Martial Law: What It Is and What It Is Not

Much fear and confusion have been brought about by the crisis in Marawi City and the subsequent declaration of President Duterte of Martial Law for the regions in Mindanao. Let’s clarify a few things.

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One of the powers of the President as the Commander-in-Chief is the declaration of Martial Law. This is provided under the 1987 Constitution, precisely at Article VII, Section 18. The President may proclaim over the entire Philippines or any part thereof.

The declaration of Martial Law over an area places that particular area under the control of the Armed Forces of the Philippines. It is called “Martial Law” because it places the country or a part thereof under laws which would operate in a state of war, i.e., military laws. The word “martial” traces its origin from the Roman god of war, Mars.

What it is not: A power that may be invoked at the whim of the President.

What it is: A power that requires the presence of an actual invasion or rebellion.

What it is not: A power that may be invoked when there is a threat of rebellion.

What it is: A power that requires an actual rebellion or invasion, and not merely a threat.

In Sanlakas v Executive Secretary, the Supreme Court said that the Constitution requires the concurrence of two conditions, namely,

  1. an actual invasion or rebellion, and
  2. that public safety requires the exercise of such power.

What it is not: A declaration that disrespects our Constitution.

What it is: A power granted by the Constitution, within the control of the Constitution, and which does not stop the operation of the Constitution.

What it is not: A lack of the rule of law.

What it is: A suspension of civil laws, the takeover of military laws for safety and security, but civil courts will still function.

The following may not be done in a declaration of martial law:

  1. Suspend the operation of the Constitution.
  2. Supplant the functioning of the civil courts and the legislative assemblies.
  3. Confer jurisdiction upon military courts and agencies over civilians, where civil courts are able to function.
  4. Automatically suspend the privilege of the writ of habeas corpus. However, the President may suspend the writ, but the suspension must be express, i.e., it is not deemed automatically included with the declaration of Martial Law.

What it is not: The Martial Law is a dictatorial and tyrannical power of the President.

What it is: The Congress and the Supreme Court takes part in checking that the declaration of Martial Law is proper.

What it is not: Martial Law is a one-way ticket to an endless regime of a despot.

What it is: The Constitution provides that the Martial Law should only have a 60-day validity, which may be extended, subject to checks and balances.

The fear is understandable. The Martial Law imposed by former President Ferdinand Marcos was indeed marked with abuses. It was limitless as to the period. It was the sole prerogative of the President.

However, with the framers of the 1987 Constitution keeping our past mistakes in mind, they have set sufficient safeguards to prevent this abuse of power of happening.

As a measure of checks and balances, the Congress takes part.

Here’s what happens after:

Within 48 hours from the proclamation or the suspension, the President shall submit a report, in person or in writing, to the Congress (meeting in joint session of the action he has taken).

The Congress shall then vote jointly, by a majority of all its members.

The Congress may:

  1. Revoke such proclamation or suspension, or
  2. Extend the declaration of Martial Law beyond 60 days. However, Congress can only so extend the proclamation or suspension upon the initiative of the President.

Congress may revoke the proclamation of martial law or suspension of the privilege of the writ of habeas corpus before the lapse of 60 days from the date of suspension or proclamation.

The Supreme Court, likewise, is empowered to exercise its power of judicial review over the declaration of Martial Law. Accordingly, the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ, or the extension thereof.

However, in Fortun v. Macapagal-Arroyo, the Supreme Court expressed that the constitutional validity of the declaration of martial law is first subject to review by the Congress. Continuing, the Court said that it may step in to review the factual basis “if the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it.”

What it is not: An immense power only the President can stop.

What it is: A power controlled by the Constitution that may be stopped by the President, the Congress, or the Supreme Court when appropriate.

There are four ways by which Martial Law may be lifted.

  1. The President himself may lift Martial Law.
  2. The declaration of the President may be revoked by Congress.
  3. The Supreme Court may nullify the President’s declaration.
  4. After the lapse of 60 days, the declaration is deemed to have automatically lapsed.

However, as a caveat, is abuse on the declaration of Martial Law totally eliminated? The answer is negative. If the Congress and the Supreme Court do not perform their constitutional duties, abuse may indeed be possible. If the Congress and the Supreme Court are unduly influenced by the President, the President’s power may become uncontrollable.

All we can do is hope for the responsible declaration of Martial Law on the part of our President, and pressure our Congress and our Justices at the Supreme Court to stay faithful to their oaths to the Constitution and to our beloved country. After all, we all want a better Philippines.

Final word: In times of confusion, spread information.