Is there a basis to declare martial law in Mindanao?

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A declaration of martial law allows the president to exercise extraordinary powers in the case of an invasion and rebellion, when the public safety requires it. What does it mean for the people affected by its declaration in Mindanao? Photo by JAKE VERZOSA

Manila (CNN Philippines Life) — The last time a Philippine president declared martial law was at the heels of the Maguindanao massacre. At that time, the massive carnage brought by the attack on 57 people — supporters and family of Esmael Mangudadatu, including journalists — prompted then-president Gloria Macapagal-Arrroyo to issue Presidential Proclamation 1946, declaring a “state of emergency” over Maguindanao, Sultan Kudarat, and Cotabato City on Nov, 24, 2009, a day after the massacre.

Thereafter, Arroyo issued Presidential Proclamation 1959, which declared martial law over Maguindanao, and suspended the writ of the privilege of habeas corpus in the province on Dec. 4, 2009.

(The privilege of the writ of habeas corpus enables the release from custody of persons unlawfully detained. The writ itself protects individuals from illegal arrests and detention, through a court order compelling officers to “produce the body” and explain the basis for a person’s continued detention.)

On May 23, 2017, President Rodrigo Duterte declared martial law over the whole of Mindanao, based on reports of clashes in Marawi City. He has previously expressed that he will not hesitate to declare martial law “to preserve the nation.”

Such power to declare martial law is found in in Sec. 18, Art. VII of the 1987 Constitution, vested in the president under his commander-in-chief powers. He has three powers as commander-in-chief: in order to prevent lawless violence, (a) to call out the Armed Forces (calling out power) when it becomes “necessary”; and in case of invasion or rebellion, and when the public safety requires it, to (b) suspend the privilege of the writ of habeas corpus, or (c) declare martial law. Significantly, the mere declaration of martial law does not automatically suspend the privilege of the writ of habeas corpus.

Check and balance

According to Constitutionalist Fr. Joaquin Bernas, SJ, these powers are “graduated powers,” each varying in degree of severity in order to address the situation on ground, with the calling out powers being the “mildest” and most easily available, and martial law being that of last resort. However, it is up to the president’s discretion which to utilize when the circumstances call for it.

The declaration of martial law, for its part, sets to motion several check-and-balance mechanisms found in the 1987 Constitution. Coming from the experience of former president Ferdinand Marcos’ declaration of martial law — which led to human rights abuses occurring under his regime, some of which are still uncompensated for — the framers of the Constitution ensured that other branches of the government (and even a citizen, by filing a suit) will have the immediate power to overturn a baseless declaration of martial law or render it unconstitutional.

These check-and-balance mechanisms applicable to a declaration of martial law, found in Sec. 18, Art. VII of the 1987 Constitution, are the following:

  • The basis of the declaration of martial law must be a case of (a) “invasion or rebellion,” and (b) when the public safety requires it;

  • The period of implementation must not exceed 60 days;

  • Within 48 hours from proclamation of martial law, the president must submit a report of his findings to Congress;

  • Congress (the Senate and House combined), voting jointly, on a majority vote, may revoke such proclamation; and

  • The Supreme Court, upon a suit of any citizen questioning the sufficiency of the basis of martial law, must promulgate its decision on such suit 30 days after filing.


Arroyo, in her case, reported the declaration of martial law before Congress. The case of Fortun v. Macapagal-Arroyo provides that Arroyo justified her actions based on her finding that “lawless men have taken up arms against the government.” In her report, she described the “the scope of the uprising, the nature, quantity, and quality of the rebels weaponry, the movement of their heavily armed units in strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay Municipal Hall, and 14 other municipal halls, and the use of armored vehicles, tanks, and patrol cars with unauthorized PNP/Police markings.”

The declaration’s constitutionality was never determined, however — and Congress was never able to act on her report — because Arroyo lifted the declaration of martial law and restored the privilege of the writ through Presidential Proclamation 1963 around a week after, on Dec. 12, 2009. The Supreme Court in Fortun dismissed the suit filed questioning the declaration of martial law, saying the issue had become moot and academic.

Thus the president will need to outline the factual bases constituting a rebellion. If the bases don’t hold water, Congress may revoke such proclamation.

Of note, however, is Justice Antonio Carpio’s dissent, which stated that the Court can in fact decide on the matter, and provided that “Proclamation No. 1959 [Arroyo’s declaration of martial law] was anchored on a non-existent rebellion.” He elaborates: “[T]he discovery of the Ampatuans’ private army and massive weaponry does not establish an armed public uprising aimed at overthrowing the government. Neither do the closure of government offices and the reluctance of the local government officials and employees to report for work indicate a rebellion.”

Rebellion or invasion?

Eight years later, the Constitutional parameters of the president’s commander-in-chief powers are again put to the test. According to Defense Secretary Delfin Lorenzana, the Maute group — tagged in the clashes — occupied several establishments in Marawi City, including the Amai Pakpak Hospital, the city hall, and the city jail, as well as part of the Mindanao State University Compound. Several facilities — St. Mary's Church, the city jail, the Ninoy Aquino School, and the Dansalan College — were also burned down.

According to Lorenzana, the declaration covered all of Mindanao because of security problems also existing in nearby areas, like Sulu, the Zamboanga peninsula, Central Mindanao, and the Davao region.

Considering the circumstances, the following questions concerning Duterte’s proclamation must be answered, following the letter and intent of the Constitution: did the clash in Marawi City constitute a rebellion or invasion? Spokesperson Ernesto Abella has indicated as such, in a report, that the recent proclamation “was possible on the grounds of existence of rebellion because of what is happening in Mindanao based on Article 7, Section 18 of the Constitution.”

Thus the president will need to outline the factual bases constituting a rebellion. If the bases don’t hold water, Congress may revoke such proclamation.

The framers of the 1987 Constitution ensured that other branches of the government (and even a citizen, by filing a suit) will have the immediate power to overturn a baseless declaration of martial law or render it unconstitutional.

If a suit is filed, the question of what constitutes a rebellion under the Constitution (as distinguished from the definition under the Revised Penal Code) might also come up, as already explored by Justice Carpio in his dissent in Fortun. The Constitution itself does not define what a rebellion means under the context of martial law, leaving the definition up for the courts to consider if it will apply the definition of "rebellion" under the Revised Penal Code.

Another relevant question is if the declaration of martial law automatically justifies the suspension of the privilege of the writ of habeas corpus. It does not, as clearly provided in the Constitution.

In this light, Defense Secretary Lorenzana’s recent statement regarding the declaration of martial law needs to be reevaluated. He said: “Lahat ng gagawin na dapat gawin sa martial law (Everything that needs to be done during the martial law), we will implement. Control of movement, searches and arrest of detained people for suspension of writ of habeas corpus.”

Even considering that the privilege of the writ has been suspended in Mindanao, Lorenzana’s statement — made at a point when only the declaration of martial law was made clear — somehow misleads one into thinking that the suspension of the privilege of the writ comes hand-in-hand with the declaration of martial law, even if it does not. The distinction is important because suspending the privilege of the writ already greatly affects an illegally detained person’s right to liberty.

To declare martial law already presupposes a grave threat to national security — a case of invasion and rebellion — thus warranting careful exercise of its extraordinary power. As details of the proclamation and events unfold, care must be taken not to aggravate the situation on the ground and ensure the safety of civilians involved in the clash. It is also important not to misinform and to carefully study the scope of the president’s power in making and implementing the declaration.

The declaration of martial law does not suspend the application of basic human rights nor does it supplant the Constitution or suspend the courts. Like Arroyo’s declaration of martial law over Maguindanao, Duterte’s proclamation of martial law all over Mindanao must also fulfil the rigid Constitutional parameters as summarized above. In the end, these parameters still manifest, as Fr. Bernas states, the Constitution’s “great reluctance to allow the activation of martial law powers and of the power to suspend the privilege of the writ,” thus calling for renewed vigor in knowing what our rights are, and in remaining vigilant in their protection.

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The story has been updated at 7:04 p.m., May 24, 2017, to reflect President Duterte's suspension of the privilege of the writ of habeas corpus in Mindanao.