Can President Duterte declare martial law in the manner Ferdinand E. Marcos did in September 1972?
The answer is no.
This is because under the 1987 Constitution, martial law is limited by three things, as enumerated in the dissenting opinion of Chief Justice Maria Lourdes Sereno in the Supreme Court’s 11-3-1 July 4, 2017 decision finding factual and constitutional basis for Dutere’s May 23 martial law declaration (Proclamation 216) in the whole island of Mindanao.
The three restrictions: One, the ability of Congress and all legislative assemblies in the country to legislate or enact laws. With this ability, the rule of law prevails.
Two, the continuing operation of all civil courts which cannot thus be supplanted by military courts. With the operation of civilian courts, the Rules of Court continue to be applicable.
Three, the ban against arbitrary arrests. In general, no one can be arrested without an arrest warrant. The military can arrest a suspect for rebellion without warrant but it must be for his immediate prosecution and he must be charged within three days (36 hours without martial law). This kind of arrest without warrant is like arresting a suspect who is being arrested for committing a crime in the presence of the arresting officer. Under Philippine law, rebellion is reckoned as a continuing crime.
Also, rebellion must not be imminent (required by the 1935 Constitution) but actual and necessary (as required by the 1987 Constitution). Since the requirement is actual, the President cannot declare martial law in other places by simply anticipating that the rebels could be going to these other places, or a “spillover.” This is why, Carpio agreed with martial law in Marawi only and not for the entire Mindanao because there is not actual rebellion –yet—outside Marawi.
Because of the above restrictions, I liken Duterte’s martial law in Mindanao to coffee espresso—coffee dispensed in a small cup, seemingly strong (in coffee flavor) but with lesser coffee content than a regular cup of coffee. I also call it martial law express—in the manner restaurant chains, supermarket chains, and even banks call their small or ad hoc branches “express”—a small unit operation without the whole menu of services or products offered by their regular branches.
In his dissenting opinion, Senior Justice Antonio Carpio offers even more restrictions. “The 1987 Constitution does not automatically vest significant additional powers to the President under a state of martial law or suspension of the privilege of the writ. However, a declaration of martial law or suspension of the privilege of the writ has a built-in trigger mechanism for the applicability of other constitutional provisions that may lawfully restrict the enjoyment of constitutional rights, provided there are existing laws specifically authorizing such restrictions,” Carpio writes in his 13,500-word dissenting opinion.
Carpio pretends to raise the specter of a Marcos-era martial law then proceeds to contradict himself, in very fine and cogent language. He recalls: “When President Ferdinand Marcos declared martial law in 1972 under the 1935 Constitution, he abolished Congress, shut down media, imprisoned leaders of the political opposition, packed the Supreme Court with his law school classmates and loyalists, and ruled by decree – thereby making himself a dictator for over 13 years until the people ousted him from power in 1986.”
Duterte salivates at having such a Marcos-type martial law, saying his martial law “will not be any different from what Marcos did.” Unfortunately, the 1987 Constitution does not allow him to back that rhetoric with action.
Carpio reminds the President: “The review power of the Court, as well as of the Legislature, on the Presidents exercise of his Commander-in-Chief powers was precisely written in the 1987 Constitution as a checking mechanism to prevent a recurrence of the martial law of Marcos. The 1987 Constitution further mandates that a state of martial law does not suspend the operation of the Constitution. It is apparent that President Duterte does not understand, or refuses to understand, this fundamental principle that forms part of the bedrock of our democracy under the 1987 Constitution, despite his having taken a solemn oath of office to “preserve and defend the (1987) Constitution.”
With his martial law, Marcos was able to take over enterprises like public utilities (power plants, radio-television stations and telephone companies) and businesses like banks and didn’t return them to their original owners until his ouster in 1986.
Under the 1987 Constitution, the President can take over business enterprises like power plants, television stations, and businesses affected with public interest—but he needs a law from Congress to do so. Marcos never needed a law; he simply produced his own law or decrees. Today’s President cannot do that.
Moreover, Carpio notes, “counsel for petitioners (Lagman et al) and the (Solicitor General) share the view that martial law under the 1987 Constitution does not significantly give the President additional powers. Indeed, there are only incremental accretions of power that automatically attach under a state of martial law. The significant additional powers that the President can exercise under a state of martial law require laws to be enacted by Congress.”
Finally, there is now a law which places members of the Armed Forces of the Philippines and the Philippine National Police under the jurisdiction of civilian courts (not military tribunals) for abuses or offenses committed in the performance of their duties.
Notes Carpio: “To date, no statute confers jurisdiction on military courts and agencies over civilians where civil courts are unable to function. On the contrary, Republic Act No. 705562 even strengthened civilian supremacy over the military by returning to the civil courts the jurisdiction over certain offenses involving members of the Armed Forces of the Philippines, other persons subject to military law, and the members of the Philippine National Police, repealing for the purpose certain presidential decrees promulgated during the Marcos dictatorship.”
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