Self-inflicted confusion over ‘state of lawlessness’

SINGAPORE—The “state of lawlessness” simply signals calling out the Armed Forces to help “suppress lawless violence,” a normal presidential power explicit in our Constitution. Confused reactions imply that few Filipinos have read the post-Edsa Constitution’s safeguards against martial law—even if our republic was rebuilt on a rejection of martial law.

At 10:20 p.m. last Sept. 2, an explosion killed 14 and wounded 67 at Davao City’s popular night market. By 5 a.m., President Duterte was onsite, telling reporters he was declaring a state of lawless violence. He repeatedly clarified: “It’s not martial law, no such thing.”

He finally quipped: “Lawless violence, discover it for yourself.”

Mr. Duterte also stated that he cannot have everyone frisked as it would be “fascistic.” (Strangely, he also said the army would “run the country in accordance with my specifications” and added the war on drugs to the lawless violence, given the “extrajudicial killings attributed to police.”)

Mr. Duterte was asking reporters to read the Constitution’s Article VII, Section 18: “The President… may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.”

Section 18 also requires Congress to vote on, and the Supreme Court to hear any petition on, a declaration of martial law or suspension of the writ. This is explicitly not required in a call-out of the Armed Forces to suppress lawless violence, which the President as commander in chief may do any time.

No one quoted Mr. Duterte’s explicit invitation to read the Constitution before commenting.

Social media asked whether the state of lawlessness was a prelude to martial law. The next morning, infographics quoting Section 18 confirmed that to suppress lawless violence is indeed something else. The foreign media frenzy continues.

In 2000, to enhance police visibility, President Joseph Estrada deployed Marines to SM Megamall, SM North Edsa, and other malls from Araneta to Makati. With doctrinal overkill, the 2000 IBP vs Zamora decision stressed that the president has “full discretionary power to call out the armed forces,” even to malls.

Estrada’s successor used this aggressively.

In 2006, President Gloria Macapagal Arroyo declared a “state of national emergency” after an alleged coup by “a tactical alliance” of communists and “military adventurists.” Inquirer columnist Randy David was arrested for standing beside ralliers wearing “Oust Gloria Now” shirts on Edsa. Others were arrested without warrant, and the Daily Tribune’s offices were raided.

The landmark David decision ruled that there is no legal animal called state of national emergency, so the president could make whatever declaration she wanted but could not restrict anyone’s rights with these. The warrantless arrests and Tribune raid were thus voided, and then Justice Reynato Puno asked if police even had any legal basis. But the Supreme Court still ruled that Arroyo’s calling out the Armed Forces in itself could not be challenged unless “totally bereft of factual basis.”

These declarations of “state of X” are intertwined with the Inquirer. Beyond David, the case was argued before then chief justice and now Inquirer columnist Artemio Panganiban, by former Inquirer publisher and now International Criminal Court Judge Raul Pangalangan. I was a fresh graduate helping Pangalangan, and David later recounted his outlandish arrest to me.

The Court ruled similarly when Arroyo declared a “state of emergency” in Maguindanao after the 2009 Ampatuan massacre and a “state of rebellion” during the 2003 Oakwood mutiny and 2001 Edsa III riots. Each declaration of state of X and call-out of the Armed Forces was upheld, but other acts such as warrantless arrests were voided. Justice Santiago Kapunan dissented in the first case in 2001, arguing the state of rebellion “partakes the nature of martial law without declaring on its face.”

The point is that Mr. Duterte’s state of lawlessness is indisputably legal. He even cited at 5 a.m. which phrase in the Constitution to read.

Sen. Franklin Drilon knows the Constitution and reacted, “I defer to the judgment of the President,” and advised Mr. Duterte to be prudent.

The state of lawlessness’ legal meaning is far clearer than Arroyo’s state of rebellion and state of emergency. Have we forgotten the landmark David case and how each of Arroyo’s ambiguous declarations was resolved?

When Presidential Legal Counsel Salvador Panelo debated martial law and Mr. Duterte’s war on drugs, he really wanted to say that even without extraordinary steps such as martial law, the President’s daily discretion over the military and law enforcement is extremely broad. The Supreme Court has upheld every call-out of the Armed Forces to suppress lawless violence for decades.

In short, the President can obviously call out Marines for the Davao bombing if he can call them out to guard Megamall.

Are we thus confused solely because most Filipinos have never read the Constitution’s paragraph on suppressing lawless violence and declaring martial law? Do we even know that the Constitution empowers anyone to challenge any declaration of martial law before the Supreme Court or ensure that Congress votes on it?

Does the self-inflicted confusion imply we do not even know what to be vigilant against?

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I detailed calling out the Armed Forces in “Guarding the Guardians: Addressing the Post-1987 Imbalance of Presidential Power and Judicial Review” (86 Phil. L.J. 523 [2012]).

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