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Sounding Board
What is martial law? (1)

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 22:54:00 07/12/2009

Filed Under: Laws, Constitution, history, Government, Safety of Citizens, Judiciary (system of justice)

Two weeks ago at a forum in Holy Angels University in Angeles, Pampanga, a young girl, in all innocence, asked, What is martial law? Is it worse than the present government? I shall try to answer only the first question.

What is obvious to me now is that many young people, even among the current crop of law students and recent law graduates, only have a faint idea of what happened during the period of martial law. They hear about it mentioned by their elders, but they wonder what it all meant. So, what is martial law?

The answer to the question understood under the 1935 and 1973 Constitutions can be both in theory and in practice. But under the 1987 Constitution, the answer can only be in theory, although there are rumors about it being put into practice in answer to the current spate of bombings in Mindanao.

Whether under the 1935, 1973 or 1987 Constitution, however, martial law is essentially police power. This is because its concern is ?public safety? when this is threatened by invasion or rebellion. What is peculiar about martial law as police power, however, is that, whereas police power is normally a function of the legislature executed by the civilian executive arm, under martial law, police power is exercised by the executive with the aid of the military and in place of ?certain governmental agencies which for the time being are unable to cope with existing conditions in a locality which remains subject to the sovereignty.?

Martial law authorizes ?the military to act vigorously for the maintenance of an orderly civil government.? It 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.?

Martial law as police power, therefore, is a flexible concept. It depends on two factual bases: (1) the existence of invasion or rebellion, and (2) the requirements of public safety. Necessity creates the conditions for martial law and at the same time limits the scope of martial law. Certainly, the necessities created by a state of invasion would be different from those created by rebellion. Necessarily, therefore, the degree and kind of vigorous executive action needed to meet the varying kinds and degrees of emergency cannot be identical under all conditions. They can only be analogous.

When one speaks of analogy one must necessarily speak of a common denominator. What is the common denominator of varying degrees and kinds of executive action during martial rule? The question must be answered in the context of the system of separation of powers. And the answer is this: the common denominator of all exercise of martial law powers is the exercise by an executive officer of the discretion and judgment normally exercised by a legislative or judicial body. The variable in the various forms of martial law powers is the extent to which the executive assumes legislative and judicial functions. This variable is determined by the necessities of the moment. The extreme case is the investment of one man with the power of life and death over citizen and soldier alike in a given area of actual war. In this extreme case, the executive officer is fully lawmaker, judge, and executive all rolled into one.

What happened during martial law under the 1935 and 1973 Constitutions? A follow-up question is: How did the Supreme Court allow martial law to operate?

It will be recalled that on Sept. 21, 1972, President Ferdinand E. Marcos, by Proclamation No. 1081, placed the entire Philippines under martial law. This was followed by an Order stripping the Supreme Court of the power to review the validity or legality of any decree or order issued by him. Still other orders followed which amounted to the assumption by the President of extensive legislative powers. Military courts were established with jurisdiction over civilians.

How did the Supreme Court react? In sum the Supreme Court legitimized the actions of the President. It ruled that (1) the martial law proclamation of 1972 was validly made on the basis of an existing rebellion; (2) the imposition of martial law carried with it the suspension of the privilege of the writ of habeas corpus; (3) the martial law administrator could legislate on any matter related to the welfare of the nation; (4) he could create military tribunals and confer on them jurisdiction to try civilians for crimes related to the purpose of martial rule; (5) in the absence of any other operative constituent body he could even propose amendments to the Constitution; (6) under martial claims of denial of a speedy trial were unavailing and that the suspension of the privilege of the writ of habeas corpus also carried with it the suspension of the right to bail.

Finally, on Jan. 17, 1981, on the eve of the first visit of Pope John Paul II to the Philippines (but not propter quod, it was said), martial law was lifted by proclamation No. 2045. But not really. If the heart of martial law is the concentration of governmental powers in the hands of the executive, the equivalent of martial law remained as part of normal day-to-day government. This was the effect of Amendment No. 6 of 1976 which granted full legislative power to the President.

(Next week, martial law in the 1987 Constitution)

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