CAGAYAN DE ORO CITY (MindaNews / 25 May) — 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 the 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 becomes 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 self-restraint 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 netcitizens 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 Philippine 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.
The Duterte mindset
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.
What martial law is not
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.
What martial law includes
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.
Responding to martial law
Our institutions, national and local, and our executive (including military), legislative, and judicial institutions will be severely tested in the next two months, the 60 days when the state of martial law is in effect. For martial law to be a positive experience, our institutions need to work together to ensure that rights are protected and abuses are prevented. It is not enough to trust the President and the military to do the right thing.
Congress must be pro-active by monitoring the implementation of martial law rules on the people. Under the 1987 Constitution, the President must submit a report in person or in written form to Congress within 48 hours of declaring martial law. If Congress were not in session, it would need to convene in 24 hours without need of a call. But since Congress is still in session, there is no need to convene. If both Houses so desire, they may convene jointly to consider the revocation of the proclamation. While that may not be necessary, if there is a clear majority that will sustain the President’s decision, it would still be prudent in my view to have such a joint session to deliberate on the decision and more importantly to establish a bicameral monitoring system that Congress could use to make sure the limits laid down by the Constitution on the exercise of martial law powers are followed. The work of that bicameral entity could also be the basis of a decision to terminate the state of martial law earlier or to extend it after sixty days.
The Supreme Court must scrutinize the factual basis of the declaration and lay down guidance on what exactly are the powers allowed under martial law. For sure, several petitions will be filed contesting the validity of Proclamation No. 216. Those petitions must be heard and given due course if they proffer valid arguments. Hopefully, by the time the case is heard, the President would have issued several implementing orders already. Those must also be examined to make sure they conform to the Constitution.
The military and police must exercise self-restraint; otherwise, martial rule will instead of defeating it contribute to the growth of rebellion as it did during the Marcos years. The Moro National Liberal Front and the New People’s Army became strongest in the 1970s. Most of this growth was in Mindanao which suffered most from martial law. Repeating this history must be avoided at all costs. In this respect, I am glad that Western Mindanao Command Chief Major General Carlito Galvez, an officer and a gentleman from what I know, has made it clear that the military will enforce their mandate “in accordance with the law and with respect to human rights and the International Humanitarian Law.”
The role of citizens
In the past, I have written that extraordinary powers should only be invoked as a last resort. If options, less ominous, are conferred to the executive by the Constitution and the laws sufficient to meet the declared national emergency, then by all means they must be preferred. Indeed, the slippery slope of frequent recourse to an emergency rule is the ever-present possibility that such will slide into a permanent and unconstitutional regime. For now, Duterte’s declaration does not appear to lead us to that slope but we must be vigilant because we are inching nearer to that with the declaration of martial law.
Citizens must exercise their rights under the Bill of Rights. They should not accept its dilution. We must hold President Duterte to his promise that martial law will affect only the law breakers and that the law abiding has nothing to fear.
Beyond martial law
If I am asked today how I think history will judge May 23, 2017, I am inclined to say that most likely, it will be judged the same way September 21, 1972 has been judged. If Marcos was not able to solve the problems of Mindanao and the country in the fourteen years of his dictatorship, where he held absolute power and could tap some of the best and the brightest of the country to work for him, why will it work this time?
Fellow Mindanawons, our colleagues from KONSYENSYA DABAW, have expressed their disappointmet at President Duterte’s decision to declare martial law in our island. They cannot understand why “the first Philippine president to come from Mindanao, instead of shedding more illumination on the problems of Mindanao, has taken recourse to actions that are reminiscent of the very dark days of martial law under Marcos.” According to them, this is worrisome: “Marcos used Mindanao’s problems as among the justifications for issuing Proclamation 1081. But martial law circa Marcos did not make things better for Mindanao. It made things worse, a key reason being poor understanding of, and response to the roots of the problems.” “With past experiences of large-scale repression against Mindanawons, and so much at stake in Mindanao’s present and future, we cannot be trusting and naively believe that martial law under President Duterte would be a better experience,” said these colleagues.
The worst case scenario in the near future is the destruction of Marawi. What happened to Jolo in 1974 must not be repeated; if Marawi is burned down, no matter who is at fault, there will be no peace for generations. I am of course for the employment of the full force of the law in the city against the extremists and terrorists. I appreciate and laud the restraint of our military to avoid civilian casualties and avoid extensive damage. That must continue.
I agree with KONSENSYA DABAW that it is simplistic and not right to reduce the Marawi incident to one of ‘violent extremism’ and terrorism which requires a full militarist response. Indeed, “Much of what is referred to as ‘violent extremism’ around the world are rooted on, and aggravated by factors of inequality, exclusion, marginalization, structural violence, and inability to deal with pluralism in societies.” “The imperative is for responses that do not simply counter ‘violent extremism’ but prevent it, address root causes, and build new alternatives. Thus, we need to reframe the Mindanao situation, rather than revive the inaccurate narratives and brutal formula of old,” per these Mindanawons.
More than the declaration of martial law, which in fact can have the perverse result of worsening the situation of unrest and intense social conflicts, it is the peace processes with the MNLF, MILF, and the CPP-NDF-NPA (Communist Party of the Philippines-National Democratic Front-New Peoples Army) that will change the situation in Mindanao.
If the peace processes currently going on somehow will survive this new development of martial rule and result in the just resolution of legitimate demands, then the historical judgment on the Duterte Mindanao legacy will not be harsh. In fact, it will be assuredly positive.
(MindaViews is the opinion section of MindaNews. 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 Salled University College of Law).