FRIDAY, April 19, 2024
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After martial law, ten hurdles to a Duterte dictatorship

After martial law, ten hurdles to a Duterte dictatorship

Alarm bells are ringing across the Philippines after President Rodrigo Duterte declared martial law on the southern island of Mindanao, to deal with a deadly assault by Islamist militants that began last week.

Many Filipinos fear Duterte is following in the footsteps of Ferdinand Marcos, who declared martial law in 1972 as a pretext to seizing control of the country.      
Yet the security law has changed since the era of Philippine dictatorship. 
We added many protections after Marcos:
1. Rebellion: Our 1987 Constitution allows martial law only “In case of invasion or rebellion, when the public safety requires it.” The Maute Group raised Islamic State flags in Marawi City. The constitutional law gurus – former dean Pacifico Agabin and retired justice Vicente V Mendoza – accept that rebels tried to take our territory to form a new state.
2. Actual rebellion: Constitutional safeguards require actual rebellion, not just a threat. Thus, former president Fidel V Ramos argues it should be limited to parts of Mindanao. Senator Franklin Drilon opposes expanding it to the Visayas or Luzon.
3. Sixty days only: Martial law now lasts 60 days only, though that period can be extended by Congress.
4. Congress open: The Constitution bars “supplant(ing) the functioning of the civil courts or legislative assemblies”. No padlocking the Senate.
5. Courts open: Chief Justice Maria Lourdes Sereno ordered courts to stay open. Military tribunals may not try civilians where courts function, unlike in 1973, in the case of senator Benigno Aquino Jr.
6. No seizures: Based on the 2006 Randy David case, only Congress may order “taking over of privately owned public utility”.
7. Rights stay: The Constitution is clear: “A state of martial law does not suspend the operation of the Constitution.” Free speech and all rights stay. But you cannot make bomb jokes at airports even without martial law, so do not post troop movements on Facebook.
8. No warrantless arrests, searches: Senior Associate Justice Antonio Carpio stressed that martial law in Maguindanao in 2009 (2012 Fortun case) did not allow warrantless arrests, citing the 1988 Aberca vs Ver case.
But when the “privilege of the writ of habeas corpus” is suspended, one cannot question detention for a rebellion case. The government must file charges in court in three days or release you. You may post bail.
In a Department of Defence memo dated May 24, implicitly citing the Constitution, martial law likewise does not allow warrantless searches. But the Supreme Court allows exceptions to getting warrants even without martial law, such as when a crime is in progress.
9. No replacing local government: The president controls the entire national government but only has “supervision” over local governments. Arguably, he cannot replace local officials where they still function and thereby undermining the democratic right to elect leaders.
The Constitution allows courts to nullify “grave abuse of discretion”, which could mean replacing the governor of Batanes after a Marawi siege.
10. Civilian supremacy: The Constitution commands: “Civilian authority is, at all times, supreme over the military. The Armed Forces… is the protector of the people.”
So does martial law today grant any power beyond governing a hostile area? The answer is no – just as the Constitution’s framers intended.
Shake off the great psychological impact of martial law. All that Filipinos supported or protested last week is not martial law. The extraordinary power was declared but not used (thus far). Not even the mayor of Marawi City has been replaced. No one is detained for rebellion.
So are Filipinos supporting or protesting something within the president’s normal powers and not subject to the 60-day limit? Or something unconstitutional even under martial law, meaning we are fighting the wrong fight?

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