Congress’ duty during martial law

President Duterte is fulfilling his duty to respond swiftly to the terrorist attack in Marawi City. His role is to keep the Filipino people safe and the national sovereignty and territory intact while Congress deliberates on what must be done next to meet the crisis. Congress’ role, in turn, is to guide the President and the military in the conduct of martial law.

Regarding Mr. Duterte’s proclamation of martial law in the whole of Mindanao, House Majority Leader Rodolfo Fariñas is wrong to say that “Congress has to act only if it shall revoke such proclamation. If it is in favor of the proclamation, it does not have to act.” In fact, our Constitution itself states: “The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.” More than that, Congress’ duty is not limited to just deciding whether to revoke or extend martial law. Congress must also issue guidelines to both the president and military in the form of a joint martial law resolution. The resolution should give broad policy direction, define the extent and limits of martial law, require periodic reports of the situation, provide other mechanisms for congressional oversight and data gathering, etc.

Congress, or the legislature, is the most democratic branch of our government. The 12 senators who won in May 2016 had more than 195 million votes among them. The 12 others who won in May 2013 obtained more than 192 million votes combined. In fact, five of the senators who won last year and five who won in 2013 received more votes each than the 16,601,997 votes that President Duterte received in May 2016. In the House, the district and party-list representatives also obtained tens of millions of votes combined in the last elections. Congress thus represents the expressed will of more Filipinos than any other individual or group in the country.

Congress’ superior electoral pedigree is why it is our democracy’s supreme decision-making body. All major government policies come from Congress. It determines which acts are crimes, who and what to tax, how government money should be spent, etc. Congress also has the sole power to declare the existence of a state of war. And it can impeach and oust our highest-ranking officials.

But there are instances where democratic deliberation in Congress would be too slow to deal with an emergency. Invasion and rebellion are such instances. In contrast, the hierarchical structure of the military, with the president as commander-in-chief, allows the president to respond swiftly to emergencies. Thus, the Constitution gives the president the power to act decisively when the need arises. But congressional deliberation on matters of national concern is still the general rule of our democracy. Congress remains supreme even in times of war or other national emergency, such as invasion or rebellion. It may, by law, authorize the president to exercise emergency powers, but only for a limited period and subject to such restrictions as it may prescribe, and it may withdraw these powers anytime.

Thus, while the President is empowered to suspend the privilege of the writ of habeas corpus or place the Philippines or any part of it under martial law in the instances when public safety requires it, he can do so only for a maximum of 60 days. He must report his emergency actions to Congress within 48 hours from making them. And the President must follow Congress if it decides to revoke the proclamation or suspension.

The President must also follow Congress once it issues guidelines on the proper conduct of martial law. Congress’ greater power to extend or revoke emergency action includes the lesser power to guide and restrict it. And it is Congress’ duty to so guide and restrict, for a democracy must decide upon the most important things democratically. Letting the President alone would only grease the slope down which our constitutional democracy might slide back to lawless dictatorship.

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Bryan Dennis Gabito Tiojanco is a JSD candidate at Yale Law School. He graduated cum laude from the University of the Philippines College of Law.