Martial law

by Fr. Ranhilio Callangan Aquino
Manila Standard – www.manilastandardtoday.com
Monday, December 14, 2009

Almost as soon as the Maguindanao massacre occurred, TV and radio commentators commenced their usual routine of shadow-boxing. They started mouthing phrases like “white-wash”, “cover-up” and “term extension” even before investigators could announce preliminary results. I think that much of the discussion is muddled by a priori imputations of malice, ill-will or ulterior motive on the part of the President. The legal presumption of regularity in the performance of official duties should be translated into civic culture and, in relation to the ongoing legislative debate on the presidential proclamation, legislative attitude. A lucid discussion of the important constitutional issues cannot proceed if we start with the very opposite of what is known in the theory of discourse as the benevolent a priori—the attribution of sincerity on the part of the other party.

I am not privy to the information that may have been available to the President when she declared martial law. Definitely she has access to information that the intelligence community makes available to her to which the general public has no access and to which it should have no access. It is information though that must be made available to Congress as it deliberates on either the revocation, continuance or extension of martial law, and to the courts, when an appropriate case is brought, raising the issue of the validity of the proclamation. It is therefore not for me to preempt Congress (that did not comply with the period the Constitution prescribes for it to convene after martial law is declared) and the Supreme Court before which, I understand, cases questioning the imposition of martial law are now pending.

Such positions as “Never more to martial law!” are to my mind unconstitutional. They are sentimental; they have the power to stir the uncritical to frenzied support and they are not difficult to memorize, but they really fall short of the measure of rationality. The power to declare martial law is a power expressly granted the Chief Executive by the Constitution of the Republic. To maintain such a position as “Never more to martial law!” is to deny the President the exercise of a power granted her, and, more importantly, to deprive State mechanism of a weapon it has in the face of rebellion or invasion.

Whatever may be our feelings about the late President Ferdinand Marcos, he was correct in his statement of political theory as well as constitutional law when he asserted that a constitutional democracy provides an in-built mechanism to the State by which to defend the institutions of democracy when these are threatened. One of these is martial law.

While Congress does indeed possess the power to revoke or to extend the proclamation of martial law, the exercise of such power should be with due deference to the role of the Executive in the constitutional structure and organization of our Republic. The power to revoke is a check against arbitrariness; it should not be used to negative the powers of the Executive in the face of a pressing national crisis, a task the Constitution assigns to the Executive.

In fact, there are now so many limitations on the President in respect to the declaration of martial law that it is difficult to determine exactly what powers she wields under martial law. Obviously there is jurisprudence, both local and foreign (the latter, more important to my mind) on the powers of the Executive. The very fact that the Constitution is silent as to the exact powers a President wields under a state of martial law indicates to my mind the juridical and constitutional tradition of allowing the President the latitude she needs to cope with the emergencies of rebellion or invasion.

As for the complaint of the military that detentions or arrests they make are neutralized by petitions for the issuance of the writ of amparo, although the Constitution is clear that the privilege of the writ of habeas corpus is not automatically suspended with the declaration of martial law—and therefore, neither the writ of amparo—it is also clear from the rule on the writ of amparo that its reliefs will not lie when there is a legal basis for the apprehension or detention of a person. It is my position that an arrest or a detention under the martial law powers of the President is one such legal basis.

It is not correct to limit martial law to “calling out the armed forces” to suppress lawless violence. The “calling out power” is a distinct power one of the grounds of which is “lawless violence”—that, in itself, is not a ground for the declaration of martial law. I have no doubt that the declaration of martial law, ipso facto, is an exercise of the calling out power but it should be more—and what this more is should be a matter of constitutional theory and tradition, political practice, as well as jurisprudence insofar as this is not incompatible with present constitutional provisions.

What constitutes a rebellion? There is, to be sure, a definition of rebellion provided by the Revised Penal Code but I am sure that no one will insist that the elements of rebellion as so defined must be proved beyond reasonable doubt to justify the declaration of martial law. There are some matters that must be left to the appreciation of the President as well as to her discretion. This is not a question of power, principally. It is a question of allowing government to operate within constitutional parameters. On several occasions, I have expressed the fear that the very fetters that the crafters of the 1987 Constitution have placed on an incumbent president who declares martial law constitute a singular threat to the continued existence of a constitutional regime. When a constitution makes it difficult for a political leader to hold on to the rudder of the ship of state amid turbulent waters, the temptation is great to dismantle the fetters that the constitutional safeguards constitute. And there is historical proof of this. Prime Minister Mahathir of Malaysia, for example, found that judicial review was the ready weapon of those who opposed his blueprint for the development of his country. He took the detour—and caused the powers of the judiciary to be re-defined to exclude judicial review. I am not commending his action. I am only pointing to the danger of confining executive action inordinately. And how often has Thailand re-written its constitution after each coup? Democracy survives when it makes available to those who tend it the means of its own survival.

Before we start yakking about cover-ups, white-washing (white-washes?) and term-extenders, let us have the reasons of the Palace first and, when the Court so orders, for the arguments of the Republic in support of the declaration of martial law.