Martial law should not last beyond the security threat

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FRANCISCO S. TATAD

FRANCISCO S. TATAD

AFTER contemptuously defying the command of the Constitution to convene in joint session in order to approve or reject President Rodrigo Duterte’s May 23, 2017, proclamation of martial law and suspension of the privilege of the writ of habeas corpus in the whole of Mindanao, Congress will finally jointly convene in special session tomorrow, July 22, to extend Proclamation 216, which automatically and compulsorily expires on the same day after 60 days.

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Now on its 30-day mandatory break between two regular sessions, Congress is set to meet in joint session on Monday, July 24, to listen to the President’s State of the Nation Address at the opening of the Second regular session of the 17th Congress. This is the first time the Congress will be meeting in joint session twice in the space of three days on two separate issues. The President has called tomorrow’s special session, solely for the purpose of extending Proclamation 216, which he issued from Moscow when the Maute militant group, claiming to have links to the Islamic State (IS) in Iraq and Syria, struck in Marawi.

The Constitution and Congress

The leaders of Congress have shown they could defy and disrespect the Constitution, but not DU30, to whom the “super majority”, made up mostly of political turncoats, have pledged their loyalty. But just as not every command of the Constitution with respect to Proclamation 216 has been complied with, not every constitutional command with respect to its proposed extension is being obeyed.

The provision, which authorizes the President to proclaim martial law and suspend the privilege of the writ, in case of invasion or rebellion, when the public safety requires it, for not longer than 60 days, subject to the approval of Congress, now authorizes Congress, upon the initiative of the President, to extend P-216 for a period it may itself determine, “if the invasion or rebellion shall persist and public safety requires it.”

But here, the power to extend the proclamation shifts from the President to Congress. Under Section 18 of Article VII of the Constitution, the President can only propose the extension, but it is Congress that must extend the proclamation and decide for how long. Thus, what began as a presidential act becomes, upon extension, an act of Congress.

Now, Malacañang says the President wants P-216 to be extended until December 31, 2017, or “for such a period of time as the Congress may determine.” This has led some daily broadsheets (not The Manila Times) to report that DU30, rather than Congress, will extend P-216 until December 31, 2017.The Congress could in fact adopt the proposed timeline. But as the President is not supposed to set the timeline, his Congress allies could disregard the specific suggestion, but grant DU30 an even much longer extension.

The unimaginable Speaker Pantaleon Alvarez has already floated a “trial balloon” of five years—coextensive with DU30’s term which ends in 2022. This is mad. But since Pantaleon and company believe they can get away with anything, we should not discount the possibility of anything happening. Nonetheless, just as it would be wrong to blame a rabid dog for having rabies, it would be wrong to blame power-mad politicians for having mad ideas.

Self-destructive provision

Yet none of their mischiefs would have been possible if we had a more sensible constitutional provision. As the late Wenceslao Vinzons said of the much worthier 1935 Constitution, Section 18, Article VII of the 1987 Constitution contains “the seeds of its own destruction.” It was written as an over-reaction to Marcos, who ruled under martial law from September 21, 1972 to January 17, 1981, after abolishing Congress and cancelling elections until 1978, instead of as an effective weapon of the state against lawless violence, invasion, rebellion and terrorism.

Cory Aquino’s constitutional commission wrote this particular provision, spooked by the “excesses” of Marcos, without learning any lessons from the Marcos years. They were determined not to allow another Marcos to emerge, but they had no clear idea of how to do it. The result was a bundle of errors which the present crisis has exposed.

Just because the 1935 Constitution allows the President to proclaim martial law and suspend the privilege of the writ throughout the country “in case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, Cory Aquino’s commissioners decided that an actual invasion or rebellion must first exist, and the public safety must require it, before the President could proclaim martial law or suspend the privilege of the writ for not more than 60 days.

Imminent danger of invasion or rebellion was eliminated as a ground for it. Yet the Supreme Court majority of 11 justices had no problem upholding the constitutionality of DU30 including in P-216 all the other provinces of Mindanao where perhaps only a remote (not even imminent) possibility of the Maute rebellion exists. Under the provision, Congress must meet in joint session to approve or reject the edict, after the President has reported in person or in writing to the body within 48 hours from his issuance. He may not set aside or reverse Congress’ decision, if it rejects his edict. This is how the law is constructed.

Under the maxim “dura lex sed lex” (“the law is hard but it’s the law”), every part of it must be followed by the President and Congress. DU30 had threatened not to recognize any adverse position by the Supreme Court or Congress, but it is the leaders of Congress who have contemptuously refused to follow what the Constitution says.

On the surface, they support DU30 and Proclamation 216, but for reasons of their own they have simply refused to convene as one body to formally approve the proclamation they support. They had all the time to do it before their mandatory recess, but they simply refused to do so.

A deformed reform

I have been singularly critical of this defiance of the Constitution, but I am also the first one to point out that this particular constitutional requirement and the other modifications introduced by Cory’s commissioners into the 1935 constitutional provision have in fact “deformed” the provision they had intended to reform.

The martial law provision is otherwise known as the Commander-in-Chief provision because it allows the President, as C-n-C of all armed forces, to go one level higher after he has called out such armed forces as are necessary to prevent or suppress lawless violence, invasion or rebellion. Unless you want to destroy this power, which is an indispensable executive power, you cannot subject it to a legislative veto.

The Supreme Court’s power of judicial review should be sufficient to determine the factual basis of any martial law proclamation. The requirement that Congress convene in joint session to listen to the President’s report within 48 hours from the proclamation is clearly absurd if martial law can only be declared if there is an invasion or rebellion and the public safety requires it. In an invasion, the Congress may not even be able to assemble amid the violence, even though its duty is to meet in joint session and declare a state of war against the aggressor by a two-thirds vote of both Houses, voting separately.

The fact that the so-called Maute “rebellion,” which had prompted DU30 to issue P-216, continues, even as the proclamation itself expires after 60 days, is abundant proof that Cory’s commissioners erred when they gave the state a 60-day deadline without any guarantee that any invasion or rebellion would have ended by then. This time-bound provision is good only if the invasion or rebellion is short-lived, as in Maguindanao when Gloria Macapagal Arroyo declared martial law and suspended the writ on December 4, 2009 and lifted the same on December 13, 2009.

But we are now presented with an awful situation where the state has to officially terminate its chosen method of defeating a “rebellion” while the rebellion itself continues. This is not how it was meant to be. The medicine should be withdrawn only if it has failed, or after the disease is cured. That martial law can be extended, as Congress is expected to do so tomorrow, does not speak well of how we handle the security problems of the state.

A modest proposal

To avoid any scandalous ideas coming out of Congress, the better option may be to consider extending P-216 for as long as the problem which necessitated its extension remains. It cannot fall short of, nor last longer than the existing security threat. An open-ended response, contingent upon the “rebellion” it is meant to solve. This would be my modest proposal.

To make sure such an extension is not abused for anybody’s personal or political reasons, the Secretary of National Defense, as martial law administrator, should be mandated to report regularly to the President and Congress on the security situation on the ground every 60 days or so. On the basis of the actual situation, he should be empowered to recommend when the proclamation should be lifted.

At the same time, all inter-cultural and inter-religious efforts should be undertaken to promote a stronger climate for cooperation and dialogue. I reveal no great secret if I remind our tough-talking President that the fight against the Mautes and their supposed Islamic State (IS) patrons or any militant group for that matter will not be won by military means alone.

fstatad@gmail.com

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