Who’s still afraid of martial law?

Even after the Supreme Court upheld the constitutionality of Proclamation No. 216, the martial law (ML) edict, by a large majority (11-2-1-1); even after Congress, in joint session, extended it till the end of 2017 by a larger majority (261-18); and even after President Duterte, during his last State of the Nation Address (Sona), vowed no nationwide ML because he is “not stupid,” some people are still wary of it.

Marcos’ ML. They grimly recall the abuses and excesses of the ML instituted by Ferdinand Marcos in 1972.

They remember how he abruptly closed Congress and clothed himself with dictatorial powers, including lawmaking by presidential decrees and letters of instruction. And how he later forced the adoption of a new constitution in 1973 via an overwhelmed Constitutional Convention and a dubious raising of hands during barangay meetings, instead of a nationwide secret balloting.

On the day he proclaimed ML, Marcos caused the mass arrest and indefinite detention of his political enemies, the closure of newspapers, TV and radio networks (later allowing the operation only of those singing hosannas to his regime), and the deprivation of the rights to life, liberty and property without due process. Even the right to travel was restricted. Only a few favored ones were given “travel permits” to go abroad with a maximum of $200 for hotel and other expenses.

Mass actions, demonstrations and other forms of free speech were banned. Arrests and searches were indiscriminately conducted without judicial warrants. Judges were intimidated, defanged, or otherwise replaced with cronies and subalterns.

Duterte’s ML. In contrast, none of those has happened after President Duterte imposed martial rule and suspended the privilege of the writ of habeas corpus in Mindanao.

Congress, the local legislative assemblies and the courts are freely functioning. Even the local government unit in Marawi is open. No TV or radio station or newspaper has been forcibly closed.

No mass arrest and detention of political enemies has happened. The right to travel remains inviolable, except for Marawi residents who were forced to flee their homes due to the fierce fighting, not due to ML.

“[M]artial law does not suspend … the Constitution, neither does it supplant the operation of civil courts or legislative

assemblies. Moreover … the Bill of Rights remain[s] in place … [and the suspension of the privilege] applies only to those judicially charged with rebellion” or invasion. (Lagman vs Medialdea, July 4, 2017)

Clearly, ML is not evil per se. If it were so, the 1987 Constitution should have abolished it instead of just restricting it. Indeed, it is a constitutional weapon against rebellion and invasion, when public safety requires its use.

Victory for Constitution. In a larger sense, what has happened and is still happening is a victory of our 1987 Constitution. It successfully removed the sting of the Marcos-style ML. Credit should also be given to the administrators of the Duterte–style ML, Defense Secretary Delfin Lorenzana and Armed Forces Chief of Staff Eduardo Año. They are conscious that history will ultimately judge them.

I think President Duterte is well aware of ML’s limitations. He has said more than once that if he wants to be a dictator, ML is no longer the way. To be that, all he needs is “to throw away that piece of paper called the Constitution” and to rely on the raw power of the military and the police. For indeed, when guns speak, laws are silent. Something, I think, he does not wish to happen.

Back to his Sona, the President explained that he turned to ML because it “is the fastest way to end the rebellion in Marawi and Mindanao.” If you ask me, he does not even need ML because, as Solicitor General Jose C. Calida told the Supreme Court, ML is just an “exclamation point.” It does not grant any new power (although the suspension of the privilege does).

But then, Rodrigo Duterte is the President. I am just a humble retired jurist. The discretion on whether to impose ML is solely his, not mine or anyone else’s. When done in accordance with the Constitution, the exercise of his sole discretion must be respected.

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