THE government’s top lawyer said Thursday that President Rodrigo Duterte can declare martial law even outside the parameters of the Constitution and even without the approval of Congress and the Supreme Court if “the people’s welfare is on the line.”
At a Palace press briefing, Solicitor-General Jose Calida cited the need to veer away from the “textbook definition” of how a President can declare martial law, citing the extraordinary instances surrounding Duterte’s presidency.
“That is what is placed in the textbook, but you know, there are certain situations as I said and these are hypothetical situations, when there is really a clear and present danger to our country, and nobody will help the President do his job as the father of the nation, he will not allow his family so to speak—us, Filipinos—to suffer because of the inability or unwillingness of certain functionaries to do what is right for the country,” he said.
“We are talking here of certain conditions which cannot be predicted. However, it must be very extreme. In other words, for example, you are aware of the plot to oust the President. What if they will bomb Malacañang? They will bomb—put bombs in our malls, you know, to create trouble. And there will be again, you know, the drug lords will hire assassins to kill him. And some parties might be in cahoots with this plot,” he said.
In a chance interview, Calida cited another scenario wherein the breakdown of law and order can be used as a reason to declare martial law.
“The state of lawlessness [can be sufficient]. But if it becomes worse, for instance, if there are already foreign elements trying to destabilize our country, to assassinate him, to assassinate government officials. In those extreme circumstances as I said, somebody has to act,” Calida said.
“In other words, if there is already a breakdown of law and order. And nobody is acting or they are afraid to act. Somebody has to act and it should be the President,” he added.
Over the weekend, Duterte said that he will declare martial law if the drug problem in the country worsens into something “virulent.” But in a speech at Cabanatuan, Nueva Ecija on Wednesday, the President said that he agrees with the military that there is no compelling reason yet to declare martial law.
Under the 1987 Constitution, the President may declare martial law only on two grounds—invasion and rebellion. The period cannot exceed 60 days without congressional approval, and the Supreme Court may review the declaration of martial law.
But Calida said a declaration of martial law could be “extra-constitutional” in the same way the 1986 People Power revolt that ousted President Ferdinand Marcos was.
“During the 1986 Edsa revolution, if you notice, there was no martial law declared but there was a change in government. It was an extra-constitutional movement that changed the government. Why? Because probably during that time, there was really a need to do so,” he said.
In his speech Wednesday, Duterte lamented that the limits set by the Constitution have derailed his job to eradicate the country’s problems.
Should two branches of the government clash—the judiciary and the legislative clash, it would be him—the President who can decide for the future of the nation.
“Who decides now? The Supreme Court says no, but Congress says yes. Who decides? The sitting president. So, it’s me,” Duterte said.
Contrary to Duterte’s statement, however, Calida said that under the Constitution, only the Supreme Court is the final arbiter.
Calida said, however, that the martial law provisions of the Constitution should be amended to be able to quickly address emergencies that require the declaration of military rule.
“The 1987 Constitution is a reflex action because of the Marcos experience. So it was not a normal situation when they drafted the Constitution,” Calida said.
Senate President Pro Tempore Frankin Drilon on Thursday reiterated that the drug menace cannot be used as a reason for declaring military rule. The Constitution, he said, recognizes only two grounds for such a declaration—invasion or rebellion, he said.
“The phrase “when public safety requires it” was not a ground upon itself “but a condition that qualifies the two grounds provided under the Constitution,” Drilon said.
Senate Minority Leader Ralph Recto added that under the Constitution, the President does not have the sole power to allow martial law. The Constitution, which the President has sworn to uphold, empowers Congress to revoke martial law, he said.
“The problems we face today do not require the calling in of the army. We do not burn the house down to kill a few rats,” Recto said.
Rep. Gus Tambunting of Parañaque City said the Palace’s legal team must prepare for questions if the President declares martial law outside the parameters of the Constitution.
“The Constitution provides the conditions for the declaration of martial law, that is martial law may be declared to prevent or suppress lawless violence, invasion or rebellion. This denotes events of a certain scale. Whether or not the conspiracy of drug lords against the President amounts to lawless violence is a question of fact that the President and his legal team must be prepared to answer,” Tambunting said.
“Given this background, pronouncements like these must be made with extreme caution, since beyond expressing what the President is ready to do to solve the drug menace, it may denote a state of affairs which is prejudicial but as of yet non-existent,” Tambunting added.
Rep. Tom Villarin of Akbayan said because the Constitution recognizes only invasion or rebellion as a ground for martial law, Calida “might be referring to a future constitution” when he issued his statements on military rule.
Davao City Rep. Karlo Alexei Nograles dismissed as “all speculative and hypothetical situations” the threats of martial law.
“The Constitution spells out very clearly the conditions for Martial Law to be declared. And the same Constitution specifies the safeguards given to Congress and the Supreme Court. Does the President know this? Yes of course; he is a lawyer. Does the solicitor general know this? Yes because he is a lawyer,” he said.
“So when the both of them answer speculative questions and hypothetical situations, we must always appreciate that it is in the context of what is written in the Constitution. The President and the Solicitor General and the entire government structure will always follow the Constitution,” he added.