constitution,” Aquino vested in herself both executive and legislative powers—the same powers President Marcos exercised under the 1973 Constitution. From 1986 to 1987, Aquino ran the country under a “one-woman rule” system. It was a dictatorship, plain and simple.

Did Aquino’s allies, particularly those from the LP, oppose the Aquino dictatorship? No. In fact, historical revisionists in the LP deliberately avoid mentioning that Aquino once ran the country under a dictatorship identical to the one which they attribute to Marcos.

Instead of calling an election for delegates to a constitutional convention which will draft a new charter for the country, Aquino created the 1986 Constitutional Commission composed of about 44 of her political allies and very close friends, and just 5 commissioners from the political opposition then led by ex-Labor Minister Blas Ople.

Unlike in the 1934 and 1971 Constitutional Conventions which were composed of elected delegates, every member of the 1986 Constitutional Commission was appointed by Aquino. Thus, for the first time in Philippine history, the drafters of the nation’s constitution were not elected by the people.

Did Aquino’s allies oppose this unprecedented, dictatorial move? No, and the LP’s historical revisionists are mum on this.

The 1987 Constitution turned out to be a reactionary charter because its provisions on the power of the president to declare Martial Law were diluted. In fact, its drafters publicly admitted that the charter is designed to prevent a rise of another “dictatorship” akin to that under President Marcos.

Just how diluted those provisions are will be revealed by a comparison of past charters with the present.The 1935 and 1973 charters vested in the President the sole prerogative to declare Martial Law. Congress had no power to interfere, and although the Supreme Court could review the validity of the proclamation of Martial Law, its power of judicial review was limited to whether or not the President acted arbitrarily in proclaiming Martial Law.

Under the 1987 Constitution, however, Congress is authorized to revoke the proclamation of Martial Law, and the Supreme Court may, upon a petition by any citizen, review the “sufficiency of the factual basis of the proclamation of Martial Law.”

More specifically, the 1987 charter states that although the President is empowered to put the country or any part of it under Martial Law for a maximum of 60 days, he must submit the corresponding report to Congress within 48 hours from the proclamation of Martial Law. In turn, Congress may either revoke the proclamation, or even extend the period set by the President. There is no deadline for Congress to act on the matter.

Are Congress and the Supreme Court equipped with enough information and expertise to decide if Martial Law is necessary for the country? On account of the lack of proximity Congress and the Supreme Court have in relation to the source of the national emergency, that is very doubtful.

Whose decision will prevail if the Supreme Court disagrees with Congress? That deadlock will surely lead to a constitutional crisis, and the nation does not need a constitutional crisis at a time when its very survival is at stake.

Should Congress disagree with the President and revoke the proclamation of Martial Law, and it turns out that Congress is mistaken, then the of the State is needlessly compromised. Gambling, with the nation’s security at stake, is akin to courting trouble on a large scale.

The other choice is for Congress to adopt the President’s position and allow Martial Law to remain. If the majority of the House of Representatives belongs to the president’s political party, that is a virtual certainty. Compared to the number of members in the House, the 24 votes of the Senate will not really matter in this regard. That’s because the Constitution states that both houses of Congress must vote jointly in its deliberations on the president’s proclamation of Martial Law.

To all intents and purposes, therefore, the participation of Congress in the Martial Law equation is insignificant in the light of political reality.

Jurisprudence under the 1935 and 1973 charters indicate that the Supreme Court may disallow the proclamation of Martial Law only if the president acted arbitrarily, in resorting to Martial Law. The reason for this standard is anchored not only on the principle of separation of powers underlying the Constitution, but also because the Supreme Court is not equipped with the knowledge and expertise on matters affecting the national security—at least, when compared to the executive department.

Under the 1987 Constitution, the Supreme Court is required to go beyond the “arbitrariness” standard, and look into the “factual” basis for Martial Law. Can the Supreme Court really comply with this standard without the knowledge and expertise required for doing so? Here’s a clue—the Supreme Court has since time immemorial ruled that it is “not a trier of facts.”

At the end of the day, whether President Duterte likes it or not, and unless the 1987 Constitution is so amended, and for the information of Vice President Robredo, Martial Law under the current charter is not the “one-man rule” Robredo erroneously wants the public to fear.

Topics: Martial Law , 1987 Constitution , President Rodrigo Duterte , Vice President Leni Robredo , Ferdinand Marcos , Martial Law under the 1987 Constitution
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