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Lingering martial law jurisprudence

The lapse of more than 40 years since the proclamation of martial law did not render obsolete a number of jurisprudential doctrines, which until the present remain part of our case law. That’s how long the legal shadow of martial law is in our society.

The most notorious are the doctrines of warrantless arrests, precedents now cited in the war against illegal drugs. An example is the doctrine of continuing offense that justified warrantless arrests, enunciated in the 1990 case of Umil v. Ramos, but which was first proposed in the notorious decision in 1995 of Garcia-Padilla vs. Enrile decision where the Marcos Presidential Commitment Order was declared valid.

According to Garcia-Padilla, the arrest of persons involved in rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. Hence, the arrest and detention of persons ordered by the president through the issuance of Presidential Commitment Order PCO is merely preventive. The majority further stated that a Presidential Commitment Order, the issuance of which is the exclusive prerogative of the president under the Constitution, may not be declared void by the courts, under the doctrine of “political question.”

In Umil vs. Ramos, the illegal warrantless arrests were justified on the ground that subversion was a form of a continuing crime—together with rebellion and similar crimes. Justice Abraham Sarmiento dissented from that decision of the Court that was packed by Cory Aquino appointees.

Another bad decision is llagan v. Enrile, decided in 1985 but not yet repudiated by the Supreme Court. In this case, the Supreme Court delimited the scope and applicability of the writ of habeas corpus by ruling that the unlawfulness of an arrest becomes moot and academic or an illegal arrest becomes “legal” once charges are filed in a court of law.

Lawyer Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and detained at Camp Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National Defense. On that same day, 15 lawyers from the IBP Davao Chapter visited Ilagan. One of the visiting lawyers, Antonio Arellano, was also arrested and detained on the basis of an unsigned Mission Order. Later, lawyer Marcos Risonar was also arrested. A petition for habeas corpus was then filed by and on behalf of the three arrested lawyers, who become known as the Davao 3 or AIR (after Arellano, Ilagan, and Risonar) on the ground that their arrests were illegal and violative of the Constitution, since arrests cannot be made on the basis of Mission Orders and that there appears to be a military campaign to harass lawyers involved in national security cases.

In Ilagan, the Supreme Court issued the Writ, required a Return, and set the petition for hearing. However, eventually, the Court ruled that the petition for habeas corpus was already moot and academic. Ilagan, Arellano, and Risonar had a warrant of arrest issued by Regional Trial Court of Davao City in relation to a criminal case of rebellion filed against them before the said court. It argued that the function of a special proceeding of habeas corpus is to inquire into the legality of one’s detention. But because the detained lawyers’ incarceration was already by virtue of a judicial action in relation to a criminal case, no matter if such case was filed more than two weeks after the arrests were made, the remedy of habeas corpus supposedly no longer applies. The SC added that questions to the legality of the arrest or lack of preliminary investigation should now be addressed to the Davao City trial court.

In his dissenting opinion on this case, then Associate Justice, later Chief Justice Claudio Teehankee wrote: “More than four agonizing months after this Court issued its near unanimous Resolution… ordering the immediate release of the three petitioners-detainees… this Court has now refused to enforce its own release order… It has instead dismissed the petition for habeas corpus for having become moot and academic because of the arbitrary filing of precipitate, vindictive, and oppressive charges against them for the capital crime of rebellion without hearing or preliminary investigation and in gross violation of their constitutional right and rudimentary requirements of due process and fair play.”

Finally, in a more recent case, the 2006 case of David vs. Arroyo, the lingering shadow of martial law on human rights jurisprudence once again nearly reared its ugly head. Fortunately, the Supreme Court took the side of the Bill of Rights and the worst outcomes were avoided.

In this case several groups challenged before the Supreme Court then President Gloria Macapagal Arroyo’s issuance of Proclamation 1017 declaring a State of National emergency. Petitioners contend that PP 1017 is void on its face because of its overbreadth. They claim that its enforcement encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a chilling effect to the citizens.

In resolving the constitutional challenge against Arroyo’s proclamation, the Supreme Court partially granted the consolidated petitions, ruling that Proclamation 1017 was constitutional insofar as it constituted a call by President Arroyo on the AFP to prevent or suppress lawless violence. However, it was unconstitutional insofar as it commands the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the president.

Citing Section 17, Article VII of the Constitution which allows the president to declare national emergencies, the Court said that Arroyo’s declaration was not unconstitutional, but the Court made sure to point out that such declaration does not authorize the president to take over privately owned public utility or business affected with public interest without prior legislation.

In David vs. Arroyo, the Supreme Court also ruled that the warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies were invalid. This was because, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating other laws, warrantless arrests were not justified. Likewise, the Court ruled that the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, were unconstitutional.

As I end this series on the long-term impact of martial law, it would be good to acknowledge that, in the time of Duterte, due process has been described as applicable only to the Judiciary and the Bill or Rights is being set aside to win the war against illegal drugs. In this time, we must be vigilant that the worst of our martial law experience will not be repeated. If not, the cycle begins again and the shadow of the Marcos dictatorship will never go away. It would then be useless to shout “Never Again!” because martial law, with such a lingering impact, never left anyway.

Facebook: tonylavs5 or Dean Tony La Viña Twitter: tonylavs

Topics: Tony La Viña , martial law , jurisprudential doctrines
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