If you are still struggling with what to make of Philippine president Rodrigo Duterte’s declaration of martial law throughout the southern island of Mindanao last 23 May 2017, then you have the current pulse of the Filipino people. Is martial law necessary? Is it an excessive response to the Marawi City Crisis? What are the conditions for its termination? Will it at all be lifted?

To better understand the ‘modern’ 1987 variant of the Philippines’ martial law provisions, I argue first that there are ambiguities that we need to first negotiate – the natural uncertainty as to a martial law declarations’ validity, and ambiguity as to the martial law discourse of the Filipino people. Knowing where the ambiguities are located allow observers to focus on finding a more stable vantage point in gaining a genuine understanding of the modern variant of the martial law provisions in the Philippines. That vantage point is one that focuses on observing how our modern checks and balances to martial law declarations will finally operate and perform.

The Facts and Initial Questions
The facts are straightforward. Marawi City was attacked on May 23 by a small insurgent faction called the Maute Group. The Group is loosely affiliated with, but wholly disowned by, the Moro Islamic Liberation Front, the largest Islamic separatist group with a signed peace agreement with the Philippine Government. The Maute Group has been engaged in firefights with government forces for some years now, with an intensification of activity beginning early last year in Butig, Lanao del Sur.

This latest incident in Marawi City now motivates Duterte’s martial law declaration (the Declaration hereafter), not only over Marawi City, but the rest of the island of Mindanao. In a press conference, Duterte warned that he may declare martial law over the entire country if circumstances warrant it. In questioning the geographical breadth of the Declaration, it escapes attention that the entire country is in a current and uncontested state of emergency due to lawless violence since the 2016 bombing of Davao City.

Does this situation at all merit a martial law declaration? If it does, is the geographical scope overbroad?

Ambiguity: Emergency and Emergency Powers

To answer these questions, we need to first understand emergencies and emergency powers like martial law. The main problem with situations like that in Marawi City is the nature of emergencies – it is difficult to gauge their true extent and all the dangers they pose at the moment they are unfolding. Correspondingly, the nature of emergency powers is such that it allows a president to act decisively even without the benefit of grasping the full extent of the emergency.

It is impossible to provide an a priori list of emergency situations where martial law is allowed or deemed necessary. Thus, at the time a martial law declaration is made by the president, it can only be presumed to be necessary, that is, until deemed otherwise by the checks and balances in the other branches of government.

Is martial law necessary? Is it overbroad in geographical scope? Given the nature of emergencies and emergency powers, the simple answer is that the president decides if it is necessary at the time the emergency unfolds. Duterte’s prerogative here, consistent with constitutional law traditions everywhere, is undeniable. Previous incidents such as the the 2008 War in Mindanao, the Zamboanga Siege of 2013, and the Mamasapano Encounter, all included Islamic insurgent groups, had ramifications to ongoing peace processes related to the muslim autonomous region, and exploded in violent armed encounters. Though none of these merited a martial law declaration, unfortunately for anti-martial law advocates, these cannot be the basis for limiting the martial law prerogative of Duterte. The concept of precedent and the ambiguous nature of emergency are incompatible.

Ambiguity: The Utility of our 1972 Martial Law discourse

The Philippines has an uncomfortable memory of martial law. The late dictator Ferdinand Marcos declared martial law in 1972 and only lifted it in 1981. The surviving legacy of the abuses inflicted during the Marcos era is the reparations process for martial law victims through the Human Rights Victims’ Claims Board. It is understandable that there exists a knee-jerk revulsion within Philippine political discourse to any martial law declaration.

No matter how vociferously some sectors of Philippine society object to Duterte’s declaration based on a memory of the Marcos-era, it is evident that 1) the Philippines already has a ‘modern’ set of martial law provisions; and that 2) the country still has not fully tested current set of the checks and balances. Marcos declared his martial law based on section 10.2 of 1935 Constitution. The current Constitution of 1987, in response to the Marcos-era martial rule, now requires, among other things, that congress convene to decide whether to revoke martial law by a majority vote. It added that the Supreme Court can review the factual basis for a martial law declaration.

Emergent Ambiguity: The usefulness of modern checks and balances

The real point of contention now I argue is not Duterte’s choice in employing martial law, because he has the clear prerogative to do so; rather, whether or not the congressional and court procedures for ratifying or revoking martial law operate as intended. The only other post-Marcos era martial law declaration was made by president Gloria Arroyo  in 2009. This was in response to severe election-related violence in the Province of Maguindanao in Mindanao. At that time, the Court declined to decide on the merits of the declaration since martial law was lifted within eight days. Because of this, it failed to fresh out judicial guidelines on any grey areas in the martial law powers of the president, and the mechanisms of checks and balances.

On this occasion in 2017, the grey areas are emerging. There are interpretations from within congress that the directive to convene only applies if it intends to revoke the declaration of martial law. Moreover, the 60-day limit is extendable by the president with congressional approval; there is however no constitutional guidelines on how long an extension the president can seek and congress can grant. Ostensibly, the constitution does not seem to foresee the possibility of a congress that is ‘friendly’ to the president. Duterte is within the first year of his 6-year term, enjoys high approval ratings, and is allied with a majority of congress. Will the congressional checks on the martial law powers of the president operate ‘as intended’?

It has yet to be seen how the Supreme Court, acting as a checks and balance mechanism, will now operate. Prospective challenges before the Supreme Court could produce a clearly articulated limit if a petitioner files a case. It’s likely then that the current chief justice will not pass on this opportunity to finally pen such guidelines into jurisprudence, whether or not the issue becomes moot.

Worryingly, the president has announced that he will ignore congress and the courts in carrying out his martial law policy. It is not very important to determine whether these are simply misplaced, fighting words typical of Mr. Duterte speeches, or a clear intent to defy the modern martial law provisions. Neither is it important to argue over whether or not a president can declare martial law in such fluid circumstances such as that surrounding Marawi City and the rest of the country. It is, however, vital to demand from congress and the courts their faithfulness in carrying out their mandates as checks and balances against the emergency powers of the president. Only in this exercise can we truly understand the modern martial law provisions of the 1987 Constitution, its effectiveness and its flaws.

 

UPDATES: As mentioned above, there are concerns over congress acting as a check on executive prerogative. Now, we find that both the lower and upper chambers have decided not to convene for the purpose of deliberating the president’s martial law declaration. This illustrates a dissonance between the intended and actual operation of the modern martial law provisions.

UPDATES: Lower chamber convened in plenary, and approved a house resolution supporting the martial law declaration. The house resolution was based on hours-long committee session, including an executive session on national defense department testimony. The plenary session in turn was over in minutes, hearing one objection, and conducting an audible vote (yeas and nays) without need of counting votes. Congress ratifies the martial law declaration.

 

Nick Tobia is a PhD candidate at the National Centre for Peace and Conflict Studies, University of Otago. He was a former civil servant at the national human rights commission in the Philippines, and officer at the regional human rights commission of ASEAN. The views expressed here are his own.

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