Martial law powers are vague

Supporters and opponents of the imposition of martial law in Mindanao have one thing in common: Fear is the element that similarly underlies their respective positions.

Notwithstanding the common reason that is responsible for their viewpoints, advocates and critics of martial law have completely opposite standpoints because they see different faces of fear.

Supporters of martial law see the face of fear in the potential spread of terrorist acts done in Marawi City to other parts of Mindanao, and even to the Visayas and Luzon. To them, the government must be allowed to act swiftly with full military action.

Detractors of martial law see the face of fear in the potential abuses of police and military forces. To them, the extrajudicial killings that are happening under the Duterte administration must not be allowed to further worsen, and the horrific human rights violations under the Marcos regime must not be allowed to happen again.

President Duterte is faced with a double duty. He must see to it that terrorists will not turn the country into the next
Syria or Iraq. He must also see to it that he, through his military and police forces, will not bring back the terrible martial law years of the Marcos regime.

While martial law gives additional powers to the President to deal with terrorist or rebel violence, it can also give rise to military and police violence that will cause more suffering to the people.

But does the President have ample powers to deal with criminals engaged in rebellion or invasion without resorting to martial law? The President has the following powers at his disposal even without declaring martial law: The military can be ordered to assist the police to quell violence; warrantless arrests can be made against criminals in the act of committing any crime; warrantless arrests can be made against individuals accused of rebellion even if at the time of arrest they are not doing any unlawful act because rebellion has been judicially defined as a continuing crime; persons arrested for terrorism can be detained for three days without being charged in court under the Human Security Act; and persons charged with rebellion or terrorism can be jailed indefinitely because these are nonbailable offenses.

If martial law is declared, what are the additional powers of the President? Astonishingly, the 1987 Constitution does not completely specify the President’s extraordinary powers when he declares martial law. The Constitution states merely the “don’ts” but not the “do’s” when the President declares martial law.

Under the Constitution, the President cannot: declare martial law except in cases of invasion or rebellion; extend martial
law beyond 60 days without congressional approval; suspend the Constitution; close the judiciary and legislature; or detain persons involved in rebellion or invasion for more than three days without bringing charges in court.

But can he close or censor the media; ban freedom of speech; prohibit rallies; or wiretap phone conversations? In other words, can the President suspend the Bill of Rights? The text of the Constitution does not expressly grant such powers to him.

How will the Supreme Court decide cases that allege violation of a person’s rights? Will the high court rule that since the Constitution itself states that the President cannot suspend the Constitution even when he declares martial law, he is therefore prohibited from violating the Bill of Rights? Or will the high court decide that since martial law is a “law of necessity,” the President has a clean slate (tabula rasa), and consequently has vast powers to deal with the extraordinary emergency, except those expressly prohibited by the Constitution? Will the high court search for answers in the deliberations of the Constitutional Commission, adopt American principles, or apply Marcos-era jurisprudence?

Interesting and challenging times ahead for the Supreme Court, the Filipino people, and our country.

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