Friday, December 15, 2017
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With Due Respect

Martial law, authoritarian rule and Cha-cha

September was a refreshing month for free speech. Rallies and demonstrations filled many streets and plazas, especially on the 11th (the 100th birthday of Ferdinand Marcos) and on the 21st (the 45th anniversary of his declaration of martial law [ML]).

Yes to constitutional ML. What caught my attention, even while I was in the United States on those two dates, was the passion in denouncing the possible reimposition of ML nationwide. Repeatedly, the mantras were “No to martial law! Never again! Martial law is evil!”

However, as I have written in the past, the 1987 Constitution has exorcised the evils of ML and instituted adequate safeguards to prevent the abuses perpetrated during the Marcos regime.

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To stress, under the present Charter, ML can be declared only to suppress an actual rebellion or invasion (and no other crime) when public safety requires it. The Congress and the Supreme Court are separately authorized to review and to strike down the declaration. At all events, the Constitution — particularly Art. III (the Bill of Rights) — is not suspended and remains in full force.

The only immediate adverse effect on the citizenry is the authority given to law enforcers to detain rebellion and invasion suspects for 72 hours, instead of the usual 36 hours. And this can be done only if the privilege of the writ of habeas corpus is also suspended.

Defense Secretary Delfin Lorenzana (the ML administrator in Mindanao) and Armed Forces Chief of Staff Eduardo Año are well aware of these constitutional limits and have carefully observed them. I have spoken with Secretary Lorenzana a few times and I am convinced he is a gentleman determined to honor these limits. He knows that he is being watched by our people and that he will eventually be judged by history.

Clearly, ML is not evil per se. If it were so, the 1987 Constitution should have prohibited it, instead of just restricting it. Indeed, ML is a necessary weapon to suppress invasion or rebellion when public safety requires its use.

No to authoritarian rule. What we must be wary of and safeguard against is authoritarian rule. Authoritarian rule takes place when the Constitution is ignored and the head of state governs by his/her lonesome.

This can happen if — repeat, if — the President, with the active support of the military, sets aside the Constitution and becomes a virtual dictator with unlimited powers. He would then rule by might, not by right. But to be fair, let me add that President Duterte said a few days ago that he respects and will always follow the Constitution.

Authoritarian rule can also happen if military adventurers stage a successful coup d’état. Here, the Constitution is likewise set aside and a new regime takes over.

With authoritarian rule, the Bill of Rights would be obliterated, Congress and the Supreme Court abolished, and the system of checks and balances abrogated.

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Neither yes nor no to Cha-cha for now. Another way of radically altering the structure and form of the government is through Charter change (Cha-cha), which Congress is planning to undertake shortly. While the general aim is to establish a federal type of government, Cha-cha could also result in the abolition of the presidency as we know it now, and/or of Congress if the parliamentary system is instituted, and/or of the Senate, if the unicameral variety is adopted.

The terms of office of all officials could be cut and the incumbents, including those possessing constitutionally protected terms like Supreme Court justices, could be summarily removed. The Bill of Rights could be altered and the declaration of principles revised.

Since the Spanish colonization, our government has always been centralized. Our people have had no experience with any other form of government. At this point, I have no details on the kind or form of federal state that would be adopted. Until I know such details, I cannot say “yes” or “no” to Cha-cha.

But one thing is certain: Federalism will usher in a new way of governance, a new team of officials and a new set of rules, perhaps as novel as a revolutionary government.

Comments to chiefjusticepanganiban@hotmail.com

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TAGS: 1987 Constitution, artemio v. panganiban, federalism, free speech, martial law, With Due Respect
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