The long legal shadow of martial law

The title of this column comes from a chapter I was asked to write about the long-term impact of the martial law experience in the Philippines. Next week, we will commemorate the 44th anniversary of the proclamation of martial law. To remember that, and as my contribution to the collective effort to make sure that our dictatorship experience does not happen again, I share excerpts from my draft chapter through this and subsequent columns.

I start with February 25, 1986. This was a good day for Filipinos. It marked the end of the Marcos dictatorship which started with the proclamation of martial law by President Ferdinand Marcos on September 21, 1972. 

Five years earlier, in 1981, Marcos had formally lifted martial law but it was cosmetic. Even as a small number of opposition members were elected in the 1984 parliamentary elections, Marcos retained legislative power under the 1973 Constitution through Amendment Number 6. Up to the end of his dictatorial regime, human rights were wantonly violated with people arrested without warrants, enforced disappearances happening, and extrajudicial killing as well as massacres of protestors still occurring.

With the people power revolution, formal democracy was restored. Certainly, the pre-martial law Bill of Rights became the rule again. While initially governing under a revolutionary Freedom Constitution, President Corazon Aquino immediately convened a constitutional commission that then quickly drafted the 1987 Constitution that on February 2, 1987 was ratified by the people.

Things have changed indeed. But the long legal shadow of martial law lingered for decades. Even now, remnants of the legal architecture set up my Marcos remains, not the least of which are the provisions in the 1987 Constitution which perpetuates an imbalance in separation of powers, favoring a strong president that can suspend the privilege of writ of habeas corpus, be granted emergency powers under certain circumstances, and worst once declare a state of martial law throughout the land.

Many Filipinos, particularly those belonging to the economic and social elite—initially supported martial rule. With the support of the military, cooperative media, a small cadre of social and economic elite, and a coopted legislature and Supreme Court, President Marcos established for himself a repressive regime—stifling all forms of dissent, perpetuating himself in power by manipulating the adoption of the 1973 Constitution—made himself both Head of State as President and Head of Government as Prime Minister, rigged elections and installed himself as a dictator for life. 

Marcos’ designs were not at once apparent.  He justified martial law as a way, among others, to dismantle the oligarchic structures and patronage system which contributed much to the suffering of the people, to infuse moral values sorely lacking among Filipinos like discipline, spirit of self-sacrifice for the national welfare. In other words, he wanted to establish a New Society, calling it as the Revolution from the Top.  The objective was to emulate the economic progress and political stability of Taiwan and South Korea. And a wide majority of the local business community and foreign governments, particularly Washington, approved. Only a few brave souls dared to raise a cry of protest.  

The first years of martial law saw increased economic gains due to bolstered business confidence and political stability.  President Marcos tapped good technocrats from the academe and business sector. He encouraged foreign investments, projecting the country as an excellent choice for multinational investors because of low wages and industrial peace. The influx of foreign capital increased considerably. Land reform was instituted and new agricultural initiatives introduced. Amount of investments in infrastructure was at unprecedented levels, with the construction of new roads, highways, bridges, hospitals and other structures essential to nation building. 

With a compliant legislature in the Batasang Pambansa and a subservient Supreme Court, Marcos successfully put in place the political and legal infrastructure which enabled him to exercise absolute power, in the process churning out innumerable presidential decrees which cemented the dictatorship. But with absolute power at its disposal, the Marcos regime not only created a new breed of oligarchs known as cronies to whom the dictatorship granted monopolies. They supplanted the traditional economic elite but also redefined the term corruption and profligacy, which then First Lady Imelda Marcos best exemplified. 

The Marcos dictatorship resulted in innumerable cases of human rights violations, a wrecked economy, highly politicized military and weak governmental institutions.  In the end, the martial law experiment proved to be a national trauma which must not be repeated and never forgotten. 

Today, 44 years later, we are still feeling, as this article illustrates, the ugly vestiges of martial law. None of the architects and enforcers has been brought to justice. Moreover, with the presidential system that we have, there is always a possibility—and that’s not even remote—of a repeat of 1972. As pointed out above, the president is given a lot of leeway when it comes to the exercise of his extraordinary powers. What level of conflict demarcates the choice between ordinary police action and resort to emergency rule? What degree of punitive State action is necessary to address the emergency without exposing civil liberties to unwarranted perils? 

Sadly, the answer to these questions depends largely on this wide presidential discretion. And that is why it would have been better if the 1987 Constitution completely did away with the martial law powers of the president.

In my next column, I will write about the transition from the 1973 to the 1987 constitution and the opportunities we missed there. In subsequent columns, I will also write about the impact of martial law on our human rights jurisprudence and on Marcos-era statues that are still in the books 30 years after the dictator was overthrown.

 

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