DUBAI: A flurry of world headlines—from the aftermath of the terrorist attack in Manchester, to German Chancellor Angela Merkel’s call on her European allies to stop relying on “others,” following the North Atlantic Treaty Organization meeting in Brussels last week, to the latest controversy surrounding US President Donald Trump’s son-in-law’s relations with the Russians—have caused much of the world’s attention to shift away from the hot-button issues in the Philippines. But some Filipinos who spotted me at the Dubai international airport on Monday on my way home from Budapest were anxious to know more about President Rodrigo Duterte’s martial law in Mindanao, whose coverage he threatens to extend into the Visayas and Luzon.
I had to confess I was probably the least informed.
They expressed serious concern over the fighting in Marawi, which, according to the Gulf News on Monday, had already caused nearly 100 deaths in six days. But they showed greater concern over DU30’s reported statement that he would ignore what the Congress or the Supreme Court may have to say about his proclamation. What does this mean?
Under the Constitution, within 48 hours after the proclamation of martial law or the suspension of the privilege of habeas corpus, the President must report to Congress in person or in writing. The Congress, meeting in joint session, can either approve or reject the proclamation or suspension by a simple majority vote of all the members of the two Houses, and the President cannot set aside the rejection. The Constitution expressly provides that the proclamation of martial law does not suspend the operation of the Constitution.
Antagonizing the Constitution
I have been away for six days, and have not read a single news item in the Internet about the President complying with this provision. The Filipinos at Dubai airport were therefore right to ask, Has the President decided to ignore the Constitution? If so, who can force him to comply with it? Given his complete control of the Congress, there seems no risk of the Congress rejecting his proclamation. There is, therefore, no reason for him to make that provocative statement. But why is he saying what he’s saying? It unnecessarily puts him outside the Constitution.
The exercise of martial law has come under severe constitutional limitations since Ferdinand Marcos used it in 1972 to turn back the communist insurgency in the Philippines. Under the 1935 Constitution, which became the basis of Marcos’s proclamation, actual invasion or rebellion did not have to exist for the President and Commander-in-Chief to put the country or any part thereof under martial law or suspend the privilege of the writ of habeas corpus.
Mere “imminent threat” thereof was sufficient to justify the President’s action; Marcos could have gone ahead without the rampaging nationwide rebellion. Congress did not have to concur in the President’s proclamation or suspension either; neither was the Supreme Court expressly authorized to review the factual basis of the proclamation or suspension. Through General Order No. 1, Marcos put the entire government, including the judiciary, under his control; and yet he submitted himself to the authority of the Supreme Court of his own volition.
That would be a tough act to follow.
Where DU30 is correct
From one particular perspective, DU30’s objection deserves a hearing. The so-called “reform” under the 1987 Constitution clearly castrated the original martial law provision in the 1935 and 1973 Constitutions. It put in some illogical and impractical details, and allowed so many other extraneous players to share in the exercise of what is supposed to be a paramount and exclusive Commander-in-Chief provision. After saying that martial law may be permitted only if there is an actual invasion or rebellion, it proceeds to limit the proclamation to 60 days, mindless of the clear possibility that the invasion or rebellion, if real, could still be raging after 60 days.
Then it provides that Congress must approve or reject the proclamation within 48 hours, and recommend its extension if needed, after 60 days. This makes Congress the actual author of martial law, even if, in case of an actual invasion or rebellion, it may not even be in a position to assemble a quorum immediately after the proclamation, or 60 days thereafter.
DU30 is right to call this provision stupid, because there is no other word for it, and there are eminent legal luminaries who share this position. A university lecture given by former Justice Secretary Estelito Mendoza, arguably the country’s top lawyer, at the University of the Philippines not too long ago critiqued this so-called constitutional reform, precisely to point out where it has failed.
The provision, as rewritten, is a clear reaction to martial law under Marcos, which lasted from 1972 until 1980, and put the political opposition out of commission during that time. It has no constitutional value whatsoever. But it is too late to rewrite it now.
Since DU30 has already proclaimed martial law, and he had no other way of doing so than to use the present text of the Constitution, he must comply with the letter of the provision. The law may be inept and incompetent, but it is the law, to paraphrase the popular legal maxim. This is what we get for having revisers of the Constitution who were more eager to get back at Marcos than to come up with a truly worthy Constitution.
Exchanging martial law for the drug killings
Because Marcos’s martial law ultimately failed to neutralize its enemies and extirpate its causes—the CPP/NPA/NDF survived the fall and death of Marcos and the dissolution of the Soviet communist empire, and is even now part of the DU30 government—they have had no compunction in demonizing martial law as a constitutional solution to a national security problem, as though they were not the ones who made it necessary in1972.
DU30 will have to contend with this dark image, promoted by both his communist friends and their “yellow” allies. Right now, the controversy over his martial law in Mindanao seems to have taken so much away from all the publicity coming from the summary killings in the brutal drug war.
This seems to validate the thesis of some propagandists that to get rid of a nasty propaganda problem one must invent a much bigger one. This could work up to a point. But whatever DU30 does, he must make sure that his martial law in Mindanao does not become the final burying ground of his administration.