An offense vs the Constitution
Philippine Daily Inquirer
December 13, 2017 at 5:10 am

The provisions on martial law in the 1987 Constitution are so clear — and the history behind them so unmistakable — it takes a special skill to misunderstand them.

The Duterte administration, with its cabal of compliant enablers in the chambers of Congress and its panel of pliable interpreters in the Supreme Court, has honed this special skill to an unusual degree, and the horrifying result is that we are on the verge of a year-long extension of the imposition of martial law in Mindanao.

Martial law, as we know from our painful experience during the Marcos years, is the imposition of military rule over the civilian population.

Precisely because of the calamitous Marcos era, the 1987 Constitution retains the commander-in-chief powers of the president, which include the option to declare martial law, but under much more stringent conditions.

Article VII, Section 18 begins: “The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.”

Both Congress and the Court have a role to play in the use of the martial law option, specified in the same section. But all three branches of government are constrained by the Constitution’s conditions, which are straightforward: First, there must be an actual invasion or rebellion, and second, public safety requires the placing of the Philippines or any part thereof under martial law.

President Duterte issued Proclamation No. 216 on May 23, after members of the Maute group and an Abu Sayyaf faction tried to occupy Marawi City in an attempt to create a province of the so-called Islamic State.

The proclamation was controversial from the start, because it suspended the privilege of the writ of habeas corpus and imposed martial law in all of Mindanao, not just Marawi City.

But the administration’s super-majorities in the Senate and the House of Representatives endorsed the proclamation, and after the inevitable cases were filed at the Supreme Court, a majority of justices ruled that the proclamation was constitutional.

After the initial period of 60 days lapsed, Congress extended the scope of the proclamation to the end of the year.

But after five months of heavy fighting, the conflict in Marawi City is over. Why does the Duterte administration seek to extend the imposition of martial law by an entire year?

It is true that the threat of radicalization remains; the carcass of the central district of Marawi City is by itself a potent source of resentment and a tool for recruitment.

But the Constitution requires an actual invasion or rebellion. It does not allow the use of the martial law power on speculation or for preventive purposes. (The first of the commander-in-chief powers, the calling-out provision, should suffice.)

It may be argued that public safety requires the extension, but again the Constitution is clear: both actual rebellion and public safety conditions must be met.

In an attempt to meet the actual case condition, the President’s letter to the Senate and the House of Representatives includes the communist insurgency as one of the factors necessitating extension.

New People’s Army rebels have “intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians, and private entities, as well as guerrilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country’s democratic form of government with communist rule.”

This is true, but misleading.

The intensification comes as a direct result of the administration’s withdrawal from the peace process. The insurgency has been much reduced since Ferdinand Marcos fled the country in 1986, without the need for martial law.

And, not least, the communist insurgency was not part of the original rationale for the imposition of martial law. How can it suddenly become part of the rationale for its extension?

Extending the imposition of martial law in all of Mindanao, without both necessary conditions being met, is an offense against, a violation of, the very Constitution our officials and our soldiers are sworn to defend.

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