Revisiting the constitutional proceedings on martial law » Manila Bulletin News



Dr. Florangel Rosario Braid

By Dr. Florangel Rosario Braid


We expected that Malacanang would respond to President Duterte’s remarks about ignoring Congress and the Supreme Court, saying that he would only  listen to  the AFP and the PNP.  The President does not intend to bypass  these institutions, it assures us.

From  news reports,  the Armed Forces has already full control of Marawi City and that the PNP is now conducting  clearing operations.  The  joint meeting by both houses of Congress on the President’s report on Maute attack that triggered the martial law declaration may take place anytime soon. But what can we expect from their deliberations?  And what is going on in the President’s mind?  If he thinks the attacks are related to his war on illegal drugs, is he now thinking of extending it beyond  Mindanao?

I thought I should go over the proceedings of the 1986 Constitutional Commission so that I could make sense of what is going  on, following  the President’s declaration of martial law. It was not easy reading – the volumes were heavy and after 31 years, some of the pages had turned brown. I would have had an easier time if I had a legal background. But what motivated me was that I felt that we must persist in searching for anything that can help us understand what is going on.  It is not enough to know that when Pres. Duterte says “I will not listen to Congress and the Supreme Court,” I should just take that statement with a grain of salt.

I hope some of our law students could go over some of the pages in the Proceedings….. and perhaps discover gems that I had overlooked.

The following exchange and debate during the drafting of the Article on the Executive by the 1986 Constitutional Commission may provide some ideas on how the drafters of the Constitution tried  to balance the right of the President to be granted extraordinary powers during an invasion and rebellion as well as protect the citizens by allowing for a “vigorous  representation of the people through their Congress when an emerging measure is in force” (Com. Ople).

The draft of Section 18 of the Article on the Executive was prepared by a committee chaired by Commissioner Sumulong.   It was the belief by most members of the Commission that the first act in the event of lawless violence is to call out the armed forces to suppress the  violence. And he can only declare martial law in the case of invasion or rebellion.  But the invasion that was envisioned was different from that of 28 foreigners who had joined the Maute group in Marawi a week ago.  Commisssioner De Castro draws this invasion scenario: “An external force lands in Lingayen Gulf. It is not too far from Malacañang so there will be no chance for the President to declare martial law or to suspend the privilege of the writ…Thus, the declaration and suspension of the writ  becomes useless.  In other words, when there is actual invasion and rebellion, the President may have no time to consult Congress.

Because of time and other constraints, Com. Monsod proposed to delete the line “concurrence of at least a majority of all the members of Congress” from Com. Padilla’s proposal –  “he may, for a period not exceeding 60 days suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under Martial law. Within 48 hours from the proclamation or the suspension of the privilege, the President shall submit a report in person or in writing to Congress.” (Ople).

The Congress, voting jointly, by a vote of at least a majority of its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.

Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. (Committee draft  with amendments from various members)

Those who actively participated in the debate and refinement of the above provision included the main  drafters of the amendments namely,  Commissioners Padilla, Monsod, Bernas, Davide, Regalado, Concepcion, Ople,  and Natividad,  De Castro, Suarez, as well as  Garcia, Bacani, Romulo, Rigos, Nolledo, Rodrigo, Guingona, Bengzon, Maambong, Rigos, Rama,  Azcuna, and Aquino.  The amendment “initiative” of the President  instead of  “petition” was introduced by Com. Azcuna.    Com. Aquino  introduced the amendment  “which revocation” shall not be set aside by the President.”

The Congress, if not in session, shall, within 24 hours following such proclamation or suspension, convene in accordance with its rules without need of a call. (Davide)

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation or the suspension of the writ or the extension therof, and must promulgate its decision within thirty days from its filing.

A state of martial law does not suspend the operation of the constitution, nor supplant the  functioning of civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians.

The suspension of the writ shall apply only to persons judicially charged within three days, otherwise he shall be released. (Padilla, with amendments)

There was also debate on original committee draft of  the phrase “voting separately” Com. Bernas suggested the need to discuss it as the body had already removed the necessity for concurrence of Congress for the initial imposition of martial law.  If both houses had to vote separately for purposes of revoking martial law and suspension of the writ, it would make it difficult for Congress to act quickly. After considerable debate which included suggestions of having only one chamber, either the  Senate or the House vote on the revocation,  the members decided to vote on  whether to “vote separately” or “vote jointly” There were 13 for “separately” and 24 for “jointly.”

In the case of variance of decision between the Supreme Court and Congress, Com. Bengzon asks Com. Bernas, “Whose decision will prevail?”  Bernas reply was:  “The Supreme Court.” And if Congress decides to recall before the Supreme Court issues its decision, does the case become moot?  The reply was “Yes.”

What was the  rationale for deleting “concurrence of Congress”?  This amendment approved by 33 members and 8 against, was necessary because in actual invasion, the President has to act quickly. This declaration is only good for 60 days. We may not have any freedom to speak of after 60 days, argues Monsod.  Further, the right of the judiciary to inquire into the sufficiency of the factual basis always exists.

Com. Bacani says he voted “yes” because it may not be possible to get the concurrence of Congress. A good president can also safeguard human rights and he does not want to emasculate the powers of the president. But Com. Bennagen who voted “No”  said  we can never emasculate the power  of the president.  Com. Garcia who also voted “No” saide that it is important to have the concurrence of the representatives of the people.  Com. Sarmiento, Com Gascon, and Com. Villacorta, Com. Suarez,   and Pres. Cecilia Munoz Palma  voted “No.”  Sarmiento cited the untold sufferings of the people; Gascon, the evils of a dictatorship.   Suarez  noted the potential exploitation of constitutional powers, Villacorta said  we should trust the judgment of the legislators and their ability to discern dangers to public safety.  Pres. Munoz Palma recalled the promise she had made which is that if the Opposition comes into power, one thing she would do is to try to limit the power of the President in suspending the privilege of the writ of habeas corpus and declaring martial law.  Com. Ople who said “Yes” noted the countervailing safeguards that would make it difficult for a President to abuse the power.

These excerpts from the proceedings on the debate on martial law and the suspension of the privilege of the writ of habeas corpus can be found in the ff. pages:  pp. 468-486  and pp. 493-514,  Vol. 2 of the Record of the Constitutional Commission


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