Declaration of Martial Law under the Philippine Constitution: Exercise and Review

The constitutional provisions on Martial Law — as contained in Section 18, Article VII of the Constitution — is intended to provide additional safeguard against possible abuse by the President in the exercise of his power to declare martial law or suspend the privilege of the writ of habeas corpus. Section 18 contains six paragraphs, and reads in full:

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.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.

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 or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

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.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

I. FIRST PARAGRAPH: GRADUATED POWERS

The President is granted a “sequence of graduated powers” under Section 1 of Rule VII. From the most to the least benign, these are: 

  • 3. the calling out power
  • 2. the power to suspend the privilege of the writ of habeas corpus 
  • 1. the power to declare martial law

The graduation refers only to hierarchy based on scope and effect. It does not in any manner refer to a sequence, arrangement, or order which the Commander-in-Chief must follow. This so-called “graduation of powers” does not dictate or restrict the manner by which the President decides which power to choose.

Calling out the armed forces

Among the three extraordinary powers, the calling out power is the most benign and involves ordinary police action. The President may resort to this extraordinary power whenever it becomes necessary to prevent or suppress lawless violence, invasion, or rebellion.

The power to call is fully discretionary to the President; the only limitations being that he acts within permissible constitutional boundaries or in a manner not constituting grave abuse of discretion. In fact, the actual use to which the President puts the armed forces is not subject to judicial review.”

Suspending the writ; Declaring Martial Law

The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law may be exercised only when there is actual invasion or rebellion, and public safety requires it. The 1987 Constitution imposed the following limits in the exercise of these powers:

  • (1) a time limit of sixty days; 
  • (2) review and possible revocation by Congress; and
  • (3) review and possible nullification by the Supreme Court

The framers of the 1987 Constitution eliminated insurrection, and the phrase “imminent danger thereof’ as grounds for the suspension of the privilege of the writ of habeas corpus or declaration of martial law. They perceived the phrase “imminent danger” to be “fraught with possibilities of abuse;”  besides, the calling out power of the President “is sufficient for handling imminent danger.”

The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve curtailment and suppression of civil rights and individual freedom. Thus, the declaration of martial law serves as a warning to citizens that the Executive Department has called upon the military to assist in the maintenance of law and order, and while the emergency remains, the citizens must, under pain of arrest and punishment, not act in a manner that will render it more difficult to restore order and enforce the law. 

The guarantees under the Bill of Rights remain in place during its pendency. And in such instance where the privilege of the writ of habeas corpus is also suspended, such suspension applies only to those judicially charged with rebellion or offenses connected with invasion.

Martial Law

A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally a function of the Legislature. In particular, the President exercises police power, with the military’s assistance, to ensure public safety and in place of government agencies which for the time being are unable to cope with the condition in a locality, which remains under the control of the State.

Under a valid declaration of martial law, the President as Commander-in-Chief may order the: (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) [takeover] of news media and agencies and press censorship; and (d) issuance of Presidential Decrees. The President, however, does not have the unbridled discretion to infringe on the rights of civilians during martial law. This is because martial law does not suspend the operation of the Constitution, neither does it supplant the operation of civil courts or legislative assemblies. 

Time is paramount in situations necessitating the proclamation of martial law or suspension of the privilege of the writ of habeas corpus. It was precisely this time element that prompted the Constitutional Commission to eliminate the requirement of concurrence of the Congress in the initial imposition by the President of martial law or suspension of the privilege of the writ of habeas corpus.

There is a necessity and urgency for the President to act quickly to protect the country. The Supreme Court, as Congress does, must thus accord the President the same leeway by not wading into the realm that is reserved exclusively by the Constitution to the Executive Department.

II. SECOND PARAGRAPH: CONGRESSIONAL VS. JUDICIAL REVIEW

The other two branches of government — Congress and Judiciary — have the authority to review a declaration of martial law by the Executive. These review powers are independent from each other. 

The power of review by Congress is provided in the second paragraph of Section 18, which reads: “The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.”

Congress‘ review mechanism is automatic in the sense that it may be activated by Congress itself at any time after the proclamation or suspension was made. contrast, the Supreme Court’s review power is passive; it is only initiated by the filing of a petition by a citizen. 

Congress may revoke the proclamation or suspension, which revocation shall not be set aside by the President. On the other hand, the Supreme Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the ground of lack of sufficient factual basis. 

Congress could probe deeper and further; it can delve into the accuracy of the facts presented before it. The Supreme Court does not look into the absolute correctness of the factual basis.

Congress may take into consideration not only data available prior to, but likewise events supervening the declaration. The Supreme Court considers only the information and data available to the President prior to or at the time of the declaration; it is not allowed td “undertake an independent investigation beyond the pleadings.”

III. THIRD PARAGRAPH: JUDICIAL REVIEW

The third paragraph of Section 18 reads: “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 or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.”

There is no similar provision in the previous constitutions. In 1951, the Supreme Court ruled that the President’s decision to declare a state of rebellion and suspend the writ of habeas corpus is final and conclusive upon the courts.

The Supreme Court, in 1971, declared that it has the power to review the existence of factual basis of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus. In other words, it is not covered by the “political question” doctrine.

In 1983, years after the declaration of Martial Law in 1972, the Supreme Court reverted to the 1951 ruling. The constitutional power of the President to suspend the privilege of the writ of habeas corpus, according to the Supreme Court, is a political questions and NOT subject to judicial inquiry.

Thus, by inserting Section 18 in Article VII which allows judicial review of the declaration of martial law and suspension of the privilege of the writ of habeas corpus, the framers of the 1987 Constitution in effect constitutionalized and reverted to the Lansang doctrine.

The framers of the 1987 Constitution inserted the third paragraph of Section 18, Article VII to reinstate the 1971 ruling and prevent any reinterpretation. As the Constitution stands today, the factual basis of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus is not a political question but within the ambit of judicial review.

Section 18 also relaxed the rule on standing by allowing any citizen to question before this Court the sufficiency of the factual basis of such proclamation or suspension. Section 18, Article VII conferred upon any citizen a demandable right to challenge the sufficiency of the factual basis of said proclamation or suspension. 

The “sufficiency of factual basis test”

The Supreme Court’s power to review is limited to the determination of whether the President in declaring martial law and suspending the privilege of the writ of habeas corpus had sufficient factual basis. The review would be limited to an examination on whether the President acted within the bounds set by the Constitution, i.e., whether the facts in his possession prior to and at the time of the declaration or suspension are sufficient for him to declare martial law or suspend the privilege of the writ of habeas corpus.

The parameters for determining the sufficiency of the factual basis for the declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus, based on Section 18 fo Article VII, as as follows:

  • (1) actual invasion or rebellion, 
  • (2) public safety requires the exercise of such power, and
  • 3) there is probable cause for the President to believe that there is actual rebellion or invasion.

All three elements must be present; otherwise, the President’s declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must be struck down.

[Source: Digest/summary of Lagman vs. Medialdea, G.R. No. 231658, 4 July 2017]

P&L Law

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