Martial law in Mindanao: The fight in court and Congress

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Ricardo Saludo

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. Within forty-eight 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. The 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.            
— Philippine Constitution of 1987, Article VII, Section 18

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WAS President Rodrigo Duterte right in placing all of Mindanao and nearby islands under martial law?

By tonight, as required by the above-quoted provision of the Constitution, President Duterte should submit to Congress “a report” presumably explaining why he declared martial law in the south, and detailing the events and conditions providing the basis for his proclamation.

Under the charter, martial law can be imposed only in one of two situations: invasion or rebellion. Presidential Spokesperson Ernesto Abella, speaking to media Monday night at the Four Seasons Hotel in Moscow, where the President was visiting, said that rebellion was the reason for martial law.

There certainly are ongoing insurgencies on the island: one by the New People’s Army, military arm of the Communist Party of the Philippines and its National Democratic Front; and another by the Moro Islamic Liberation Front, splinter group of the Moro National Liberation Front.

But the MNLF has been at peace with the government since it signed a final peace accord in 1996, while the CPP-NPA-NDF and the MILF are in peace negotiations, with ceasefires in place. Those are not the rebellions for which President Duterte placed Mindanao under martial law.

Rather, the proclamation was prompted by an attack on Marawi City by the Maute extremist group, which openly supports the brutal Islamic State terrorist regime fighting the governments of Syria and Iraq.

There have also been attacks, abductions, bombings and other acts of violence undertaken by both Maute and the older Abu Sayyaf Group, which has also declared support for and affiliation with IS.

Once bandits, now rebels
So, do the Maute and Abu Sayyaf violence constitute rebellion? Constitutionalist and former Commission on Elections chairman Christian Monsod doesn’t think so. Rebels seek to overthrow the duly constituted government or supplant its rule in their area, as the CPP-NPA and the MILF have sought.

However, the Maute and Abu Sayyaf terrorists, argues Monsod, have no avowed goal of bringing down the national government. Hence, they are not committing rebellion, but rather lawless violence, for which the Armed Forces of the Philippines has long been mobilized. Indeed, one has not heard of any case of rebellion filed against Maute or Abu Sayyaf extremists (though that doesn’t necessarily mean such charges can’t be filed).

So, will Congress void Duterte’s proclamation of martial law in Mindanao? Not likely.

For starters, his PDP-Laban party and its allies have a hammerlock on the legislature, and most will abide by the President’s wish. And on the off-chance that there may be a Senate majority opposing Duterte, the joint voting on martial law stipulated by the Constitution means the 296-strong House of Representatives can easily outvote the 22-member Senate (now without Leila de Lima, in jail without bail on drug charges, and Alan Peter Cayetano, recently resigned to become Secretary of Foreign Affairs).

Also, government lawyers can argue that the Maute and Abu Sayyaf groups do aim to supplant the Philippine government, since their IS-inspired objective is to establish an Islamic caliphate, for which the Islamic State is also fighting in the Middle East.

Whether or not Congress strikes down Duterte’s declaration, opponents of martial law will almost surely go to the Supreme Court to question the factual basis for the proclamation, as allowed by the Constitution. Now, will Theirs Honors the magistrates rule that the Commander in Chief got his facts wrong?

Four and a half decades ago in 1972, then President Ferdinand Marcos’ Proclamation 1081, placing the entire Philippines under military rule, was questioned in the Supreme Court. The justices affirmed Marcos’s martial law, ruling that the judiciary did not have the power to review a political and security judgment call by the co-equal Executive branch.

In 2009, seven petitioners also went to the high court, contesting then President Gloria Arroyo’s proclamation of martial law in Mindanao’s Maguindanao province, to suppress and bring to justice the Ampatuan warlord clan and its private army, after they allegedly murdered 57 people in an election-related attack in November 2009.

Three years later, the Supreme Court ruled that the petitions were moot and academic, since Arroyo lifted martial law eight days into its stipulated 30-day period, before Congress could review it. Had it been reviewed, the government’s argument would have been that the Ampatuans were seeking to supplant its authority in the province.

If martial law works
Far more than legalities, however, what would determine whether Duterte’s martial law will be affirmed and rescinded, is public support and its conduct on the ground.

With the President’s lofty ratings in survey after survey, including a Social Weather Stations poll reported this week, opposing him on peace and order issues won’t win kudos for politicians.

However, if martial law fails to stop the extremists, or if abuses, corruption, and unlawful violence proliferate under the military, then public, political and media opposition would mount, and even President Duterte may lift it, and try another tack.

On the other hand, if his martial law proves victorious against terrorism, while largely benign to the populace, then it could very well win support for use elsewhere.

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6 Comments

  1. I think only monsod and the writer think that there is no need for martial law…better to of you go to Marawi so it will enlighten your mind.

  2. arnel amador on

    no wonder, they thrive during the yellow regimes. they left a lot of trashes which meyor digong is now trying to clean up. listen to what he said. he ran for ph prez because nobody from those candidates ever mentioned about mindanao; the time bomb about to explode. monsod is one of the yellow key players. he has no clue. after 3 decades he still is!

  3. I am not from Philippines so I cannot comment on the internal laws of the land, but what is happening now is clearly a great threat, so martial law is both reasonable and necessary. I cannot see how anything else is possible, if armed rebels are taking over a city how can you not do this ?

  4. IANAL but you may be mistaken. Rebellion is not just to “seek to overthrow the duly constituted government or supplant its rule in their area”.

    Rebellion as defined in Article 134 of the Revised Penal Code is: “committed by rising publicly and taking arms against the government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

    Emphasis is on publicly taking arms for removing allegiance to laws (Government authority) of a territory. Maute’s brandishing of ISIS flags and weapons in the open satisfies the element of publicly taking arms and pledging allegiance to another flag. Shooting/killing officers of the law (police) and soldiers is not mere “lawless violence”, it is outright defiance and effectively removal of Government authority from Marawi: that completes the elements of rebellion.

    It may be the Supreme Court that has the authority to define what rebellion is but for the purpose of public discussion (pending decision), I believe that opinion writers should be careful enough to follow the proper process of interpreting the law. Where not explicitly defined, terms in the Constitution should be interpreted based on existing laws and jurisprudence. In the case of rebellion, it has to be based on the Revised Penal Code as that law had existed and is in effect for some 50+ years before the ratification of the 1987 Constitution.

  5. maybe Christian monsod should go to Mindanao and have a face to face meeting with the abu sayyaf and maute to confirm his speculation …

  6. Terrorists claiming allegiance to a foreign power – occupying communities, kidnapping and murdering foreign and Filipino citizens, bombing cities … hmmm … smells like a rebellion to me.

    Terrorists setting up fiefdoms within the country and establishing their own rule of revolutionary law in place of Filipino law, murdering people, destroying the livelihood of people … hmmm…. smells like a rebellion to me.

    How many people in these communities are being coerced into helping the terrorists out of fear? How many civilians have died? How many soldiers and police have been lost in defense of the people? Sure smells like a violent rebellion to me.

    Mindanao deserves better. Martial law may be a necessary evil for the short term.