THE 1987 Constitution is sometimes described as a reactive piece of legislation. This is one among the reasons why there are those who want it reexamined. Indeed, nothing better exemplifies the reactive character of the document than the provision on the commander in chief powers of the President, the provision which is the fountainhead of martial rule.

If you look at the martial law provision of the 1935 Constitution, you will see that it consists merely of 465 words. The 1987 provision now has 2,312 words. The 1986 Constitutional Commission expanded the text by adding a list of provisions intended to prevent the recurrence of martial rule as practiced under President Marcos. What are these protective provisions and will they really work?

In essence, the new provisions are reversals of decisions of the Supreme Court during the period of martial rule. Although President Marcos had attempted to strip the Supreme Court of authority to review his orders and decrees, the Court in fact served as legitimizer of presidential action. The new Constitution has de-legitimized what the martial-law Court did.

An initial innovation limits the duration of martial law to 60 days, and Congress, by a joint vote of both houses, is authorized to revoke the proclamation of martial law. Under the 1935 Constitution, martial law could be of indefinite duration.

Why joint vote by Congress? The thinking of the Commission in 1986 was that the House of Representatives would be more protective of liberty and could then neutralize the vote of the Senate. Many commissioners are now shaking their heads in dismay, especially since, by the same joint vote, Congress can also extend the period beyond 60 days!

As to the Supreme Court, the Constitution now explicitly authorizes it, upon the initiative of any citizen, to pass judgment on ?the sufficiency of the factual basis of the proclamation or of the extension of the period.? And it is commanded to promulgate its decision within 30 days. The martial-law Court considered a martial-law proclamation a ?political question? not reviewable by the judiciary.

Explicitly too the Constitution provides that 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.? It will be recalled that among the first acts of President Marcos was to padlock Congress. Later he gave jurisdiction to military tribunals to judge civilians.

The doctrine under the old martial law was that its imposition automatically suspended the privilege of the writ of habeas corpus. This is no longer the rule. Moreover, the scope of the suspension of the privilege has been limited only to persons charged with rebellion or with offenses connected with invasion. During the period of suspension of the privilege, ?any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.?

These protective provisions might look good on paper. But they are untested. How will they stand against a President determined to flex the executive muscle? Whether or not these protective provisions will work or will be allowed to work will depend on how three Philippine institutions will react. These three are the military, the Supreme Court and Congress.

It will be recalled that what kept President Marcos in control was the support he received from the military establishment. The initial implementation of Proclamation 1081 was carried out by the Armed Forces. And through almost 15 years a pampered military gave stability to the Marcos rule. But when in 1986 the Armed Forces deserted him, his rule collapsed. For that matter, the ouster of President Estrada and the rise of President Arroyo were to a large extent a military handiwork. This is one clear lesson we have learned from our experience in the past 40 years. I am not sure that we have found a foolproof antidote to military adventurism.

What of the Supreme Court? To my mind, one of the serious defects of the current Constitution is the process of choosing members of the Supreme Court. Former Chief Justice Concepcion authored the present process in the belief that it would eliminate the harmful effects of politics. But if you look at the structure of the process, you will see that it is easily politically maneuverable. This year, as we near the next presidential elections, eight new justices will be installed.

With neither money nor arms, the Court has been called the least dangerous branch. But its legitimizing function, so active during the Marcos presidency, is tremendously dangerous. Today the nation wonders how the Supreme Court will stand up to a vigorous challenge coming from the commander in chief of the Armed Forces.

Finally, what of Congress? Congress now can revoke a proclamation of martial law but it can also extend the duration beyond 60 days. The voting process for this purpose is joint. This means that the House of Representatives can determine the issue. The House of Representatives glorified HR 1109. What does this forebode for the future if martial law should fall upon us? So much will depend on the kind of people who will be elected in 2010.