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Consequences of martial law

opinion / Columnists
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With Due Respect

Consequences of martial law

The 1987 Constitution defanged martial law (ML) to prevent a repetition of the abuses perpetrated during the regime of Ferdinand Marcos. Nonetheless, the Charter does not define ML; neither does it directly state what powers are granted and what constitutional rights, if any, are restricted by ML.

Warrantless arrests. This apparent lack may have led Justice Marvic M.V.F. Leonen to hold in Lagman vs Medialdea (July 14, 2017) that Proclamation 216 (the ML edict) is unconstitutional for, among other reasons, failing to specify what new powers the President would wield and what civil liberties would be curtailed.

On the other hand, robust are the opinions, which while not defining ML foursquare, dealt on what Justice Antonio T. Carpio calls the “consequences” of the defanged ML.

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First, ML facilitates the speedy apprehension of suspected rebels because, after ML is validly proclaimed, the commission of rebellion as a continuing crime in Mindanao becomes a fact that an arresting officer need not prove to make warrantless arrests (Umil vs Ramos, July 9, 1990). The arrest of persons involved in rebellion is thus synonymous with a valid warrantless arrest of a person committing a crime in the presence of the arresting officer.

Moreover, the suspension of the privilege of the writ of habeas corpus allows the detention of arrested rebellion suspects for a period of three days, or 72 hours. Normally, under the Rules of Court, they can be detained for only 36 hours. Thereafter, the suspects must either be released or charged in court (to continue detaining them).

Detaining them beyond these periods (of 36 or 72 hours) without charging them in court will make the authorities liable for the crime of arbitrary detention (or illegal detention if the prolonged detention is caused by private individuals).

Restriction of some rights. Second, with an ML proclamation or suspension of the privilege, the constitutional rights to privacy of communication, to travel and to liberty of abode may be restricted on the ground of public safety, provided Congress passes a law specifically authorizing such restriction. (Art. III, Sec. 3-1, Constitution)

Example: Republic Act No. 4200, the Anti-Wiretapping Act, allows peace officers, upon court authorization in cases involving rebellion, to tap and record conversations. Similarly, RA 10173, the Data Privacy Act of 2012, permits the collection and use of personal information, even without the consent of the data subject, to respond to a national emergency like rebellion.

Also, RA 8239, the Philippine Passports Act of 1996, authorizes the cancellation of passports for cause after due hearing in the interest of national security or public safety.

Emergency powers and military courts. Third, David vs Arroyo (May 3, 2006), citing Art. VI, Sec. 23 of the Constitution, held that during national emergencies, including rebellion, the Congress may, by law, authorize the President to exercise emergency powers to carry out a declared national policy provided that “such powers shall cease upon the next adjournment of Congress.”

Example: RA 6826 delegated emergency powers to President Corazon Aquino in 1989 on account of “a rebellion committed by certain elements of the Armed Forces of the Philippines.” Among the emergency powers granted her was the takeover of privately owned public utilities or businesses affected with public interest.

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Fourth, a declaration of ML may “authorize the conferment of jurisdiction on military courts…where civil courts are not able to function.” However, Congress still needs to pass a law prescribing and apportioning the jurisdiction of the various courts. The Constitution empowered Congress, not the President, to fix the jurisdiction of courts.

In sum, the proclamation of ML may trigger constitutional provisions granting additional powers to the President or restricting constitutional rights, provided there are implementing laws specifically authorizing such powers or restricting such rights (with the possible exception of the first item which does not require an implementing law).

Comments to chiefjusticepanganiban@hotmail.com

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TAGS: 1987 Constitution, artemio v. panganiban, Marawi siege, Marvic Leonen, Mindanao martial law, Supreme Court, warrantless arrest, With Due Respect
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