WHAT IS “MARTIAL LAW”?
BRIEFLY:
Martial law is founded on necessity and is essentially police power
exceptionally exercised by the executive with the aid of the military, the
latter being called upon to assist in the maintenance of peace and order and
the enforcement of legal norms. The purpose thereof being the preservation of
the public safety and good order in times when the domination of lawless
elements cannot be stopped by civil authorities.
IN
LENGTH: Tracing the history of the Philippine Constitution will show that
it is of American origin, thus, most law books provide for definition derived
from American cases and material references.
Westel
Willoughby, for one, had the following to say:
“In the most comprehensive sense
of the term, Martial Law includes all law that has reference to, or is
administered by the military forces of the State. Thus it includes (1) Military Law Proper, that is, the
body of administrative laws created by Congress for the government of the army
and navy as an organized force; (2)
the principles governing the conduct of military forces in time of war, and in
the government of occupied territory, and,…
(3)
Martial Law in sensu strictiore, or
that law which has application when the military arm does not supersede civil
authority but is called upon to aid it in the execution of its civil functions.”
The Martial Law in our
Constitution refers to the third definition.
Martial Law authorizes “the
military to act vigorously for the maintenance of an orderly civil government.”
– Justice Black, Duncan v. Kahanmoku, 327 U.S". 304, 323 (1946).
Martial Law is “the exercise of the power which resides in
the executive branch of the government to preserve order and insure the public
safety in times of emergency, when other branches of the government are unable
to function, or their functioning would itself threaten the public safety… It
is the law of necessity to be prescribed and administered by the executive
power. Its object, the preservation of the public safety and good order,
defines the scope, which will vary with the circumstances and necessities of
the case. The exercise of the power may not extend beyond what is required by
the exigency which calls it forth.” –Justice Stone, Id. at 335-6
WHO CAN DECLARE “MARTIAL LAW?
ANS. The President as
commander-in-chief pursuant to Art VII, Sec 18 of the 1987 Constitution.
WHAT IS THE “COMMANDER-IN-CHIEF” CLAUSE?
The
Constitution declares the President, a civilian, as the Commander-in –Chief of
the Armed Forces of the Philippines (the power covers the Philippine National
Police (PNP).
The
reason behind this provision is to ensure the supremacy of the civil authorities
over the military forces of the government.
The
President has control and direction of the conduct of war and, when necessary,
may call out such armed forces to prevent or suppress lawless violence,
invasion, or rebellion. However, it is
only in this sense that the president may be referred to as a military officer.
The President does not enlist in, nor is he inducted or drafted into forces; “he
is not subject to court martial or other military discipline.”Swartz, The Powers of the President, p.215
(1963)
The
net effect of Article II, Section 3, when read with Article VII, Section 18, is
that a civilian President holds supreme military authority and is the
ceremonial, legal, and administrative head of the armed forces. The Constitution
does not require that the President must be possessed of military training and
talents, but as Commander-in-Chief, he has the power to direct military
operations and to determine military strategy. Normally, he would be expected
to delegate the actual command of the armed forces to military experts; but the
ultimate power is his. “As Commander-in-chief, he is authorized to direct the
movements of the naval and military forces placed by law at his command, and to
employ them in the manner he may deem most effectual to harass and conquer and
subdue the enemy.” Fleming v. Page, 9 How
603, 615 U.S. (1850)
WHAT POWER DOES THE PRESIDENT HAVE OVER THE
MILITARY?
ANS. Since the President is
commander-in-chief of the Armed forces, she can demand obedience from military
officers. Military officers who disobey or ignore her command can be subjected
to court martial proceeding. Thus, for instance, the President as
Commander-in-Chief may prevent a member of the armed forces from testifying
before a legislative inquiry, a military officer who disobeys the President’s
directive may be made to answer before a court martial. (see Gudani v. Senga, G.R. No. 170165, April 15, 2006).
IN WHAT INSTANCES CAN THE PRESIDENT DECLARE
MARTIAL LAW? (GROUNDS)
Ans. Martial Law depends on two factual
bases: (1) the existence of invasion or rebellion, and (2) the requirements of
public safety. (Art. VII, Sec 18 of the
1987 Constitution)
WHAT ARE THE LIMITATIONS/RESTRICTIONS?
1. Grounds: There must be (actual)
invasion or rebellion and public safety requires the proclamation or
suspension;
2. Duration: shall not exceed 60 days,
following which it shall be lifted, unless
extended by Congress
3. Duty of President to report action
to Congress: within 48 hours, personally or in writing
4. Congress may revoke [or extend on
request of the President] the effectivity of the proclamation by
·
a majority vote
·
voting jointly
·
If not in session, Congress shall convene within
24 hours following such proclamation or suspension, convene in accordance with
its rules without need of a call
5. The Supreme Court may review the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof…
·
in an appropriate proceeding filed by any
citizen
·
must promulgate its decision within thirty (30)
days from its filing
It is therefore settled that the imposition of martial law or
the suspension of the privilege is now a judicial question, not a political
one. Note however that this judicial review is only for the Court to look into
the sufficiency of the factual basis for the exercise of the power. In Lacson vs. Perez, the Supreme Court said
that the President has discretionary authority to declare a “state of rebellion”.
WHAT ARE THE EFFECTS OF A STATE OF MARTIAL
LAW?
The
definition of the extent of martial law powers is made by way of denials,
stating what are not the effects of
a state of martial law. Thus:
1.
It
does not suspend the operation of the Constitution.
-Therefore, it does not
suppress the powers of the various branches of the government.
2.
It
does not supplant the functioning of the civil courts or legislative assemblies
- Meaning,
the ordinary legislation continues to belong to the legislative bodies even
during martial law. It adopts the “open
court rule” in Duncan v. Kahanamoku 327
U.S. 304, 324 (1946)which provides that civil courts cannot be supplanted by
military courts.
3.
It
does not authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function
-When martial law is declared, civil
authorities are not superseded by military authorities. Civil laws are likewise
not suspended
4.
It
does not automatically suspend the privilege of the writ of habeas corpus
-the privilege continues to be available to persons under
detention until suspended by the President. (Continue
reading or refer to other posts for further discussion the matter)
-it affects only those “persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.”
RE:
SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS
DEFINE A “WRIT OF HABEAS CORPUS”?
ANS. A writ of habeas corpus is defined as a
writ directed to the person detaining another, commanding him to produce the
body of the prisoner at a designated time and place, with the day and cause of
his caption and detention, to do, submit to, and receive whatever the court of
judge awarding the writ shall consider in that behalf.
Habeas
corpus when translated means “produce the body”. If a writ of habeas corpus is
issued by the court, the court is basically ordering a person who has detained
another to produce the body of the latter at a designated time and place, and
to show sufficient cause for holding in custody the individual so detained.
WHAT IS THE “PRIVILEGE OF THE WRIT OF
HABEAS CORPUS?”
ANS. The privilege
of the writ is the further order from the court to release an individual if it
finds his detention without legal cause or authority.
WHAT THEN MAY BE SUSPENDED: THE WRIT OR THE
PRIVILEGE OF THE WRIT?
ANS. It is the privilege of the writ of habeas corpus (not the writ itself)
WHO MAY SUSPEND THE PRIVILEGE?
ANS. The President
WHEN MAY THE PRIVILEGE BE SUSPENDED? Limitation
#1
ANS. “…in cases of invasion or
rebellion, when public safety requires it.”
HOW LONG MAY IT BE SUSPENDED? Limitation #2
ANS. It shall not exceed the period of
60 days.
WHAT HAPPENS WHEN THE PRIVILEGE OF THE WRIT
IS SUSPENDED?
ANS. When the privilege of the writ is
suspended, the person under detention by the government may not obtain his
liberty by its use.
The writ itself may still be
issued by the court and the person detained must still be produced in court.
However, the official or person detaining him may ask the court not to continue
the proceeding any further as the privilege of the writ as to that particular
person seeking release has been suspended
Once the officer making the
return shows to the court that the person detained is being detained for an office
covered by the suspension, the court may not enquire any further.
WHEN THE PRESIDENT DECLARES A STATE OF
MARTIAL LAW, IS THE PRIVILEGE OF THE WRIT AUTOMATICALLY SUSPENDED?
ANS. No, not automatically.
TO WHOM DOES THE SUSPENSION OF THE
PRIVILEGE APPLY? Limitation #3
ANS. “The suspension of the privilege
of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.”
“…any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.”
DOES THE SUSPENSION OF THE PRIVILEGE ALSO
SUSPEND THE RIGHT TO BAIL?
ANS. NO. ART III, SEC. 13
HOW DIFFERENT IS THE MARTIAL LAW UNDER THE
MARCOS REGIME FROM THAT WHICH IS CONTEMPLATED UNDER THE PRESENT CONSTITUTION?
In the case of Gumawa vs.
Espino, 96 SCRA 403, 403-7 (February 29, 1980), the Marcos Supreme court made
the following conclusions:
1.
That the proclamation of martial law
automatically suspends the privilege of the writ of habeas corpus;
2.
That the President of the Philippines, “as
Commander-in-Chief and as enforcer or administrator of martial law… can promulgate
proclamations, orders, and decrees during the period of martial law essential
to the security and preservation of the Republic, to the defense of the
political and social liberties of the people, and to the institution of reforms
to prevent the resurgence of rebellion or insurrection or secession of the
threat thereof as well as to meet the impact of a world recession, inflation,
or economic crisis which presently threatens all nations including highly
developed countries…”
3.
That the President of the Philippines, as
legislator during the period of martial law, can legally create military
commissions or courts martial to try not only members of the armed forces but
also civilian offenders for specified offenses.
The new Constitution, however, rejects the above Marcos Court
pronouncements and now says categorically: “A state of martial law does not
suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.”
REFERENCE:
1.
The 1987 Constitution
2.
Revised Rules of Court on Habeas Corous, Rule
102
3.
Bernas, J. (2011). The 1987 Philippine
Consitution: A Comprehensive Reviewer
4.
Bernas J. (2009). The 1987 Constitution of the Republic
of the Philippines: A Commentary
5.
De Leon, H. (2008). Textbook on the Philippine
Constitution
6.
Nachura, AE. (2009). Outline/Reviewer in
Political Law
Cases:
1.
Gudani vs. Senga G.R. No. 170265, April 15, 2006
2.
Gumawa vs. Espino, 96 SCRA 403,403-7, February 29,
1980
3.
Lansang vs. Garcia 42 SCRA 448
4.
Lacson vs. Perez, G.R. No. 147780, May 10, 2001
5.
IBP vs. Zamora, G.R. No. 141284, August 15, 2000
6.
Padilla vs. Ponce Enrile, L-61388, April 20,
1983
