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Ignoring Constitutional Checks for Emergency Rule

Dante Gatmaytan, University of the Philippines, College of Law

On May 23, 2017, Philippine President Rodrigo Duterte declared a state of martial law in the Mindanao group of islands.[1] The decision came after gunfire broke between the Philippine military and a radical Muslim rebel group called the Maute group. The conflict erupted after a failed army attempt to capture one of the leaders high on the wanted list.[2]

The Philippines has a horrible history with martial rule. Ferdinand Marcos used it to sustain his dictatorship that was marked with unprecedented human rights violations. The country’s 30-year old Constitution, crafted after Marcos’ ouster, had built in safeguards against sliding back to a one-man rule. These safeguards are being ignored by constitutional actors.

Article VII of the Constitution provides:

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.

The Supreme Court explained in Fortun v. Macapagal-Arroyo,[3] that although the President has the power to proclaim martial law or suspend the privilege of the writ of habeas corpus, he shares such power with the Congress:

1. The President’s proclamation or suspension is temporary, good for only 60 days;
2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to Congress;
3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or suspension for the purpose of reviewing its validity; and
4. The Congress, voting jointly, may revoke or affirm the President’s proclamation or suspension, allow their limited effectivity to lapse, or extend the same if Congress deems warranted.

The Supreme Court explained that the President and the Congress act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power sequentially and jointly since, after the President has initiated the proclamation or the suspension, “only the Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the President does not have.”

Leaders of Congress have said that there is no need to convene in joint session because the Constitution mandates such joint session only to revoke the proclamation of martial law.[4] This position completely disregards the Fortun ruling. Convening in joint session is automatic and is for the purpose of reviewing the validity of the proclamation of martial law. Congress should evaluate the validity of the proclamation based on its own assessment of the situation, and not the President’s claims.

The entire provision should be construed in a way that promotes this function; otherwise, it will render the provision useless. Convening in joint session is necessary because it is a check on the President’s actions. Convening in joint session is premised on congressional cynicism Members of Congress who doubt the validity of the declaration of martial law should be given the opportunity to question the Executive, who, for his part, is burdened with the responsibility of defending his actions.

The declaration of martial law in Mindanao is riddled with inconsistencies and Congress has a constitutional duty to sort these out. Among other things, the Secretary of Defense opined that martial law was not necessary.[5] Either a rebellion or invasion is required for the declaration of martial law, but there are reports that the conflict in Marawi was triggered by a botched military operation. It is unclear how Congress can support the declaration of martial law when these basic issues have not been settled. The proliferation of fake news and social media trolls add to the confusion that Congress should set straight.

The other safeguard against martial law is judicial review. In Fortun, the Court also explained that although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, “it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.”

The question now is whether a case questioning the factual basis for the declaration of martial law may be filed with the Supreme Court. Since the Court did not define “default” on the part of Congress, two things can happen:

First, the Court might say that pronouncements from the leaders of Congress saying they refuse to convene in joint session can trigger judicial review, in which case they will assume jurisdiction over the case.

Second, it could also say that the Constitution does not indicate how long Congress can take decide the validity of the declaration of martial law. In this case, the Court may say that the case is premature, effectively distancing itself from the controversy.

Another way the Court could distance itself from the controversy is by directing Congress to convene in joint session. Fortun says that Congress should convene automatically, suggesting that it has no discretion on this matter. The Court could delay performing its own duty of reviewing the validity of the declaration of martial law by directing Congress to perform its own ministerial duty to check the President.

The Supreme Court might delay judicial review because the President has vowed to ignore any ruling on the validity of martial law[6] (another violation of constitutional duties). The fact that the two chambers of Congress have shirked from its duty to review the validity of the proclamation of martial law places an enormous burden on the Court which has no political clout but only a constitutional duty to back up its ruling.

Recent events in the Philippine shows that despite the clear intent of the framers of the 1987 Constitution, the intricate systems of checks designed to soften the potential impacts of emergency rule have so far proven ineffective. The constitutional strictures seem effective only if constitutional players recognize them.

Suggested Citation: Dante Gatmaytan, Ignoring Constitutional Checks for Emergency Rule, Int’l J. Const. L. Blog, June 9, 2017, at: http://www.iconnectblog.com/2017/06/ignoring-constitutional-checks-for-emergency-rule


[1] Proc. No. 216, May 23, 2017 available at http://www.officialgazette.gov.ph/downloads/2017/05may/20170523-PROC-216-RRD.pdf.

[2] Criselda Yabes, Duterte’s martial law edict suprises Philippine army, Asia Sentinel, June 1, 2017, at http://www.asiasentinel.com/politics/rodrigo-duterte-martial-law-surprises-philippine-army/. The army had come to capture Isnilon Hapilon, a leader of the Abu Sayyaf terror group on Basilan island, who had reportedly gone to Marawi to form an alliance with the Maute in the name of IS. Id.

[3] 684 Phil. 526-631 (2012).

[4] Delon Procalla and Paolo Romero, Alvarez: No need for joint session on martial law, Philstar Global, May 30, 2017, at http://www.philstar.com/headlines/2017/05/30/1704948/alvarez-no-need-joint-session-martial-law.

[5] Maila Ager, Minority senators: Defense chief said martial law not needed to contain Maute, INQUIRER.NET, May 30, 2017, at http://newsinfo.inquirer.net/900951/minority-senators-defense-chief-said-martial-law-not-needed-to-contain-maute.

[6] Chad de Guzman, Duterte: I will ignore Supreme Court, Congress on martial law, CNN Philippines, May 28, 2017, at http://cnnphilippines.com/news/2017/05/28/duterte-ignore-supreme-court-congress-martial-law.html.

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Published on June 9, 2017
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