Why martial law must end

DEVENTER, The Netherlands — Martial law appears to be a success. Many feared a return to dictatorship when it was declared last May and extended last July. Yet we saw no systematic suppression of dissent, no mass arrests and secret torture cells, no nationwide martial law.

General Order No. 1, signed by Executive Secretary Salvador Medialdea, reiterated “limits prescribed by the Constitution” and “the constitutional rights of the Filipino people shall be respected and protected at all times.” It enjoined the Commission on Human Rights “to zealously exercise its mandate.”

Defense Secretary Delfin Lorenzana and Armed Forces Chief of Staff Eduardo Año are heralded as paragons of professionalism. Prof. Richard Heydarian wrote beautifully in The New York Times (“Not Duterte’s personal army,” 6/14/17) that today’s martial law is different because today’s soldier is different, a professional unwilling to serve as political pawn. Our Constitution’s phrase “The Armed Forces of the Philippines is the protector of the people” transcended from obscure bar
exam question to defining creed.

What Medialdea actually signs, beyond off the cuff rhetoric, matters.

Yet we shied from understanding the legal contours. Few realize that the first “martial law” arrest order against Maute group members invoked the “continuing crime” doctrine, not martial law. It was enforced nationwide; martial law covers Mindanao only.

We refuse to grasp that martial law has nothing to do with military offensives. Recent operations against communists fell under the President’s ordinary commander in chief powers. Even setting up checkpoints can be done without martial law.

Thus, it never made headlines when Solicitor General Jose Calida candidly argued to the Supreme Court that martial law confers no new powers where there is no actual combat. Nor when Medialdea reiterated this on the floor of Congress when martial law was extended.

We ignored the key question put to the Supreme Court: Can martial law exist where there is no actual fighting?

The 1987 Constitution limits martial law to cases of “actual” rebellion or invasion. Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio and Justice Benjamin Caguioa, thus, powerfully dissented that martial law should have been limited to Lanao del Sur, where the actual fighting was.

The majority justices countered that leeway must be given for Mindanao’s complex social map and the mobility of its armed groups. Justice Diosdado Peralta counseled against requiring “piece-meal” declarations of martial law as fighting spreads.

But this critical debate was undermined by hype that Justice Marvic Leonen was the sole dissenter because he insisted—with tenuous bases—that martial law is invalid even in Marawi City. The ignorant astoundingly managed to brand Sereno, Carpio and Caguioa as “partial” dissenters.

Ironically, we failed to appreciate our Constitution’s greatest safeguards.

My generation of lawyers never expected to see martial law return in our lifetime. It is thus imperative for us to document the new, conscientious martial law for use against future dictators.

The Supreme Court declined to explicitly define martial law narrowly as the power to administer combat zones by replacing civilian government with the military. We must thus emphasize Calida’s proposition before the Supreme Court that post-Edsa martial law is a mere exclamation point, a symbol and portent with no legal effect outside actual combat zones. Such restraint must influence other crucial debates, such as the one on broader antiterrorism laws.

But the final point is that if the new martial law began conscientiously, it must necessarily end conscientiously. If fighting has ceased in Marawi and martial law’s legal basis has run its course, its last two months must be a clear transition to civilian rebuilding.

If we failed to embrace our Constitution’s protection, let us at least belatedly buttress the simplest one: Martial law must be a temporary power. Our commanders must recall the Chinese military aphorism: When one has achieved victory, stop.

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