Is martial law extension constitutionally justified?

Upon President Duterte’s behest, the Senate and the House in joint session last Wednesday voted to again extend martial law and suspend the privilege of the writ of habeas corpus in the whole of Mindanao. This third extension will remain until December 31, 2019. The vote was 235 yes, 28 no, 1 abstention.

No doubting the overwhelming “yes” vote. What lingers disquietingly, however, is the question whether the extension complies with the provision of the 1987 Constitution, specifically Section 18 of Article VII (Executive Department).

Essentially Section 18 says the President may, “in case of invasion or rebellion, when the public safety requires it,” suspend the privilege of the writ or place the Philippines “or any part thereof under martial law.” It requires the President to submit a report in person or in writing to Congress within 48 hours. Voting jointly by at least a majority of all its members, Congress may approve or revoke his proclamation. Upon the President’s initiative, Congress may, in the same manner, extend such a proclamation for a period it shall determine – “if the invasion or rebellion shall persist and public safety requires it.”

Section 18 also says the Supreme Court may review, in an appropriate proceeding filed by a citizen, “the sufficiency of the factual basis of the proclamation… and must promulgate its decision thereon within thirty days from its filing.”

Through Proclamation 216, Duterte originally declared martial law and suspended the writ privilege for 60 days on May 23, 2017, in the wake of the “siege of Marawi” by the combined forces of the Maute and Abu Sayyaf extremist groups. The proclamation denoted the siege as a “rebellion” to comply with the constitutional requirement, and Congress and the Supreme Court both approved it.

With Congressional approval, the period was first extended for six months until end-December 2017. Although the Marawi siege had been quelled by October, the security forces recommended a second extension, for one year, citing various justifications that didn’t seem to accord with Section 18. However, the extension easily sailed through Congress and was again upheld by the Supreme Court.

In his letter-request to Congress, dated last December 6, Duterte wrote:

“A further extension of the implementation of martial law and suspension of the privilege of the writ of habeas corpus in Mindanao will enable the AFP, the PNP, and all the other law-enforcement agencies to fully put an end to the ongoing rebellion in Mindanao and continue to prevent the same from escalating in other parts of the country.”

He said that during the extended martial law period in Mindanao, “we have achieved significant progress in putting the rebellion under control, ushering in substantial economic gains.” Despite these gains, he noted, the security assessment submitted by the AFP and the PNP highlights “certain essential facts which indicate that rebellion still persists in Mindanao and that public safety requires the continuation of martial law in the whole of Mindanao.”

For instance, he said the Abu Sayyaf Group (ASG), the Bangsamoro Islamic Freedom Fighters, the Daulah Islamiyah (former Maute group) and other groups which “seek to promote global rebellion” continue to defy the government by perpetrating hostile activities. He mentioned four bombing incidents during the extended period of martial law. Duterte also cited “342 violent incidents” alleged by the AFP to have been carried out by the CPP-NPA and the continuing kidnap-for-ransom activities of the ASG.

All of these, he said, “merely illustrate in general terms the continuing rebellion in Mindanao.” He promised to submit “a more detailed report on the subsisting rebellion in the next few days.”

Doesn’t this statement suggest that the indicators Duterte cited are insufficient to establish an actual rebellion threatening public safety? Yet, without waiting for the “detailed report,” Congress approved the requested extension.

Based on their statements to the press, the chiefs of the AFP and the PNP however seem to have different takes on the martial-law extension:

Lt. Gen. Benjamin Madrigal Jr., the new AFP chief, vows stricter implementation of the extended martial law “to prevent another Marawi.” For his part, PNP director-general Oscar Albayalde says the extension will assure the people of Mindanao another full year of peace and security against the “imminent threat of violence from extremist and communist terrorist forces.”

Note that both officials point, not to actual or ongoing rebellion, but to potential or imminent threats of violence, which no longer justify martial law declaration.

Come now Sen. Franklin Drilon and Albay Rep. Edcel Lagman, who voted “No” to the extension, citing its lack of factual and constitutional basis. Their insights as seasoned lawyer-legislators should be given due consideration, along with Sen. Chiz Escudero’s credible assertion that Mindanao achieved economic growth “not because of martial law but because of (the Duterte administration’s) allocation of resources where Mindanao got bigger attention.” Martial law, Escudero stressed, “cannot be the new normal for Mindanao.”

Drilon insisted that “there is no actual rebellion or armed uprising in Mindanao which can justify the declaration of martial law” in that part of the country. He revealed that Defense Secretary Delfin Lorenzana, during the closed-door security briefing for senators last Monday, had described the martial-law extension as “a psychological war, to quell an armed uprising.” He also recalled that the AFP had classified the local terrorist groups as merely “a peace and order problem today.”

Likening martial law to antibiotics, Drilon said these are “resorted to only when ordinary over-the-counter drugs have ceased to work.” Unlimited resort to such powerful medicine, he added, “desensitizes the body and eventually no longer becomes effective in providing the protection that it was designed to give.”

Presumably recalling what he heard at the closed-door security briefing for House members Tuesday, Lagman also averred there are no constitutional and factual bases for the extension. He concluded rebellion does not persist in Mindanao and public safety is not imperilled.

“An extension of martial law and suspension of the writ of habeas corpus,” he warned, “will prolong inordinately the regime of martial law to a total of 951 days [2 years and 4 months].” This, he added, “contravenes the prescription of the 1987 Constitution delimiting the period of martial law to a short duration, since the original proclamation should not exceed 60 days.”

When Lagman and other oppositors bring the issue again to the Supreme Court, the latter should thoroughly review if this third extension is really sufficiently based on facts, beyond the security forces’ self-serving inputs. Can the people hope that the Tribunal will reconsider its ruling last year, that it has no power to review the decision of Congress granting President Duterte’s request?

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Published in Philippine Star
Dec. 15, 2018

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