Is martial law the answer?
What President Duterte's declaration of martial law in Mindanao means
(SPOT.ph) In our country, Martial Law has been imposed four times. The first was by President Jose P. Laurel on September 21, 1944, effective the next day. The second was announced by President Ferdinand E. Marcos on September 23, 1972 (he seems to have signed it on the 22nd but backdated the proclamation to September 21). Both these proclamations were national in scope. The third was by President Gloria Macapagal-Arroyo on December 4, 2009, covering the province of Maguindanao. The fourth, covering the entire island of Mindanao, was by President Rodrigo Duterte late in the evening, Manila Time, of May 23, 2017. It comes months after the President’s September 4, 2016 proclamation of a State of National Emergency due to “lawless violence in Mindanao” which still stands.
You might ask, what provoked this proclamation? The armed confrontation in Marawi City, which resulted from an attempt to apprehend the terrorist Isnilon Hapilon early Tuesday afternoon. Bluntly speaking, it took quite some time for people to notice, then care, about Marawi City being in the midst of an urban assault.
Along the way there were rumors, much-shared on social media, of the armed forces preparing to conduct aerial strikes on the city; and a concerted appeal by activists and others, to prevent the armed forces from doing so, even as others angrily demanded to know why the armed forces seemed unable to swiftly smash the Maute Group which, as photos posted online showed, not only responded ferociously to the joint AFP-PNP operation that failed, but quickly grew in scope, including the Maute Group people raising the banner of ISIS.
Many unanswered questions remain. We have been told by the Secretary of National Defense that there was intelligence, but it was poorly interpreted. We have been assured by the armed forces, that what took place was planned, and not a surprise, and that furthermore, that the situation is under control, the Maute Group having fled after it burned down some homes and other buildings. The military says that isolated reports (by this they probably mean both news reports and tweets, FB posts, and pictures from Marawi residents) gave the impression of enemy swarming but what was happening was isolated attacks by sympathizers, as the rebels fled. The military further denied stories of proposed bombing by air, or hostages being taken in a hospital, and so on.
Time will tell if the military can assure the public that their narrative is the most accurate. We know little else besides there being the destruction of property, traumatized Marawi residents, and an alarmed nation, and that the incident claimed the life of one policeman and two soldiers.
Which means one question that needs to be asked is, if President neither Fidel V. Ramos, when 200 soldiers were killed in an encounter with Misuari forces, nor President Joseph Ejercito Estrada, after incidents like the Kauswagan attack in Lanao del Norte by the MILF did not proclaim martial law, and if President Arroyo did so only in one province after the greatest single massacre of civilians in living memory, what, exactly, is epic enough in scale and scope, to justify martial law over all of Mindanao now?
We don’t know. If you look at the military’s statements, it doesn’t seem to know either. Besides our having been told that the President cut short his visit to Russia and has proclaimed martial law over all of Mindanao, and comments, here and there being pieced together by the media, we know little as to what happened, and why the President believes he has no better option that to impose martial law.
But precisely in light of the President repeatedly having mentioned martial law over the past year (he has said he wanted it, then said it was toothless so useless, then said it should be given teeth and used, then said he didn’t want it—but might be forced to proclaim it—then said no he didn’t want it, then said he might be forced to do it, and most recently said he will do it just as Marcos did it), a more helpful question might be, did the goings-on in Marawi City really justify the President’s proclamation, or did it finally give him an excuse to do what he has long wanted to do, anyway?
I’ve seen voices on line loudly insisting that being from Mindanao, they have nothing to fear, outsiders should butt out, because after all they trust their fellow Mindanawon, the President, to do what is right by them.
The problem with these points of view—the President’s pining for Marcos-style martial law, some loyalists saying they have absolute trust in the President—is the Constitution. It neither presumes, nor concedes, absolute trust to any chief executive when it comes to motives or intent, when proclaiming martial law. Instead, it aims to subject any martial law proclamation to—hopefully—thorough public scrutiny, according Congress and the courts, a chance to weigh in. This, of course, assumes a majority of the people who compose both institutions, are not only capable of being objective, but of understanding both the spirit, and not merely the letter, of our laws. We forget how Chief Justice Concepcion went into early retirement because he was broken-hearted over how his fellow justices failed to boldly confront the arguments and methods for executing Marcos’ martial law, and instead, surrendered to it, and blessed it. All the rules in the world can exist but it takes people to live up to those rules, otherwise they’re useless.
The last time we faced a president eager to test the formal (whether written, legal, or informal, the willingness of not only officials, but the public, to accept or reject a president’s actions) rules governing presidential powers in an emergency, that president faced enough people inside and outside government committed to limiting a president’s actions, that in the end, the exercises proved only limited successes.
President Arroyo had declared a state of national emergency in 2006, and the Supreme Court later ruled some of the acts committed by virtue of that proclamation were illegal. It was widely reported at the time that President Arroyo had really wanted to proclaim martial law, but one of the biggest obstacles proved to be then-ambassador Albert del Rosario in Washington, who refused to endorse it (Arroyo dropped the idea of martial law, and promptly fired del Rosario). In 2009, her imposition of martial law on Maguindanao lasted eight days. During two days of Congressional hearings on martial law (December 9 and 10, 2009) her supporters had taken a beating; a final vote was scheduled for the following Monday, December 14. On December 12, President Arroyo cleverly pulled the rug from under the feet of both Congress and the Supreme Court by announcing the was lifting the proclamation of martial law, making any speeches, votes, or cases academic at best.
But first things first. The President is obligated to submit a report to Congress within 48 hours of the proclamation of martial law (see for example, the one President Arroyo submitted to Congress in 2009). Congress in turn must automatically convene to deliberate on the report, and decide whether it will uphold or set aside, the proclamation of martial law. If it upholds it, it remains in effect for 60 days, unless Congress decides to extend it. The Supreme Court, for its part, can look into the “factual basis” for martial law, upon receipt of a case filed by any citizen.
What is martial law? The online Encyclopedia Britannica defines martial law in this manner: “temporary rule by military authorities of a designated area in time of emergency when the civil authorities are deemed unable to function. The legal effects of a declaration of martial law differ in various jurisdictions, but they generally involve a suspension of normal civil rights and the extension to the civilian population of summary military justice or of military law.”
But our Constitution, written when memories of Marcos’ Martial Law and its abuses were still fresh, has imposed many limits on martial law. Neither Congress nor the courts can be impeded in their functions; the Writ of Habeas Corpus is only suspended for individuals, not all of the citizenry, who are charged in court within three days of their capture for rebellion or participating in, aiding, or abetting, an invasion. About all martial law permits, under these limits, is the use of the military where the police would have been otherwise required; and to facilitate arrests which still have to undergo scrutiny in the courts.
Sounds reassuring. But all this can’t cover up the fact that all the best-intentioned rules, elaborate as they may be, depends on the people manning each institution to do their part as expected. The rules assume that a president will behave responsibly, or if not, that Congress and the courts will. It assumes civilian and military people will abide by the limits imposed by the Constitution.
There are three ways in which all the rules could fail. First, Congress: the Constitution requires that the Senate and the House vote as one body, and not two separate chambers. This essentially makes the Senate useless as their numbers won’t matter if the House decides to support the President. Second, the courts: the rules assume our present Supreme Court will never repeat the cowardice of their predecessors in 1972-73. Never say never. Third, it assumes the bureaucracy and the military won’t allow martial law to be used for purposes for which it isn’t intended –a dictatorship, for example. But it can happen, for reasons that go beyond what the Constitution allows.
And here is the heart of the matter. Martial Law is many things, but it is not a cure-all to all of society’s ills. When Marcos proclaimed martial law in 1972, he went down the list of reasons permitted by the Constitution, but added one not in the Constitution: “to reform society.” This was important because being outside the Constitution, it could not be addressed by the charter; and being so broad and ambitious—to change society itself—it could mean anything, and justify everything. Marcos’ “New Society” would last from 1972 to 1981, when it was rebranded as the “New Republic” which lasted another five years until he was ousted.
In a similar vein, martial law as cure-all has been suggested by Senate President Aquilino Pimentel III on Wednesday when he said, maybe martial law can finally solve Mindanao’s ills, including crime. The President himself has famously said martial law would cure all of Mindanao’s problems. But martial law never was, and never is, meant to be a miracle drug for society’s cancers. But suppose, as Marcos did, that if you dangle a juicy enough reason, then public opinion—and the military and bureaucracy are part of the public, too, in that they pay attention to public opinion—will go along with your going beyond what the rules allow?
Which is why, as a debate on martial law now takes place, it would do well to step back and reflect on public opinion. How do people feel about martial law?
Last January, Pulse Asia had released survey results with the following snapshot of public opinion as of December, 2016 (and had also asked the same question in September of that year). Back then, the President had most recently proposed amending the Constitution to give more teeth to a martial law declaration.
I asked Dr. Ronnie Holmes of Pulse Asia if there had been a more recent snapshot of public opinion, and he replied the most recent dates to two months ago, in March. With his permission, here’s the snapshot:
As he observed, “In the March 2017 survey, 65 percent disagreed with Martial Law as a solution. 71 percent in NCR, 76 in the rest of Luzon, and 58 in Mindanao. Visayas registered lowest disagreement at 45 percent with 36 percent agreeing.”
Aside from looking at opinion on the basis of geography, one can also look at it from the point of view of age, sex, educational and employment status:
What does public opion tell us? Martial Law is a tougher sell now, than it has been in recent years. But not an impossible one. The numbers uneasy with, or actually opposed to, martial law might be large, but the numbers for it may be small but they aren’t so small as to be insignificant. And while Luzon is overwhelmingly opposed, the case is much less so in Mindanao and even less so in the Visayas, and among the poor and less educated, and older Filipinos.
The first battle will be in Congress. Here, the national voice of senators will be drowned out by the local interests of representatives. The second battle may be in the Supreme Court, the most traditional of our institutions and thus, the one that hopefully has the longest memory about martial law and dictatorship. But all of them: senators, congressmen, justices, generals, even the President—will be looking to the people, to see if this great gamble can be pulled off, or whether the Palace will have to settle for proclaiming victory while quietly sounding the retreat, as happened in 2009.
The President has been candid about his views. He has now turned his views into reality. This is now about Congress, the courts, and us.
I am thankful to Dr. Ronnie Holmes for permission to publish the results of their March survey; for historical comparison, see below my compilation of previous Pulse Asia and Social Weather Stations surveys on martial law, which I’d posted in my blog back in November, 2015.