From a State of National Emergency to martial law: CONSTITUTIONAL AUTHORITY

IS THERE SUFFICIENT BASIS?

On May 23, President Rodrigo Duterte issued Proclamation No. 216, effectively placing Mindanao in a state of martial law for a period not exceeding 60 days and thereby suspending the privilege of the writ of habeas corpus for the duration of the martial law. The proclamation was based on the clashes occurring in Marawi.

The unfortunate events in Marawi should have brought the country together, but the events in the city and the proclamation that followed have demonstrated the divisiveness of our nation. There is now a debate over whether martial law in Mindanao is justified — a debate that has seen dissonance not only among citizens online but even among experts on the law and members of Congress.

There is no question that the Constitution grants authority to the President, in case of invasion or rebellion, when the public safety requires it, to suspend the privilege of the writ of habeas corpus or to place the Philippines or any part thereof under martial law for a period not exceeding 60 days, without need of Congress’ approval. To safeguard against possible abuses, and in memory of our history, the Constitution has checks and balances in place by providing Congress with the power to revoke such a proclamation by a joint vote of at least a majority of all its members. If the Congress is in agreement with the declaration and does not revoke the same, consequently, the Supreme Court, upon petition, will need to assess the facts underlying the declaration.

Despite this, the President has issued several statements that he will ignore Congress’ and the Supreme Court’s possible action in his implementation of martial law in Mindanao. Such a statement is a clear defiance of the Constitution. Nonetheless, as Congress has yet to convene on the matter and Supreme Court has not yet had the opportunity to tackle the same, as no petitions have been filed, it is premature to dwell on the President’s statements.

REBELLION OR LAWLESS VIOLENCE?

What remains to be discussed, however, is whether the declaration of martial law as a last resort was justified. Can the situation in Marawi City be considered a rebellion, for which martial law for the whole of Mindanao can be justified? Or is it merely lawless violence, for which the President has already issued Proclamation No. 55 declaring a State of National Emergency? Unfortunately, there is yet no controlling principle that could serve as guidance. Proclamation No. 216 is only the second case when a Philippine president declared martial law since the administration of former President Ferdinand Marcos. The first case was Proclamation No. 1959 made by former President Gloria MacapagalArroyo. In the case of Arroyo’s Proclamation No. 1959, petitions were filed in the Supreme Court to question the constitutionality of a declaration of martial law by former President Arroyo in Maguindanao in 2009 following alleged reports of an uprising of the supporters of the Ampatuan family, who then were implicated in the Maguindanao massacre. The Supreme Court dismissed these petitions and ruled that the peti-