Calling out vs. martial law

Ian Alfredo Magno

THE rising audacity of lawless elements seems evident with the nonsensical bombing of Davao City, massive jailbreaks, beheading of kidnap victims by, which triggered the ongoing search and destroy operations against the Abu Sayaff; alarming scale of drug operations, bombing of power transmission facilities and the continuing threat of terrorism. Due to this, President Duterte declared a state of national emergency via Proclamation No. 55 on Sept. 4, 2016.

“Fire in the hole!” – Digong must have sounded exactly just that to skeptics who scrambled for media attention to “marry” the proclamation with martial rule. Is it an attempt to muddle the President’s call to perhaps impress upon the greater masa that it is preparatory to martial law? Really? The Constitution and jurisprudence do not seem to agree.

Section 18, Article VII of the 1987 Constitution provides: “The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he 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…”

The existence of lawless violence justifies the exercise of the President’s power to call out the armed forces to assist the police force in preventing and suppressing lawless violence, to promote peace and order among the civilian public. Thus, such power has been nicknamed as the “calling out power.”

Fr. Joaquin G. Bernas, one of the members of the Constitutional Commission that drafted the 1987 Constitution, said during the deliberation that there is a graduated power of the President as Commander-in-chief. First, (1) he can call out such Armed Forces as may be necessary to suppress lawless violence; (2) then he can suspend the privilege of the writ of habeas corpus, (3) then he can impose martial law. This is a graduated sequence. When the President judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review by the Supreme Court and subject to concurrence by Congress. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, his judgment cannot be reviewed by anybody.

In that same occasion, former Supreme Court Associate Justice Florenz D. Regalado, also one of the members of that Constitutional Commission, said that the calling out power is considered as the lesser and more gentle power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law. The latter two involve a curtailment and suppression of basic civil rights and individual freedoms, which requires safeguards by Congress and review by the Supreme Court.

What are the safeguards?

Section 18, Article VII lays them down: “…..Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.  The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President….”

In its analysis of the above provision, the Supreme Court held in the case of Kulayan vs. Tan G.R. No. 187298 dated July 3, 2012: “Under the foregoing provisions, Congress may revoke such proclamation (of martial law) or suspension (of habeas corpus) and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President’s action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification.”

In this same case, the Supreme Court further said that “The power to declare a state of martial law is subject to the Supreme Court’s authority to review the factual basis thereof. By constitutional fiat, the calling-out power, which is of lesser gravity than the power to declare martial law, is bestowed upon the President alone.”

Such a categorical distinction enunciated by the Supreme Court gives life to the spirit and intent of the 1987 Constitution. It elucidates and therefore clearly demarcates that the calling out power is not a species of, neither is it preparatory to, martial law.

(Lawyer Ian Alfredo T. Magno is an associate at Atty. Francis U. Ku & Associates, and is deputy legal officer at Philhealth. E-mail: ianalfredom@gmail.com)