Aquino right to nix ‘Yolanda’ martial law

It is unconscionable how Filipinos can treat martial law so lightly less than a generation after the Marcos dictatorship and barely three years after the Arroyo administration. It is alarming how the Aquino administration took several days to respond that it is unconstitutional to declare martial law after a calamity, even one as devastating as Supertyphoon “Yolanda.”

Our post-Edsa Constitution revolves around safeguards against martial law. It most prominently strengthened the judiciary, hoping it would more firmly stand against presidents after Marcos. The most obvious restriction is how the Constitution authorizes the president to declare martial law only “[i]n case of invasion or rebellion, when the public safety requires it,” for 60 days only and subject to both congressional and judicial review.

This seemingly obvious restriction was highlighted when President Gloria Macapagal-Arroyo declared martial law in Maguindanao days after the 2009 Ampatuan massacre. Although the Supreme Court case Fortun v. Macapagal-Arroyo was dismissed because she withdrew martial law after eight days, Senior Associate Justice Antonio Carpio vehemently dissented that she violated the restriction. There was obviously no invasion. Nor were the Ampatuans, Arroyo’s staunch political allies, trying to overthrow the government. Carpio concluded: “The Ampatuans’ amassing of weaponry, including their collection of armored cars, tanks and patrol cars, merely highlights this political clan’s unbelievably excessive power and influence under the Arroyo administration.”

Arroyo was previously accused of declaring martial law in all but name. A seemingly innocuous ruling during President Joseph Estrada’s term set a dangerous precedent. In 2000, his deployment of marines in malls to augment police visibility was challenged. As a lesser power, our commander in chief may “call out” the armed forces to suppress “lawless violence.” Instead of simply conceding the deployment was fair under this “calling out” power, the Integrated Bar v. Zamora decision broadly affirmed “a discretionary power solely vested in [the president’s] wisdom.”

Arroyo proved far less benign. She declared a “state of rebellion” in 2001 in the face of the “Edsa Tres” protests. The Court dismissed challenges to this, although it admonished the government not to make illegal warrantless arrests. One challenger, Sen. Miriam  Defensor-Santiago, brandished a pistol on TV and dared police to arrest her.

Arroyo again declared a state of rebellion in 2003, faced with the Oakwood mutiny. This time, in Sanlakas v. Executive Secretary, the Court ruled that a state of rebellion has no legal meaning. It is “an utter superfluity” that may not restrict constitutional rights. However, this led the Court to conclude it was not martial law given another name. The declaration was quickly withdrawn before the Court ruled.

Perhaps emboldened, Arroyo issued Proclamation 1017 in 2006, which declared a “state of national emergency” after decrying an alleged coordinated effort by “military adventurists” and “the extreme Left” to overthrow the government and assassinate her. Rally permits for Edsa’s 20th anniversary were canceled, Inquirer columnist Randy David was arrested at Edsa, groups heading to the Edsa Shrine were dispersed, and the Daily Tribune’s office was raided. David v. Macapagal-Arroyo read, “The raid, according to Presidential Chief of Staff Michael Defensor, is ‘meant to show a ‘strong presence,’ to tell media outlets not to connive or do anything that would help the rebels in bringing down this government.’”

The Court, bound by previous cases, declared Proclamation 1017 valid where it was “calling out” the armed forces but invalidated many acts committed under it, such as David’s warrantless arrest, the Tribune raid and restraints imposed on the media. This alleged virtual declaration of martial law followed the pattern: declaration of a “state of rebellion” or “state of national emergency,” warrantless arrests and other challenged acts, and the declaration’s withdrawal after several days. Arroyo arguably stymied the constitutional restrictions on presidential power by using terms with just enough legal ambiguity.

The seemingly innocuous calls for President Aquino to declare martial law in Leyte in 2013 must shock us because they imply the term has no more emotional impact. We belatedly looked up the constitutional provision on martial law that we read in Grade 6 social studies classes. How quickly the Filipino forgets, and it is painfully clear that Edsa is a historical event to first-time voters.

Amid rumors that George Washington would step down as commander in chief to return to his farm at the American Revolution’s end, Britain’s King George III exclaimed, “If he does that, he will be the greatest man in the world.” Perhaps Mr. Aquino deserves to be the greatest man in the Philippines. Indeed, he already has all the power to order the police and military to reimpose order in Leyte without supplanting its elected civilian leaders. The social media made much of Mr. Aquino’s alleged walkout from a Leyte meeting, yet no one considered what an insult it must have been for an Aquino to be asked to declare martial law under the Constitution his late mother passed. The President has been criticized for reiterating the need to investigate past misdeeds once too often, but perhaps the calls for martial law showed why he needs to reiterate the past to us.

The research of Oscar Franklin Tan (facebook.com/OscarFranklinTan, Twitter:(@oscarfbtan) on presidential vs judicial power was published in “Guarding the Guardians” (86 PHIL. L.J. 523 (2012)).