Dean Tony La Viña is right. It is easier to say what martial law is not—since the Constitution goes to considerable length at saying what cannot be done—than to say that it is. It then is no wonder that people ask why it should have been declared since there was already a declared state of lawlessness—and an exercise of the “calling-out” powers.
My good friend and colleague, Daryl Bretch M. Largo’s—Daryl is a professor at the top-performing University of San Carlos University Law School—post strikes with accuracy: Much of the discourse is only a simulacrum of discourse because many are not informed, and they who are supposed to be better informed MIS-inform.
Throughout the day’s interviews, these are some the points I shared:
1. The martial law of 1972 and the martial law of 2017 cannot be the same, because the constitutional provisions are different.
2. The privilege of the writ of habeas corpus is very much in place. Those wrongfully arrested and detained can go to court, ask the court to command that their persons be produced before the court and should it be determined that their detention is unlawful, they may enjoy the privilege of the writ—the order granting their release. To suspend the privilege of the writ, the President has to issue a separate order.
3. No rights are abrogated. The only warrantless arrests and warrantless searches allowed are those allowed by the rules that apply at all times.
4. Whether or not the Maute commotion is a rebellion is left by the Constitution to Executive determination—because of the President’s office as Commander-in-Chief. HOWEVER, the issue may be raised before the Supreme Court in a proper action, and the matter is then dealt with as justiciable.
5. One of the exceptions to the rule that a search warrant is needed prior to a search is a “search under exigent circumstances.” Martial law is an exigent circumstance. And so, some forms of warrantless searches are permissible—but these will still be within the permissible exceptions.
6. Because of Martial Law there will be military participation in the day-to-day affairs of civilian government that is NOT however replaced.
7. There will also be increased military presence, and probably an increased number of checkpoints—all of which are constitutional. There may also be curfew, which is likewise constitutionally permissible. And because of heightened military presence, there will also be heightened military surveillance—which may include more Terry searches which, jurisprudence has laid down, do not even demand probable cause but merely reasonable suspicion.
8. The Chief Justice has directed the courts to continue in operation. Should circumstances so deteriorate that civilian courts can no longer operate (either because the judges flee in terror or because the belligerent circumstances that make their operation impossible), then military courts or commissions may be created—but it seems clear that we are a long way from this yet.
9. Congress can concur with the declaration of Martial Law and keep it in place. It may also set it aside. It may finally extend the period beyond sixty days.
10. The President cannot declare martial law HANGGANG SAWA. There is a default setting that puts its lifespan at 60 days unless extended by Congress.
11. Martial law provides the circumstance for triggering the operation of Art. XII, Sec. 17 —the take-over by the State of public utilities or businesses impressed with public interest, for a LIMITED PERIOD…but this is NOT a presidential prerogative, but a Congressional power.
But now that Presidential Proclamation 261 left no doubt that the privilege of the writ of habeas corpus has also been suspended, it is good to be equally clear about that as well.
Don’t say “Suspension of the writ.” The writ is the order of the Court. What you are after when you file a petition for the writ of habeas corpus is “the privilege of the writ”—which, essentially, is your release from detention when it is determined that your detention has no legal warrant.
Under Article VII the suspension will apply only to cases of rebellion or acts essential to or directly related to invasion (murder, homicide, arson, et al committed by the invaders). There is no such thing as the crime of invasion. And even when the privilege of the writ is suspended, you cannot be thrown into some secret cell and left to rot—because charges have to be filed against you within three days—or else, you get released. In effect, the suspension of the privilege only gives the enforcers of the law more time to detain you than is usually allowed before they become liable for arbitrary detention.
But there is a SINISTER effect to the suspension of the privilege of the writ for IN EFFECT, it allows for warrantless arrests, because the only way to obtain relief against a warrantless arrest is by applying for the writ of habeas corpus, but if the privilege of the writ is suspended, then one has really no recourse against a wrongful warrantless arrest—at least for the period of three days (within which time, so much can happen).
I personally do not think that the writ of amparo will be available—because the Constitution precisely allows this emergency power to the Executive to cope with an emergency—and the constitutional intendment cannot be defeated by recourse to a Court-instituted rule like that on the writ of amparo. In effect, when the privilege of the writ of habeas corpus is suspended, the privilege of the writ of amparo is likewise suspended—otherwise the suspension of the privilege of the writ of habeas corpus would be effete.