If President Rodrigo Duterte had declared martial law, he would have been so excessively substantiated defending his declaration valid yet unconstitutional.
Section 18 of Article VII of the 1987 Constitution reads,
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. XXX
The 1987 Constitution draws a clear limit of the power of the President to declare martial law. It further posits the limitation of the Executive branch or a proscription of the President to declare such without a review from the Congress and ultimately from the Supreme Court to determine with finality that such declaration is not only valid but also constitutional.
With the wordings in the 1987 Constitution, the President cannot declare martial law under his whims and caprices. Furthermore, in all instances, it provides the Supreme Court a “judicial power” to review and settle not only justiciable cases but also political.
If President Duterte so serious to declare a martial law in the pretext of his “war on drugs”, then what makes him supreme over the supreme law of the land?
Martial Law According to Black’s Law
Martial law, according to Black’s Law Dictionary 4th Edition, is “in truth and reality no law, but something indulged rather than allowed as a law.”
As a self-imposed law, martial law, accordingly, is a “system of law, obtaining only in time of actual war and growing out of the exigencies thereof, arbitrary in its character… .”
Substantively, the Black’s Law Dictionary defines martial law as “is regulated by no known or established system or code of laws, as it is over and above all of them. The commander is the legislator, judge, and executioner.”
Brief Historical Perspective on Martial Law in the Philippines
Before the 1972 martial law imposed by the late President Ferdinand Marcos, the Philippines had already experienced martial law during the Spanish period, during Emilio Aguinaldo’s leadership, and during the Second Philippine Republic of President Jose P. Laurel.
The 1972 martial law was claimed as the last resort to fight against the rising public disorder evidently caused by a deteriorating student activism, the increasing number of demonstrations in major thoroughfares and provinces in the country believed to be worsened by the Communist Party of the Philippines, and the rise of Muslim separatists.
The late Ferdinand Marcos on his imposition of martial law could never be blamed on the other side of the coin but could overwhelmingly be burdened to shoulder full responsibility of the aftermath.
Propaganda About Marcos Martial Law
With due respect to former Supreme Court Chief Justice Artemio V. Panganiban, I choose to disagree with his distasteful impression (“Worse Than Martial Law” published on Inquirer.net) that “Marcos misused the martial law to loot the treasury.” I would rather believe that the late Ferdinand Marcos had never misused and could never misuse martial law.
Pragmatically asserting, when a leader decides for a martial law the exercise or the control of it cannot be qualified, measured by impression, critiqued according to a known or established system or norm. Neither can it be misused for any known reason nor can the leader be blamed for a decision that was challenged by the demands of time. Rather, the imposition of martial law is the ultimate choice that the demands of time can elaborate no other choices to make but to exercise arbitrary control while embracing the ungovernable consequences. Thus, an overwhelming full responsibility is accorded to the leader that imposes such. No one can be held responsible but the unfortunate times and the driving forces. Moreover, the Black’s Law Dictionary can be so clear in defining further martial law as “regulated by no known or established system or code of laws, as it is over and above all of them.”
Relatively, Marcos, under the Constitution of that time, enjoys the privilege as a commander-in-chief without further questions among others. Unlike the 1987 Constitution, the 1935 Constitution—the law of the land during the late Ferdinand Marcos—is silent about any review for a martial law declaration. Thus, this gives the opportunity of the late Ferdinand Marcos to use the privilege in a way he wanted to do so. Misuse of this privilege is literally nonexistent!
Furthermore, the article of the former SC Chief Justice Panganiban, which opines the “misuse of martial law” to “loot the treasury” is seemingly a fruit from an orchestrated propaganda. With the Supreme Court decision cited in the case G.R. No. 171701 penned by former Associate Justice Maria Lourdes Sereno (now chief justice) and concurred in unanimously, the state prosecution failed to comply the “best evidence rule”. The decision also states that:
While it was not proven that respondents conspired in accumulating ill-gotten wealth, they may be in possession, ownership or control of such ill-gotten properties or the proceeds thereof as heirs of the Marcos couple. Thus, their lack of participation in any illegal act does not remove the character of the property as ill-gotten and, therefore, as rightfully belonging to the State.
Clearly stated that the respondent Marcoses are innocent of a conspiracy to amass ill-gotten wealth. However, this Supreme Court decision has partially granted this Petition for Review filed by the state and maintained respondent Marcoses as defendants in the Civil Case No. 0002 pending before the Sandiganbayan.
While the case is pending, the issue might be: since the Supreme Court found no evidence of a conspiracy to “accumulate ill-gotten wealth”, sans new evidence, how could the respondent Marcoses’ ownership be qualified as ill-gotten wealth or proceeds after all?
Going back to the supremacy of President Duterte as what he sounded like should he impose martial law despite the constitutional limit, what makes him supreme over the Congress and the Supreme Court?
The Duterte Mania!
The 2016 presidential elections proved that Rodrigo Duterte has a majority of Filipinos supporting him. The 2016 last quarter survey from SWS showed that President Duterte has the excellent approval rating. The “calmness” of that most Filipinos amid the reported and most probably understated number of reported deaths in the first semester of President Duterte administration’s intensified campaign on the “#war on drugs” echoed a silence of satisfaction. President Duterte, indeed, has a leadership at work.
The foundation of a government cannot be all about laws but of leadership, as well. A government that is built upon merely on laws could be a government of robots programmed by codes.
In a democratic and republic government such the Philippines, supremacy resides in the people. But this thinking seems a decoy. Education and society made us believe that laws govern us all and that the law of the land is supreme, and the voice of gods in the Supreme Court must be binding after all.
The 1987 Constitution allows the president to declare martial law with clear conditions. The declaration of martial law is subject to assessment by the Congress and the Supreme Court through a motion to review making the president vulnerable to repercussions.
President Duterte is not innocent of this thrill despite his public show-off of his fiery “desire” to impose martial law. He even hinted it as easy as ABC if he wants to—a statement that eventually may make the “supremacy” of the Supreme Court and the constitutional mandate of the Congress be tested.
Opposite to others’ views that another martial law is impossible because of a constitutional limit, President Duterte through extralegal means using series of staged efforts and self-invented conspiracy to overthrow his administration can make martial law be born again!
With his effective, excellent approval leadership, he could make the Congress sullen and the Supreme Court lame outright. Capitalizing the quality of intensity of his leadership he has right now, the government of laws would become a theory of a long yesterday.
People are advancing; so are their social awareness and consciousness to social driving forces. While technology is constantly upgrading, people’s attitude, behavior, and mindset are expanding as well into a more diverse, deeper perspective yet tending to constrict toward a more communal, mutual thinking of efforts siding to the vast affected class of society.
President Duterte has just invented that so-called drive. However, depending on how he played his game, his administration might be a sure addition to a failed state of Philippine leadership. ▲