BEYOND THE BEND: Old Martial Law vs. New Martial Law

QUEZON CITY (MindaNews / 30 May) – According to Malacañang, Martial Law over the entire island of Mindanao will “strengthen the hand of government in dealing with terrorists”. Former president and now Manila Mayor Joseph Estrada even believes, “Martial law should be extended until the last terrorist has fallen.”

Many Filipinos, Mindanaons among them, hope that martial law will ultimately bring peace and security in Mindanao. They expect the terrorists and other trouble-makers to be utterly destroyed at the end of the 60-day martial law period. The President even promised to be “harsh”, presumably in treating these criminal elements in Mindanao.

But what is it about Martial Law that makes Mindanaons optimistic the President will be able to finally quash the villains in their midst? Indeed, what can the government do under Martial Law that it could not do before?

The answer to these questions must begin by understanding the dichotomy between the Old Martial Law and the New Martial Law first raised by Rene Sarmiento, current chairman of the Parish Pastoral Council for Responsible Voting and former Comelec Commissioner and member of the 1986 Constitutional Commission.

The constitutional imprimatur of the Old Martial Law is Article VII, Section 11(2) of the 1935 Constitution, to wit:

“The President shall be 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, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.”

Patently, as far as setting the boundaries of martial law, the 1935 Constitution was very sparse. Hence, when President Marcos declared Martial Law in 1972, he was able to assume complete authority over the state. Consequently, he wielded absolute power over everything and everybody in the country.

The New Martial Law is totally different. Article VII, Section 18 of the 1987 Constitution has established a severely limited martial law regime as evidenced by this specific prescription-

“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.”

Simply put, under the 1987 Constitution, the President will be bound by limitations on state action set forth in the Constitution even under Martial Law. The extraordinary powers enjoyed by Marcos during his Martial Law reign is no longer available. Meaning, check points and warrantless arrests are permitted now but still only within the parameters established by the Constitution.

Indeed, immediately after the President released his Martial Law proclamation the Department of National Defense issued a memorandum to its personnel stating-

“Any arrest, search, and seizure executed or implemented in the area or place where martial law is effective, including the filing of charges, should comply with the revised rules of court and applicable jurisprudence.”

And just to quell any doubts as to the scope of the New Martial Law regime, Armed Forces of the Philippines spokesman Brig. Gen. Restituto Padilla was quoted saying, “critics should understand that martial law under President Duterte is different from what was imposed by dictator Ferdinand Marcos.”

So as far as law enforcement goes, government has essentially the same power under Martial Law as it had before Martial Law. Hence, it is quite hard to imagine what has changed for the government in their effort to destroy terrorists given the number of limitations imposed by the Constitution.

In stark contrast however, is the response of the United Kingdom (UK) to their own recent terrorist attack. The UK, London and Manchester at least, is now a virtual police state. Within a week from the concert bombing, their security forces have raided the homes of suspected terrorists, seized vital evidence and made several arrests based on suspicion alone to obliterate any remnants of a terror cell. Most crucial of all, police and soldiers armed to the teeth are now patrolling the streets. Interestingly, despite these draconian moves, there was no Martial Law declaration from Prime Minister Theresa May.

There is actually no need for one because since 2000 the UK Parliament has enacted anti-terrorism laws that empower law enforcement to act swiftly and decisively against terrorists. For example, the Anti-terrorism, Crime and Security Act 2001 allows uniformed police “to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments.” [See c. 24, Part 10, Section 96, Article 23B (2)] Moreover, the Counter-Terrorism Act 2008 allows police to enter (if necessary by force) and search premises for the purpose of determining whether the person (suspect) has absconded. [See c. 28, Part 7, Section 78, 7A (1)]

Presently, we only have two anti-terrorism laws, the Terrorism Financing Prevention and Suppression Act of 2012 and the Human Security Act of 2007. For various reasons, these pieces of legislation have not been effective in dealing with terrorists in the country. But take note of Section 17 of the Human Security Act:

“Any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.”

So, unless there is already a declaration by the courts we are not aware of, the Maute Group technically may not even qualify as a terrorist group under our laws. Debates about the necessity of Martial Law in Mindanao may have been for nothing after all.

Nevertheless, the fact remains Mindanao has long suffered the terror sown by violent criminal groups. Lawmakers owe it to them to immediately recalibrate our anti-terrorism laws to really empower and equip our security forces to destroy ALL villains in the island.

(MindaViews is the opinion section of MindaNews. Atty. Michael Henry Ll. Yusingco is a practicing lawyer. He is the author of the book, Rethinking the Bangsamoro Perspective. He researches on current issues in state-building, decentralization and constitutionalism.)