10 things Duterte can’t do with martial law

Is what you are supporting or protesting actually martial law?

In martial law, our military temporarily governs a hostile area civilian leaders cannot. It goes far beyond troops and checkpoints—the president may deploy these anytime.

If rebels took over Marawi City and the mayor fled, a general may replace him. President Ferdinand Marcos governed the entire country as commander in chief by virtue of General Order No. 1 (1972).

Ex parte Milligan (US Supreme Court, 1866) rejected this extreme definition: “when war exists… (a commander may) substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper.” Such “destroys every guarantee of the Constitution.”

Similarly, we added many protections after Marcos:
1. Rebellion. Our 1987 Constitution allows martial law only “In case of invasion or rebellion, when the public safety requires it.” The Maute Group raised IS (Islamic State) flags in Marawi City. The constitutional law gods—former dean Pacifico Agabin and retired justice Vicente V. Mendoza—accept that rebels tried to take our territory to form a new state.

2. Actual rebellion. But Milligan and our 2000 Zamora case require actual rebellion, not just threat. Thus, former president Fidel V. Ramos argues it should be limited to parts of Mindanao. Sen. Franklin Drilon opposes expanding it to the Visayas or Luzon.

3. 60 days only. Martial law now lasts 60 days only, extendable by Congress.

4. Congress open. The Constitution bars “supplant(ing) the functioning of the civil courts or legislative assemblies.” No padlocking the Senate.

5. Courts open. Chief Justice Maria Lourdes Sereno ordered courts to stay open. Military tribunals may not try civilians where courts function, unlike in 1973, in the case of Sen. Benigno Aquino Jr.

6. No seizures. Based on the 2006 Randy David case, only Congress may order “taking over of privately owned public utility.”

7. Rights stay. The Constitution is clear: “A state of martial law does not suspend the operation of the Constitution.” Free speech and all rights stay. But you cannot make bomb jokes at airports even without martial law, so do not post troop movements on Facebook.

8. No warrantless arrests, searches. Senior Associate Justice Antonio Carpio stressed that martial law in Maguindanao in 2009 (2012 Fortun case) did not allow warrantless arrests, citing the 1988 Aberca vs Ver case.

But when the “privilege of the writ of habeas corpus” is suspended, one cannot question detention for a rebellion case. The government must file charges in court in three days or release you. You may post bail.

In a Department of Defense memo dated May 24, implicitly citing the Constitution, martial law likewise does not allow warrantless searches. But the Supreme Court allows exceptions to getting warrants even without martial law, such as when a crime is in progress.

9. No replacing local government. The president controls the entire national government but only has “supervision” over local governments. Arguably, he cannot replace local officials where they still function, undermining one’s right to elect leaders.

The Constitution allows courts to nullify “grave abuse of discretion,” arguably, like replacing the governor of Batanes
after a Marawi siege.

10. Civilian supremacy. The Constitution commands: “Civilian authority is, at all times, supreme over the military. The Armed Forces… is the protector of the people.”

So does martial law today grant any power beyond governing a hostile area? No—as the Constitution’s framers intended.

Shake off the great psychological impact of martial law. Everything you supported or protested last week is not martial law. The extraordinary power was declared but not yet used—which happened in the Fortun case. Not even the mayor of Marawi City was replaced. No one is detained for rebellion.

So are you supporting or protesting something within the president’s normal powers, not even subject to the 60-day limit? Or something unconstitutional even with martial law, meaning you are fighting the wrong fight?

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