Tag Archives: FAQ

FAQ ON MARTIAL LAW

WHAT IS “MARTIAL LAW”?

BRIEFLY: Martial law is founded on necessity and is essentially police power exercised by the executive with the aid of the military, the latter being called upon to assist in the maintenance of peace and order and the enforcement of legal norms. The purpose thereof being the preservation of the public safety and good order in times when the domination of lawless elements cannot be stopped by civil authorities.

IN LENGTH: Tracing the history of the Philippine Constitution will show that it is of American origin, thus, most law books provide for definition derived from American cases and material references.

Westel Willoughby, for one, had the following to say:

                “In the most comprehensive sense of the term, Martial Law includes all law that has reference to, or is administered by the military forces of the State. Thus it includes (1) Military Law Proper, that is, the body of administrative laws created by Congress for the government of the army and navy as an organized force; (2) the principles governing the conduct of military forces in time of war, and in the government of occupied territory, and,…

 (3) Martial Law in sensu strictiore, or that law which has application when the military arm does not supersede civil authority but is called upon to aid it in the execution of its civil functions.”

                 The Martial Law in our Constitution refers to the third definition.

                Martial Law authorizes “the military to act vigorously for the maintenance of an orderly civil government.” – Justice Black, Duncan v. Kahanmoku, 327 U.S”. 304, 323 (1946).

                Martial Law is “the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety… It is the law of necessity to be prescribed and administered by the executive power. Its object, the preservation of the public safety and good order, defines the scope, which will vary with the circumstances and necessities of the case. The exercise of the power may not extend beyond what is required by the exigency which calls it forth.” –Justice Stone, Id. at 335-6

 WHO CAN DECLARE “MARTIAL LAW?

ANS. The President as commander-in-chief pursuant to Art VII, Sec 18 of the 1987 Constitution.

WHAT IS THE “COMMANDER-IN-CHIEF” CLAUSE?

ANS. The Constitution declares the President, a civilian, as the Commander-in –Chief of the Armed Forces of the Philippines (the power covers the Philippine National Police (PNP).

The reason behind this provision is to ensure the supremacy of the civil authorities over the military forces of the government.

The President has control and direction of the conduct of war and, when necessary, may call out such armed forces to prevent or suppress lawless violence, invasion, or rebellion.  However, it is only in this sense that the president may be referred to as a military officer. The President does not enlist in, nor is he inducted or drafted into forces; “he is not subject to court martial or other military discipline.”Swartz, The Powers of the President, p.215 (1963)

The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President holds supreme military authority and is the ceremonial, legal, and administrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his. “As Commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy.” Fleming v. Page, 9 How 603, 615 U.S. (1850)

 WHAT POWER DOES THE PRESIDENT HAVE OVER THE MILITARY?

ANS. Since the President is commander-in-chief of the Armed forces, she can demand obedience from military officers. Military officers who disobey or ignore her command can be subjected to court martial proceeding. Thus, for instance, the President as Commander-in-Chief may prevent a member of the armed forces from testifying before a legislative inquiry, a military officer who disobeys the President’s directive may be made to answer before a court martial. (see Gudani v. Senga, G.R. No. 170165, April 15, 2006).

 IN WHAT INSTANCES CAN THE PRESIDENT DECLARE MARTIAL LAW? (GROUNDS)

Ans. Martial Law depends on two factual bases: (1) the existence of invasion or rebellion, and (2) the requirements of public safety.  (Art. VII, Sec 18 of the 1987 Constitution)

WHAT ARE THE LIMITATIONS/RESTRICTIONS?

  1. Grounds: There must be (actual) invasion or rebellion and public safety requires the proclamation or suspension;
  1. Duration: shall not exceed 60 days, following which it shall be lifted, unless extended by Congress 
  1. Duty of President to report action to Congress: within 48 hours, personally or in writing
  1. Congress may revoke [or extend on request of the President] the effectivity of the proclamation by
  • a majority vote
  • voting jointly
  • If not in session, Congress shall convene within 24 hours following such proclamation or suspension, convene in accordance with its rules without need of a call
  1. The Supreme Court may review the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof
  • in an appropriate proceeding filed by any citizen
  • must promulgate its decision within thirty (30) days from its filing

It is therefore settled that the imposition of martial law or the suspension of the privilege is now a judicial question, not a political one. Note however that this judicial review is only for the Court to look into the sufficiency of the factual basis for the exercise of the power. In Lacson vs. Perez, the Supreme Court said that the President has discretionary authority to declare a “state of rebellion”.

WHAT ARE THE EFFECTS OF A STATE OF MARTIAL LAW?

 ANS.           The definition of the extent of martial law powers is made by way of denials, stating what are not the effects of a state of martial law. Thus:

  1. It does not suspend the operation of the Constitution.

-Therefore, it does not suppress the powers of the various branches of the government.

  1. It does not supplant the functioning of the civil courts or legislative assemblies

Meaning, the ordinary legislation continues to belong to the legislative bodies even during martial law.  It adopts the “open court rule” in Duncan v. Kahanamoku 327 U.S. 304, 324 (1946)which provides that civil courts cannot be supplanted by military courts. 

  1. It does not authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function

-When martial law is declared, civil authorities are not superseded by military authorities. Civil laws are likewise not suspended. 

  1. It does not automatically suspend the privilege of the writ of habeas corpus

-the privilege continues to be available to persons under detention until suspended by the President. (Continue reading or refer to other posts for further discussion the matter)

-it affects only those “persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.”

 RE: SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS 

DEFINE A “WRIT OF HABEAS CORPUS”?

ANS.  A writ of habeas corpus is defined as a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatever the court of judge awarding the writ shall consider in that behalf.

Habeas corpus when translated means “produce the body”. If a writ of habeas corpus is issued by the court, the court is basically ordering a person who has detained another to produce the body of the latter at a designated time and place, and to show sufficient cause for holding in custody the individual so detained.

WHAT IS THE “PRIVILEGE OF THE WRIT OF HABEAS CORPUS?”

ANS.  The privilege of the writ is the further order from the court to release an individual if it finds his detention without legal cause or authority.

WHAT THEN MAY BE SUSPENDED: THE WRIT OR THE PRIVILEGE OF THE WRIT?

ANS. It is the privilege of the writ of habeas corpus (not the writ itself)

WHO MAY SUSPEND THE PRIVILEGE?

ANS. The President

WHEN MAY THE PRIVILEGE BE SUSPENDED? Limitation #1

ANS. “…in cases of invasion or rebellion, when public safety requires it.”

HOW LONG MAY IT BE SUSPENDED? Limitation #2

ANS. It shall not exceed the period of 60 days.

WHAT HAPPENS WHEN THE PRIVILEGE OF THE WRIT IS SUSPENDED?

ANS. When the privilege of the writ is suspended, the person under detention by the government may not obtain his liberty by its use.

                The writ itself may still be issued by the court and the person detained must still be produced in court. However, the official or person detaining him may ask the court not to continue the proceeding any further as the privilege of the writ as to that particular person seeking release has been suspended

                Once the officer making the return shows to the court that the person detained is being detained for an office covered by the suspension, the court may not enquire any further.

 WHEN THE PRESIDENT DECLARES A STATE OF MARTIAL LAW, IS THE PRIVILEGE OF THE WRIT AUTOMATICALLY SUSPENDED?

ANS. No, not automatically.

TO WHOM DOES THE SUSPENSION OF THE PRIVILEGE APPLY? Limitation #3

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

                “…any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

DOES THE SUSPENSION OF THE PRIVILEGE ALSO SUSPEND THE RIGHT TO BAIL?

ANS. NO. ART III, SEC. 13

HOW DIFFERENT IS THE MARTIAL LAW UNDER THE MARCOS REGIME FROM THAT WHICH IS CONTEMPLATED UNDER THE PRESENT CONSTITUTION?

                 In the case of Gumawa vs. Espino, 96 SCRA 403, 403-7 (February 29, 1980), the Marcos Supreme court made the following conclusions:

  1. That the proclamation of martial law automatically suspends the privilege of the writ of habeas corpus;
  1. That the President of the Philippines, “as Commander-in-Chief and as enforcer or administrator of martial law… can promulgate proclamations, orders, and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of the political and social liberties of the people, and to the institution of reforms to prevent the resurgence of rebellion or insurrection or secession of the threat thereof as well as to meet the impact of a world recession, inflation, or economic crisis which presently threatens all nations including highly developed countries…”
  1. That the President of the Philippines, as legislator during the period of martial law, can legally create military commissions or courts martial to try not only members of the armed forces but also civilian offenders for specified offenses.

 

The new Constitution, however, rejects the above Marcos Court pronouncements and now says categorically: “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.”

REFERENCE:

  1. The 1987 Constitution
  2. Revised Rules of Court on Habeas Corous, Rule 102
  3. Bernas, J. (2011). The 1987 Philippine Consitution: A Comprehensive Reviewer
  4. Bernas J. (2009). The 1987 Constitution of the Republic of the Philippines: A Commentary
  5. De Leon, H. (2008). Textbook on the Philippine Constitution
  6. Nachura, AE. (2009). Outline/Reviewer in Political Law

Cases:

  1. Gudani vs. Senga G.R. No. 170265, April 15, 2006
  2. Gumawa vs. Espino, 96 SCRA 403,403-7, February 29, 1980
  3. Lansang vs. Garcia 42 SCRA 448
  4. Lacson vs. Perez, G.R. No. 147780, May 10, 2001
  5. IBP vs. Zamora, G.R. No. 141284, August 15, 2000
  6. Padilla vs. Ponce Enrile, L-61388, April 20, 1983