ML’s civil aspect and the law of strict conservatism

Section 18, Article VII, of the Constitution says in part: 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, nor automatically suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ shall apply only to persons judicially charged with rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days; otherwise, he or she shall be released.

The government’s duty, through the Department of Justice, to file the information “for rebellion or offenses inherent in or directly connected with invasion” is the civil aspect of martial law.

If martial law is to be effective, the DOJ before its declaration should be ready with the information for rebellion or offenses inherent in or directly connected with invasion against the offenders. This must be so because the prosecution office has only three days to file the information in court from the time of the arrest; otherwise, the offender shall be released. Of course, for this to happen the prosecutor has to rely on the intelligence service of the police, the National Bureau of Investigation, the military, the Office of the President and the various departments for the evidence required to obtain a conviction.

But much time has passed from the declaration of martial law, and no mass arrest of suspected rebels has been made.

It may be late to start building the cases now—from whatever evidence the authorities may be able to confiscate at the checkpoints (will the real rebels pass through checkpoints with their armaments?) or elsewhere. The element of surprise is gone. Almost certainly, the real rebels who are not in actual combat in Marawi may have gone into hiding. Of course, those Mautes that may be captured in Marawi and noncombatant rebels there who could not as yet be charged in court for obvious reasons will have their day in court.

The military aspect of martial law is now played live in the battlefields of Marawi. After the Mautes are crushed, and proper charges filed in court against them, will there still be need for martial law to continue?

On my wall, Black Holes of Justice Society, in Facebook, someone posted: “Martial law can be used for greater good or for greater evil.” I agree.

Because martial law can be used for greater evil, the Constitution sets conditions for its declaration, limits its life span, and allows Congress and the Supreme Court to review its propriety. The Constitution is concerned about the people who become vulnerable in a martial law situation.

Did President Ferdinand Marcos declare martial law just so the suspects and the innocents among his people could be falsely charged, tortured, raped, or killed? Of course not. He just wanted to reform society, he said. Or he just wanted to, according to his critics, perpetuate himself in power.

But the false charges, the tortures, the rapes, and the killings did occur. Why? Because Marcos could not be in every square inch of the country at the same time, all the time—to control his soldiers.

Did President Duterte declare martial law just so the suspects and the innocents among his people will be falsely charged, tortured, raped, or killed? Of course not. He just wanted to obliterate the Abu Sayyaf and the Mautes from the face of the earth, he said. (I believed him and continue to do so. After all, he has many lofty things to think about in the more than five years ahead of him other than of perpetuating himself in power.)

Will false charges, tortures, rapes and killings now also occur? Maybe no. After all, Mr. Duterte is not Marcos. Or the times and the circumstances may not be the same. But maybe yes. Because he is as finite and as limited as Marcos was. Because his soldiers are as frail and human as Marcos’ soldiers were.

Man or woman being finite and limited, he or she being frail and human, the rule of thumb in martial law is, I like to think, strict conservatism—strictly conservative in scope, strictly conservative in its continued existence.

Virgilio P. Alconera is a lawyer.