Martial law is abnormal. If all things were as they ought to be, there would be no need to declare martial law. That is exactly the reason that it is one of the emergency powers vested on the president, one to which strict constitutional checks are applied. Martial law cannot be the way government is “normally” run. Even in the diluted form that is ordained by the 1987 Constitution, martial law is still meant to allow the government to cope with abnormality. To transform it into the way things are normally done is to pervert it and to lead government into a precipitous metamorphosis.
While the Supreme Court was hearing arguments on the first challenge to martial law in Mindanao, this question was asked: What did martial law actually effect that the “calling out powers” did not? In sum, it is the increased presence and marked participation of the military in civilian government that seems to make of martial law a more draconian measure available to the chief executive. It is, however, in the implementation—what soldiers and policemen think their powers are and what civilians think their rights have become—that is the real measure of the effect of martial law. I recently listened to one very articulate lady from Mindanao report that under the martial law regime that has been in place now for some time—thanks to the benignity of Congress—people think that their right to file cases against abusive men and women in uniform has been pared down. While, legally, there may really be no basis for that belief, the fact is that if the locals of Mindanao are made to believe that martial law has created a class of virtual Platonic guardians responsible only to their commanders but not accountable to the people, then that cannot be good for Mindanao and for the country at all.
And now, it seems that we are in for a one-year extension of martial law. I do not accept Senator Franklin Drilon’s position that because the Constitution sets the duration of martial law at 60 days, there is no Constitutional warrant for extending it by a year. Textually, the Constitution allows Congress to extend it to a year. That is exactly why the Executive Secretary appeared before a joint session of Congress to present Malacanang’s case for an extension.
My problem with this generous grant of power to the chief executive lies elsewhere. There are only two legal bases for martial law: invasion and rebellion. Since there is no claim of an invasion, we can set that ground aside and pay heed only to rebellion. The government has announced that Marawi has been liberated, and that the leaders of the city’s siege have been “neutralized”—consigned to eternity. However, the Executive Secretary informed Congress that government intelligence was convinced that a rebellion is actually still in progress—since both terrorist groups associated with militant Islam and the CPP-NPA rebels—are still in a state of rebellion, have declared that there would be no let-up in their attempts to overthrow the government and have figured in occasional skirmishes with government forces.
Even assuming the truth of all these averments, my doubts are not allayed, because there is an important phrase in the Constitution that qualifies invasion and rebellion: “when public safety requires it.” When the means ordinarily available to government, such as the mobilization of the armed forces, increased police presence and vigilance and the coopting of a civilian militia can cope with the rebellion that government claims to persist, then really, there is no justification for martial law. So government is burdened to prove two matters of fact: first, that there exists an actual rebellion; second, that public safety requires the declaration of martial law. I am not sure that it has made its case on these twin requirements satisfactorily.
Threat of a rebellion, conspiracies in the offing to take up arms against the government, seized documents pointing to a plot to topple the established order do not constitute rebellion. Significantly, the phrase “imminent danger thereof” that appeared in the 1935 Constitution has been excised from the 1987 Constitution. Nothing short of an actual rebellion is what the fundamental law requires.
I am not only advocating fidelity to a printed page—although that page is no ordinary one. It is, after all, the Constitution. I am, more importantly, reiterating what it is that we as a people opted for when we ratified the 1987 Constitution and the constitutions before it: We made a sovereign decision that we would have a government civilian in character and democratic in structure and operation—hence, marked by separation of powers and checks and balances.
Martial law, in some way, alters the calibration—and that is the reason that there are constitutional limits and legal parameters. That too is the reason that aside from Legislative concurrence, the factual bases are now justiciable issues that the Supreme Court may pass upon.
While we are at it, let me return to a thesis I earlier advanced.
When the Constitution allows that the declaration of martial law be challenged “in an appropriate proceeding by any citizen,” I read the Charter as prescribing that the citizen make use of one of the available proceedings allowed by the rules to challenge Martial Law—and clearly, this would be the office of the prerogative writ of certiorari. In law as in science, it is salutary to abide by the canon of parsimony—avoid unnecessary “special cases”, and that is exactly what the Supreme Court did when it ruled that a case challenging the declaration of Martial Law was “sui generis”. I can understand why it earlier held extradition cases to be sui generis.
They in fact are. But questioning the declaration of Martial Law?
That is, to my mind, challenging government to show that it did not abuse its constitutional discretion in declaring Martial Law. So, why the reticence about categorizing it as a certiorari proceeding?
Again, this is not merely a matter of procedural nicety. It is rather keeping the branches of government within their proper spheres. The Supreme Court cannot arrogate unto itself the task of the Executive—and the Constitution allocates to the Chief Executive the power to determine whether martial law should be declared or not. The Supreme Court is not some kind of “second consul” like ancient Rome had that checks on the first consul’s determination. It is limited to
determine whether or not the President has acted whimsically and capriciously. That is to say that while the justices may disagree about whether martial law should be declared or not, absent any showing of whim, caprice or arbitrariness that is truly arrant and palpable, whether or not martial law should be declared should be an Executive decision—subject at all times and in every manner to the requirements of the Constitution. And in the case of a one-year extension of martial law, I still have to be convinced!