WITH LEGAL DISCUSSION
FURTHER UPDATED WITH A PHOTO ON HOW THE PRESIDENT DISCUSSED THE MARAWI SITUATION BEFORE DECLARING MARTIAL LAW
Breaking News as of 10:00 pm Tuesday March 23, first posted here at 11:36pm March 23: DUTERTE HAS DECLARED MARTIAL LAW IN THE WHOLE ISLAND OF MINDANAO (southern Philippines) FOR 60 DAYS. – from ABS-CBN News, quoting the presidential spokesperson Ernie Abella
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are you awake…? is anyone there awake? (nag-toothbrush lang ako, pagbalik ko, martial law na… i was checking papers while drinking iced milk tea with lots of caffeine and sugar… then took a break to brush my teeth, when i got back, martial law had been declared… is this how martial law should be declared? He called up presidential spokesperson Ernie Abella and told him he had declared martial law as of 10 pm March 23 Manila time. Hindi man lang isinulat at pinadala electronically sa magbabasa… At least si Marcos sinulat nya bago binasa… andyan si Alan, may mga abogado dyan, ang Presidente abogado sya, sana man lang nagpadala ng kasulatan kay Ernie Abella …ano ba naman yung kopyahin mo yung nakalagay sa Constitution, ilagay mong premises iyung mga sinabing situationer ni Defense Secretary Lorenzana, tapos ipabasa kay Ernie Abella … konti namang formality …
martial law by press release… )
The manner by which the President declared martial law does not bode well, legally, as described above (Exhibit “A” hindi man lang sinulat bago i-declare): Expect a slew of Petitions for Certiorari and Prohibition questioning the “sufficiency of the factual basis”. Here is the photo released by the presidential staff, published by the Inquirer this morning, on how the President discussed with the Executive Secretary and Bong Go the Marawi situation before he declared martial law. Exhibit “B” — for the petitioners questioning the constitutionality of the martial law declaration:
Exhibit “B-1”: They talked about the Marawi situation then declared martial law over Russian brandy, Exhibit “B-2”, and hor d’oeuvres, Exhibit “B-3”. Empty chair beside Executive Secretary Medialdea and reflection on the mirror between PDu30 and Bong Go showing the photographer and another empty chair : Exhibits “B-4” and “B-5”, respectively, Your Honor…
(The President should be more careful with the staffwork)
Under the Constitution, the following need to be performed by the President, the Senate and the House for the martial law declaration not to expire in 48 hours:
1.Time limit: 48 hours from 10 pm March 23. The constitutional clock had started to tick last night at 10pm.
2.The President has to report to Congress within 48 hours from 10pm March 23 otherwise, the martial law declaration lapses into being void.
3.Under the Constitution, Congress if not in session shall convene within 24 hours from proclamation. It is in session so it will convene today, it has to convene today.
Congress means Senate and House. BOTH HOUSES po ito. Kelangan nyo pong gisingin si Speaker at si Senate President pagkat kelangan nilang mag-convene ngayong araw, kasi nag-declare ng martial law.
The Constitution provides “jointly voting”. That means Congress (Senate and House) should vote jointly.
4.The President has to report to Congress (both Houses convening jointly). It can be approved or disapproved. Clock is ticking.
Here are other legal issues: First: is the Maute terror group committing invasion? Or is the Maute terror group committing acts of rebellion, as defined in the Revised Penal Code? Here is the martial law provision of the Constitution (in green font, verbatim, below) (martial law can only be declared “In case of invasion or rebellion, when the public safety requires it … ” In other words, martial law can be declared only in case of invasion, or in case of rebellion, when, in either case, the public safety requires it: or: In case of invasion when the public safety requires it; or, in case of rebellion when the public safety requires it.) The Duterte administration can argue that the Maute group, having affiliated itself with the foreign terrorist group ISIS which purports to declare an “Islamic State” thru violence, and having committed numerous overt acts of violence for the declaration of such “Islamic State”, has committed acts of rebellion within the purview of the Revised Penal Code… (that’s already free theory build-up for the government)
Martial law under the 1987 Constitution can only be declared for a maximum of 60 days.
Some misguided news anchors are announcing that the declaration of martial law authorizes the President to order the warrantless arrest of anyone . Wrong. That’s how to make the martial law declaration UNCONSTITIONAL. Go ahead. Make it unconstitutional.
The declaration of martial law does not automatically result in the suspension of the privilege of the writ of habeas corpus. That, the suspension of the privilege of the writ of habeas corpus, has to be expressly declared as well in the martial law declaration, to authorize warrantless arrests BUT only for the crimes of rebellion (or acts directly connected with “invasion” ) and the detention can only last for three days if the person is not judicially charged – if judicially charged, he/she can post bail. (Note however that the military might try to contravene this by contravening the Hernandez doctrine by filing cases of murder, arson, kidnapping, etc. Innocent civilians who are wrongly charged may and should challenge the legality of their arrests).
My fear is that the military and the police might think they could wantonly arrest, beat up, and torture any and all civilians they run into if they cannot find members of the terror group, just to have something to show to President Duterte. For this reason, the local government units, the regional trial courts in the area, and all courts, lawyers groups, people’s organizations, should be on alert.
What about curfew? The Supreme Court did not issue a favorable order for curfew in a special civil action challenging the curfew declaration in QC… So, not necessarily. It can be challenged as well. But if you need to declare curfew in the Maute-occupied areas, make that decision but make sure you have good lawyers and make sure the implementers are disciplined and strictly follow guidelines in the handling of civilians.
Some constitutional- law-guidelines: ( from a post published here in 2008, Sept. 24)
Under the present Constitution, the President can place the Philippines under martial law for a maximum period of only 60 days. The succeeding clauses after that provision, where the President is required, within 48 hours from the declaration of martial law, to report to Congress, and Congress voting jointly, may revoke or extend it, are within the provision on the 60-day limit. Therefore, being within the provision setting a 60-day limit, Congress may extend it but is not allowed to extend it beyond the 60-day limit for that particular declaration.
To illustrate: Let’s say that when the President reports the martial law declaration to Congress within 48 hours and Congress by majority vote [the Constitution says “voting jointly”. The math there is: House 240 members plus Senate 24 members is 264; majority vote of that is 133 votes (more or less depending on the number of House members right now)], Congress can choose not to revoke it but extend it, but only for 60 days or 58 days (subtract the 48 hours that had lapsed).
In other words, if the President wants another 60 days of martial law, he (i’m speaking hypothetically) has to re-declare it, go to Congress again, and jump the hoops again.
That is how elaborate and inordinate the present martial-law provision is; the President jumps through the hoops everytime he wants to extend it beyond the maximum allowed by Congress. And the Supreme Court under said provision still exercises the power of judicial review and can, in an appropriate case, review the “sufficiency of the factual basis” of the declaration of martial law, and where there is no factual basis, set it aside.
So elaborate and inordinate are the martial-law provisions under the 1987 Constitution that the only way that the President can perpetuate martial law is by way of what is commonly called: “self-coup”. That is, the Commander-in-Chief gets the cooperation of the military and the police, and then, forcibly takes over or padlocks Congress, the Supreme Court, the courts, and other institutions of government, seize and imprison everybody who opposes it and shut down mass media organizations and the internet. (shut down the internet for one day and you’ll have a bigger rebellion in your hands)
Here is the martial law provision.
Quote “1987 Constitution. Art. VII. Section 18. 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. 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. 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.
Quote “The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
Quote “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
Quote “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 of habeas corpus.
Quote “The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.
Quote “During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”