Will it heal or destroy our land?

Tony La Viña

THE evening of May 23, 2017, 10 p.m. to be exact, when President Rodrigo Duterte declared that Mindanao shall be under martial law, will be remembered in the history of island and the Philippines. It could be a watershed moment that turned the tide against extremism and terrorism, ushering in a golden age of peace and development in the island and the country. Alternatively, it will be that moment when the conflicts and violence in our island accelerate and the possibility of peace become elusive for several generations.

Which scenario will come to be will depend on how martial law is implemented in our island: (1) whether the limits imposed by the  1987 Constitution will be faithfully complied with: (2) how our governance institutions, especially Congress and the Supreme Court, perform their constitutional duties related to martial law; (2) whether the executive branch  and the military will be guided by selfestraint in exercising their expanded powers; and, (3) how citizens and citizen organizations respond to the evolving situation.

Was the proclamation justified?

At the outset, let me say that I reject conspiracy theories that have sprouted regarding this Duterte decision. What is happening in Marawi is not staged; it is not a product of a conspiracy to create circumstances so that martial law will be declared. The Maute infiltration of Marawi has been going a while. Extremist terrorism has found fertile soil in Mindanao and this predates the Duterte presidency.

Was/is the situation in Marawi sufficient to justify the declaration of martial rule? Certainly, if the reports of netizens last Tuesday were accurate, there was clearly an uprising in the city that in my view could legally fit rebellion as defined in the Revised Penal Code. However, one must note that by Tuesday evening, the Armed Forces of the Philippines said the situation was under control. It was therefore a surprise to me that martial law would be declared, less than an hour after such a statement was released. I suppose the President was briefed that the situation was under control.

Martial law is justified when there is actual invasion or rebellion, when public safety requires. I would emphasize the last phrase. If the situation is under control, my logical conclusion would be that public safety no longer requires martial rule.

Given the limited nature of the Maute uprising, it is mystifying to me why martial law was declared in the whole of Mindanao. Proclamation no. 216 is quite clear that the events in Marawi precipitated the declaration. Ironically, Proclamation 55 issued last 4 September 2016, after the Davao night market bombing, is more comprehensive in citing the reasons why the declaration of a state of emergency in Mindanao because of lawless violence.

I would like to give the President the benefit of the doubt on this decision. Does he know something more than we do? What is the basis of his knowledge? Is there intelligence information that we need to be aware of that merits an island wide martial rule? Why is it the President keeps on saying that we already have Isis in the Philippines even as military officials keep denying this? When the President told Russian President Putin that Isis has taken over a province in the Philippines, was this based on reports by our military officers on the ground or was this just pure opinion on his part?

It would be good to know that momentous decisions with great impact to our country would be based on evidence that has been validated.

Regardless of the facts, many observers believe that President Duterte was already predisposed to the use of extraordinary powers to combat what he has described as existential threats to the country. He has talked about this in relation to the drugs problem and this is how he also sees the terrorism challenge. In addition, the solutions that he clearly prefers are those which require the employment of force. With that mindset, it was a matter of time before he would take this step of declaring martial law. I do not think there was a conspiracy to make Marawi happen. But that it did simply reinforced the preferred approach of Duterte to use military and/or authoritarian solutions to governance challenges.

When asked, President Duterte said that it will be harsh, that his martial law will be similar to that of Marcos.

Thankfully, martial law under the 1987 Constitution is legally different from what was envisioned in the 1973 and 1935 constitutions. Aside from the legislative and judicial safeguards related to the validity of such a proclamation, where Congress can revoke the decision and the Supreme Court can declare it invalid, the current Constitution is also clear that the Bill of Rights will continue to limit the powers of the President and the military governors he will be appointing. Among others, the great freedoms of freedom of expression, speech, press, assembly and petition cannot be curtailed. Freedom to travel may be restricted based on national security grounds as provided by the Constitution. Most of the rights of suspects and those accused of crimes will also be respected, such as right to a speedy trial, presumption of innocence, custodial investigation rights (right to remain silent, right to an attorney, right to be informed of the aforementioned rights, non-waiver of these rights except in the presence of an attorney), right not to be tortured, right to privacy of communication, and right against self-incrimination.

The rules on warrantless searches must still be complied with, but there will be more leeway to enforcers in checkpoints and when there is actual combat going on. If the privilege of the writ of habeas corpus is suspended, persons suspected of committing rebellion can be arrested without warrants. But take note that the writ can still be used to ask the police or military to produce detained persons; the suspension of the privilege means that such persons cannot be released even if they were arrested without warrants. Nevertheless, charges must be filed against those persons within three days from their arrests.

Civilian courts will continue to function and civilians cannot under any circumstance be tried by military courts as then Senators Ninoy Aquino and Pepe Diokno were subjected to by Marcos. That is why Chief Justice Maria Lourdes Sereno immediately ordered the courts in Mindanao to remain open in this time of martial rule.

Finally, legislative assemblies such as Congress, the Armm Regional Assembly, and the local Sanggunians cannot be abolished. These bodies can continue to legislate as provided by the Constitution and relevant laws.

While the 1987 Constitution tells us what martial law is not, the charter is silent on what it is, its scope, the powers that can be exercised, its relationship to local governments, etc. However, such scope and powers of the President and the military under martial law, including the relationship to local governments, can be derived from the nature of martial law and the legal role it occupies in our constitutional order. It is an extraordinary measure to deal with a serious situation involving public safety. It follows from this that the President and the military can only exercise powers that are relevant to the crisis–invasion or rebellion–that it is trying to address. Those powers cannot be used matters that are not directed related to the situation being resolves.

In my view, martial law powers can be used to effect curfews, evacuations, law enforcement measures, temporary takeover of public utilities, and such actions that are related to address the rebellion of the Maute group but not of any other group that is not mentioned in Proclamation 216.

Martial law powers cannot be used to override the authority of local governments, especially governors and mayors, except in situations where the local government can no longer function. Currently, that seems to be the case for the city of Marawi but not applicable to the province of Lanao del Sur or all the other cities, municipalities, and provinces of Mindanao. Their governors and mayors should be able to execute all their powers as provided by the Local Government Code. It is important that our governors and mayors assert their authority. Creeping authoritarianism must be stopped at the beginning; otherwise, before one realizes it, it has become the culture of governance.

Martial law powers should be used only against the Maute group, the Abu Sayyaf and the Biff (Bangsamoro Islamic Freedom Fighters). It would be outside the scope of Proclamation no. 216 to use such powers against the MILF (Moro Islamic Liberation Front),  MNLF (Moro National Liberation Front) and NPA (New People’s Army).

Martial law is not a catch-all solution to all the problems of injustice, criminality and governance in the country. It is a solution to a specific problem of rebellion or invasion, nothing more and nothing less. (to be concluded tomorrow)

(Tony la Viña of Cagayan de Oro City is executive director of Manila Observatory, former dean and currently professor at Ateneo School of Government, as well as Constitutional Law professor of Xavier University, University of the Philippines College of Law, Polytechnic University of the Philippines College of Law, and De La Salle University College of Law. -Mindanews)