The most important impact of the Supreme Court’s 11-3-1 decision on July 4, 2017 finding factual, and thus constitutional basis for President Duterte’s May 23 declaration of martial law, is not that the high court supported Duterte.
The most far-ranging effect is that the Supreme Court has grossly devalued the meaning and impact of martial law. The court did so by simply defining what martial law is all about. In philosophy and logic, once you define something, you limit it, because something that is not defined has no limits.
In effect, Duterte, backed by the Supreme Court, has produced what I call the small-dosage martial law, or martial law express—in the same manner restaurant chains, supermarkets, or even banks call their small branches “express,” because they are not the regular thing that people are used to.
So now we have a low-level martial law, not the martial law that people were used to—and feared—for a long time. This is the Ferdinand Marcos martial law, which was declared from Sept. 21, 1972 and extended until 1981 when he theoretically lifted it. In effect, Marcos’s martial law lasted for 14 years, from 1972 until the dictator was ousted by People Power in February 1986.
Martial law express came about because Solicitor General Jose Calida could not tell the high court, during the three days of oral arguments in June, what the difference is between martial law and the calling-out power of the President. Calida’s answer: None.
What is the calling-out power of the President? It is one of the three extraordinary powers of the President, as commander-in-chief, the other two being suspending the privilege of the writ of habeas corpus and declaring martial law.
According to the SC decision penned by Justice Mariano del Castillo, “among the three extraordinary powers, the calling-out power is the most benign and involves ordinary police action. The President may resort to this extraordinary power whenever it becomes necessary to prevent or suppress lawless violence, invasion, or rebellion. “[T]he power to call is fully discretionary to the President;” the only limitations being that he acts within permissible constitutional boundaries or in a manner not constituting grave abuse of discretion.” In fact, Del Castillo points out, “the actual use to which the President puts the armed forces is xx x not subject to judicial review.”
This could mean that the only difference between the President’s calling-out power and the power to declare martial law is that martial law is subject to review by the Supreme Court—and by Congress, which may extend it.
The 1987 Constitution puts limits on any Marcos-era type martial law. These limits, or bedrock standards as Chief Justice Maria Lourdes Sereno, are the fourth paragraph of Section 18, Article VII of the Constitution:
“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,” writes Sereno in her dissenting opinion against the imposition of martial law on the entire island of Mindanao, instead of limiting this to just three provinces, including the province where Marawi City is located.
Martial law express has three major limits.
One, ability to legislate.
Says CJ Sereno: “The Constitution specifically provides that a state of martial law does not supplant the functioning of the legislative assemblies… The President is not automatically vested with plenary legislative powers. Ordinary legislation continues to belong to the national and local legislative bodies even during martial law. This necessarily connotes the continued operation of all statutes, even during a state of martial rule. It has been opined that the martial law administrator has the authority to issue orders that have the effect of law, but strictly only within the theater of war—an area that is not necessarily the same as the entire territorial scope of the martial law declaration.”
Two, operation of civil courts.
Explains Sereno: “The rule under the Constitution is that the civil courts cannot be supplanted by military courts. … The civil courts remain open and fully functioning, and the Rules of Court continue to be applicable.” She notes that despite Duterte’s martial law, “all courts, including that in Marawi City are functioning, albeit in a nearby municipality.”
Three, despite martial law, there cannot be arbitrary arrests.
“The constitutional guarantee against arbitrary arrests under the Bill of Rights remains in full effect. As a general rule, a warrant of arrest is necessary before an arrest can by validly affected as provided in Section 2, Article III of the Constitution,” insists Sereno.
However, she grants, “because rebellion, conspiracy, or proposal to commit rebellion and crimes or offenses committed in furtherance thereof constitute direct assaults against the State, they are in the nature of continuing crimes. As such, arrests without warrant of persons involved in rebellion are justified because they are essentially committing an offense when arrested.”
Sereno says “The arrest of persons involved in rebellion is thus synonymous with a valid warrantless arrest of a person committing a crime in the presence of the arresting officer.”
On the other hand, the chief points out, “Arrests of persons charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism may be made without judicial warrant only upon authority in writing by the Anti-Terrorism Council. Immediately after taking custody, the arresting officers shall notify in writing the judge of the court nearest the place of apprehension or arrest.”
“The officer is allowed to detain the person for a period not exceeding three days from the moment the latter has been taken into custody. Within three days, the arresting officers shall present the person suspected of the crime of terrorism before any judge of the place where the arrest took place at any time of the day or night. Judges shall ascertain the identity of the arresting officers and the persons presented and inquire as to the reasons for the arrest. They shall also determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture. They shall submit a written report within three calendar days to the proper court that has jurisdiction over the case of the person thus arrested.”
Considering the above, I am not surprised that House Speaker Pantaleon Alvarez is now talking of an extended Duterte martial law—until 2022, until the President’s term expires.
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