The matter of martial law is covered by Article VII of the 1987 Constitution.
At the outset, it must be stated that the President has taken an oath to faithfully and conscientiously fulfill his duties, “preserve and defend the Constitution, execute the laws, do justice to every man”, and consecrate himself to the service of the Nation. (Section 5 of Article VII of the 1987 Constitution).
Learning from the horror, terror and tyranny of martial law of The Dictator Marcos from 1972 to 1986, Section 18 of Article VII of the 1987 Constitution now provides for broad and specific limitations to the power of the President to proclaim a state of lawlessness, to suspend the privilege of the writ of habeas corpus, and to declare martial law.
(1) The President, as the Commander-in-Chief of all armed forces of the Philippines, whenever it becomes “necessary”, may “call out” such armed forces to prevent or suppress “lawless violence”, “invasion”, or “rebellion”. (“Call out” clause).
To do this, he proclaims a “state of lawlessness” on a “national” or “local” scale as may be warranted by the circumstances.
(2) Section 18 of Article VII of the 1987 Constitution provides that in case of “invasion or rebellion” and “when the public safety requires it”, the President may “suspend the privilege of the writ of habeas corpus” or place ”the Philippines” or “any part” thereof under “martial law” for a period “not exceeding sixty (60) days”.
(a) A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order. (See Rule 102, Rules of Court).
(b) Martial Law is the exercise of government and control by military authorities over the civilian population of a designated territory.
It is an extreme and rare measure used to control society during war or periods of civil unrest or chaos.
The Commander-in-Chief becomes the head of the entire government, thus removing all powers from the previous Executive, Legislative, and Judicial branches of government.
(c) Invasion is the act of forcefully entering the territory of another state as enemy armed forces with hostile intent.
It is an act of incursion of by hostile armed forces to conquer and plunder another state.
(d) Rebellion is the act of violent, open, armed and organized resistance to an established or duly constituted government. (See Article 134, Rev. Penal Code).
(e) When an invasion or rebellion occurs, at the option of the President, he may decide in the meantime not to suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law if he feels that public safety is not yet placed in immediate danger.
Instead, he may merely order the armed forces to deal with the invasion or rebellion in the ordinary course of duty (“call out” clause, supra).
(f) If in the mind of the President the invasion or rebellion poses an immediate and serious peril to public safety, he may suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law for a period not exceeding sixty (60) days.
(g) A mere state of lawlessness is not a constitutional ground to suspend the privilege of the writ of habeas corpus or to declare martial law.
(h) In such a case, the remedy of the President, as Commander-in-Chief is to invoke the “call out” clause, supra, that is, to mobilize the armed forces to restore peace and order.
(3) Further, Section 18 of Article VII of the 1987 Constitution provides that “within forty-eight (48) hours” from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President “shall submit a report in person or in writing to the Congress.”
· Furthermore, it provides that Congress, “voting jointly”, by a vote of at least a majority of all its Members in regular or special session, “may revoke” such proclamation or suspension, which revocation “shall not be set aside by the President”.
· Finally, it provides that upon the initiative or recommendation of the President, the Congress “may extend” such proclamation or suspension “for a period to be determined by the Congress”, if the “invasion or rebellion shall persist and public safety requires it.”
(a) The President has the constitutional duty to report to Congress within 48 hours.
(b) Congress may revoke the suspension of the privilege of the writ of habeas corpus or the declaration of martial law.
(c) The President has no constitutional power to set aside or reverse such congressional revocation.
(d) Congress may extend the period of the suspension of the privilege of the writ of habeas corpus or the declaration of martial law for another fixed period “if the invasion or rebellion shall persist and public safety requires it.”
(e) The Constitution does not allow an “indefinite extension.”
(f) Only Congress has the constitutional power to extend the period.
(g) The President has no constitutional power to extend the period.
(4) It must be noted that Section 18 of Article VII of the 1987 Constitution provides that 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, and must promulgate its decision thereon “within thirty days from its filing.”
(a) The “political question” doctrine cannot stop the Supreme Court from determining the “factual basis” (as against the “presidential wisdom”) for the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof.
(b) Normally, if a petition is covered by the political question doctrine it is not deemed “justiciable” by the courts; hence, the courts are inappropriate forums to hear the case. It is inapplicable in this case.
(c) The appropriate proceeding referred to in Section 18 of Article VII is the “special action for certiorari, prohibition and mandamus with urgent prayer for temporary restraining order” under Rule 65 of the Rules of Court.
(d) It is usually filed with the Supreme Court because of the paramount and precedent-setting constitutional issues involved.
(e) The petition may be filed with the Supreme Court by “any citizen.”
(f) Locus standi (legal standing) is granted by the Constitution to “any citizen” to commence such a special civil action.
(g) The Supreme Court must resolve the petition within thirty (30) days from filing thereof.
(5) Most importantly, Section 18 of Article VII of the 1987 Constitution provides that a state of martial law
· does not suspend the operation of the Constitution,
· nor supplant the functioning of the civil courts or legislative assemblies,
· nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function,
· nor automatically suspend the privilege of the writ.
(a) The 1987 Constitution is not suspended, revoked or superseded by martial law.
(b) The President/Commander-in-Chief has no constitutional power to suspend the operation of the 1987 Constitution.
(c) The Judiciary and the Legislature are not supplanted, suspended or abolished by martial law.
(d) The President/Commander-in-Chief has no constitutional power to suspend or take over the operation of the Judiciary and the Legislature.
(e) Where the civil courts are able to function, the military courts and the military agencies are not granted jurisdiction over civilians.
(f) The Supreme Court determines that fact of inability of the courts to function in affected areas.
(g) The consent of the Supreme Court is needed to allow military courts or military agencies to exercise jurisdiction over civilians in such areas.
(h) The President/Commander-in-Chief has no constitutional power to vest the military courts and military agencies with jurisdiction over civilians.
(i) Martial law does not automatically suspend the privilege of the writ of habeas corpus.
(j) The President/Commander-in-Chief must issue a separation proclamation suspending the privilege of the writ of habeas corpus.
(6) Section 18 of Article VII of the 1987 Constitution further provides that the suspension of the privilege of the writ of habeas corpus shall apply only to persons “judicially charged for rebellion or offenses inherent in or directly connected with invasion.”
· It further provides that during the suspension of the privilege of the writ, any person thus arrested or detained “shall be judicially charged within three days”, otherwise he shall be “released.”
(a) The scope of the suspension of the privilege of the writ of habeas corpus is limited by the 1987 Constitution to “rebellion or offenses inherent in or directly connected with invasion.”
(b) The 1987 Constitution provides that suspension of the privilege of the writ of habeas corpus shall apply only to persons “judicially charged”.
(c) During the suspension of the privilege of the writ, any person arrested or detained must be judicially charged within “three days”. It not, he shall be automatically “released.”
(d) The President/Commander-in-Chief has no constitutional power to indefinitely detain a citizen.
(e) The military must judicially charge the arrested citizen within three (3) days. If not, the military must immediately release him.
(f) Otherwise, the responsible military officials shall be criminally liable for “arbitrary detention”, “delay in the delivery of detained persons to the proper judicial authorities”, or “delaying release”, as the case may be, under Articles 124, 125, and 126 of the Rev. Penal Code.
Atty. Manuel J. Laserna Jr.
Laserna Cueva-Mercader Law Offices
Las Pinas City, Philippines
September 24, 2016
