2019 PRE-BAR Q&A ON MARTIAL LAW

By: Atty. Sonny G. Matula

(Law Lecturer at MLQU-School of Law, Univ of Manila College of Law and
University of Perpetual Help College of Law)

Introduction
Martial law is already a given in Mindanao. Whether we like it or not, on
December 12 last year, in a joint session, Congress had approved the initiative of
President Rodrigo Duterte to extend martial law for another year or until
December 2019.
There might be some questions still pending but we cannot escape to face the
effectivity of the Martial Law extension in the whole of Mindanao.
The Senate and the House of Representatives with a vote of 235-28-1, also
extended the suspension of the privilege of the writ of habeas corpus in the whole
Mindanao until the end of 2019.
The Senate voted 12-5-1 and the House voted 223-23-0 on the President’s request
to extend Martial Law and to continue the suspension of the privilege of the writ
of habeas corpus.
Martial Law is not only an "operative fact" in the whole of Mindanao but the
Supreme Court also had earlier found sufficient factual basis for the issuance of
Proclamation No 216 dated May 23, 2017 and declared it constitutional (Lagman
vs Medialdia, Dec 5, 2017) due to the rebellion of the Maute terrorist group, Abu
Sayyaf Group and others in Marawi and other parts of Mindanao).
Knowing the powers of the president of the Philippines will make us understand
more of our rights and effectively protect and defend our life and liberty.
The declaration of ML or suspension of the privilege of the writ of habeas corpus
does not suspend our constitutional rights (par 6, Sec 18, Article VII of the
Constitution; see also Lacson vs Perez, May 10, 2001).
1. What are the powers of the President under the Constitution
Article VII, Section 18 speaks about the president being the COMMANDER-IN-
CHIEF. The civilian president hold supreme military authority over the Armed
Forces of the Philippines (see Article II, Section 3). The president as the over-all
head of the military forces and is ceremonial, legal and administrative control
and supervision over all the branches and units of the AFP including all its
officers,
a) What is the coverage of this military power?
1) Control over the military - The President is the Commander-in-Chief of the
Armed Forces of the Philippines. He has control and supervision over the
Philippine Army, the Philippine Navy and the Philippines Airforce and units
under them.
Though not necessary an expert in military, the president may direct military
operations and determined military strategy.
As having the control over the military, he has the Calling out power. Whenever
necessary, the President may call out the AFP to PREVENT or SUPPRESS:
a) Lawless violence
b) Invasion;
c) Rebellion
Being the Commander-in-Chief, the calling out power is within the executive
domain and not subject to judicial review unlike the peculiar emergency powers
like the declaration of martial anda the suspension of the privilege of the writ of
habeas corpus.

2) PECULIAR EMENGENCY POWERS: As Commander-in-Chief, in pecular

circumstancs, the president also may exercise emergency powers:
1) Suspend the privilege of the writ of habeas corpus; And
2) Proclaim a state of martial law.
2. What are the legal grounds which can be invoked by the president in the
suspension of the privilege of the writ of habeas corpus and in declaring martial
law?
As Commander-in-Chief, during emergency like rebellion or invasion when the
public safety requires, the president may invoke the first paragraph of Section 18,
Article VII of the Constitution.
(Isip Commander-in-Chief, sa panahon sa rebelyon o pagsulong kung ang
seguridad sa publiko nagkinahanghan, pwede sa presidente gamiton ang unang
parapo sa Section 18, Article VII.
But under paragraph 3 of the same Section 18, Artikulo VII, the Constitution
speaks of the limitations:
“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.”
In the case of Lagman vs Medialdea (Feb 6, 2018), the Supreme again said that
the legal grounds under Sec 18, Article VII of the fundamendal law are;
1) Invasion or Rebellion
a. Actual; and, for either or both
b. Public safety requires it.
Note: The invasion or rebellion must be ACTUAL and not merely imminent or
imaginary.
3. What is the limitations of the ML or suspension power?
1) Suspension or proclamation is effective for only 60 days.
2) Within 48 hours from the declaration or suspension, the President must
submit a report, personally or in writing, to Congress.
4. What is the duty of Congress if there is suspension or declaration?
The Congress, if not in session, shall convene within 24 hours following such
proclamation or suspension without a need of a call.
Its duty is not limited only to review in order to revoke or extend ML or the
suspension of the writ but also Congress may issue guidelines for the executive
department in the form of joint resolution to guide or limit martial law.
The legislative branch by majority vote and voting jointly, may revoke the same,
and the President cannot set aside the revocation.
In the same manner, at the President’s initiative, Congress can extend the same
for a period determined by Congress if:
1) . Invasion or rebellion persist
And
2) Public safety requires it.
We have to NOTE that Congress on its own CANNOT extend the period. The
recent case of Lagman, the extension of ML for more than one (1) year was
initiated by the president. It was sustained as constitutional by the SC in the
Lagman cases.
5. How about the power of the Supreme Court to review?
The SC may review:
a) Through appropriate proceeding which can be filed by any citizen.
b) The SC can review the FACTUAL BASIS of the proclamation or suspension.
c) The SC to decide within 30 days from filing.
6. What powers could the President exercise during martial law that he could not
exercise if there is no martial law?
A state of martial law is peculiar situation. There are opinions which support that
President, at such a time, exercises police power, which is normally a function of
the Legislature. The police power is the power of the state to promote public
welfare by restraining and regulating the use of liberty and property without
necessarily giving just compensation.
In particular, the President may exercise police power, with the military’s support
or assistance, to ensure public safety ( Bernas, Joaquin, G. Constitutional
Structure and Powers of Government, Notes and Cases Part I, 20 10 ed., p. 473).
In place of government agencies which for the time being are unable to cope with
the prevailing condition in a locality, he may engage the armed forces to
performed their functions.
In David v. President Macapagal-Arroyo (May 3, 2006), the Supreme Court stated
that under a valid declaration of martial law, in pecular circumstances, 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 x x x".
ML, however, does not give the President 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.
Moreover, the guarantees under the Bill of Rights remain in place during its
pendency.
7. What is NOT covered by ML?
a) Martial Law does:
1) NOT Suspend the operation of the Constitution. (paragraph 4, Section 18, Art
VII)
2) NOT Supplant the functioning of the civil courts or legislative assemblies (can't
abolish MTCs, RTCs, CA or SC; neither padlock congress)
3) NOT Authorize conferment of jurisdiction on military courts over civilians
where civil courts are able to function.
b) Martial also does NOT also automatically suspend the privilege of the writ of
habeas corpus (last part of paragraph 4, Sec 18 of Art VII)
8. What is the writ of habeas corpus?
The writ of habeas corpus was devised and exists as a speedy and effectual remedy
to relive persons from unlawful restraint, and as the best and only sufficient
defense of personal freedom. (Villavicencio vs, Lukban, 39 Phil., 778,788.)
The term habeas corpus is a Medieval Latin meaning literally "that you have the
body". This is a recourse which any person can invoke to report an unlawful
detention or imprisonment and request that the court order the custodian of the
person deprived of liberty to bring to court in order to determine whether his
detention has legal basis.
The Suspension of the privilege of the writ of the writ of habeas corpus is:
(Ang suspension sa pribilehiyo sa writ sa habeas corpus)
a) Applicable ONLY to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion (paragraph 5 of Sec 18, Art VII.
b) Anyone arrested or detained during suspension must be charged within 3 days.
Otherwise he should be released. (paragraph 6 of Sec 18, Art VII)
9. Is warrantless arrest allowed under Martial Law or when privilege of writ of
habeas corpus is suspended?
No. A declaration of ML or suspension of the privilege of the writ does not
suspend the bill of rights under the fundamental law (paragraph 4 of Sec 18, Art
VII).
However, even without the declaration of ML or suspension of the privilege, in
exceptional circumtances warrantless arrest is allowed under the the rules of
court.
10. What circumstances allow legal warrantless arrest?
A peace officer or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another. (Sec 5, Rule 113 of the Rules of Court).
Good day to all! Thank you!
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ATTY. JOSE SONNY G. MATULA is a Law Lecturer in Constitutional Law and
Labor Law at the University of Perpetual Help College of Law, University of
Manila College of Law and Manuel L. Quezon University School of Law. He is
also the president of the Federation of Free Workers and Chairperson of the
Nagkaisa Labor Coalition.