MORE often than not in history, the biggest blunders occur on account of people who apply lessons from the past to the present, while failing to consider whether those lessons are still relevant in the light of new or current conditions. One example would be the use of the aggressive Napoleonic-era bayonet charge in World War I given the inventions of the machine gun and heavy artillery. For us living in the 21st century, it may seem silly. But those generals, like Joffre and von Moltke, were just learning the power of modern weaponry for the first time. It is with this insight that I now turn to reflecting on martial law, especially given the recent conclusion of the National Day of Protest last September 21, the anniversary of the declaration of martial law in the Philippines. We can call Pres. Marcos whatever we want, but one thing is undeniable: he knew the Constitution, he knew its importance, he knew it to the letter, and, therefore, he knew how to abuse it. Nearing the end of his second and final term and still hungry for power, he knew the answer to what every law professor loves to ask his students: “What’s the remedy?” The answer of course was martial law. Given the terse language of the 1935 Constitution – this would create the chaos he needed and in the words of the recently deceased Littlefinger Baelish, “chaos is a ladder.”
Such were the conditions then. The 1935 Constitution had only one paragraph regarding the President’s martial law powers:
“Article VII, Sec. 11(2): The President shall be 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, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.”
What happens during or after that fateful declaration is only met by silence. It was only in the 1987 Constitution that the President’s Commander-in-Chief powers had its own provision on Section 18, Article VII. The framers intimately knew the lessons and abuses of the “martial regime” and ensured that it would never happen again. They deleted “or imminent danger thereof” and added the following safeguards, among others:
- Congress should convene in joint sessions within 48 hours and decide whether to extend or revoke (but interestingly not to approve) the declaration of martial law;
- The President should give a report with 24 hours; and
- Any citizen may challenge the sufficiency of the factual basis before the Supreme Court
Notably, the framers even answered the question of what happens to the Constitution and my rights during martial law. The answers are in paragraph 4:
- 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.”
Talk about safeguards. It would seem to be overkill (I mean that in a good way) on the part of the framers – and for good reason. Never again will those martial law abuses resurface, judging merely by the text of the 1987 Constitution. This is where protests about Duterte declaring martial law again, along with the rising fear of martial law abuses, puzzle me. We apparently assume, along with the framers, that the President still needs martial law to get what he wants. With the 1987 Constitution, the game has changed. To a power hungry President looking for “the proper remedy,” we have to understand that the answer today probably is different from that in 1972. Back then, few may have known the extent and power that would flow from a declaration of martial law. Few probably knew just what a highly intelligent, driven, and egotistical man, could do with martial law.
In a way, it is true that we are stuck in the past. The 1987 Constitution is deeply colored and conditioned to prevent the abuses in the past regime. We view the present from the lenses of the past. Likewise, those WWI generals honestly thought heroic bayonet charges still would work, until losing 30,000 men. While I hate to admit it, maybe those who claim that we should move on are correct but for totally different reasons. Maybe we should move on from the idea that the President needs martial law to commit abuses on the people or plunder the treasury (we have had many examples since 1987 to prove this point of plunder). From the thousands of deaths now under the yet unbroken wings of the 1987 Constitution, aren’t the abuses already here? It would be too uncritical on our part to assume that tyranny cannot don a different form to perpetuate itself.
Laws are only as good as the people under them. I remember a Latin saying that the law looks forward, not backward. True, perhaps, in its application, but definitely not in its creation. Laws are always, in a way, too late. They come after the fact. It took a hazing death to finally enact an Anti-Hazing Law. The law deals with facts, and facts are always in the past.
I think about how Duterte so brazenly talks about martial law and swings it here and there. He knows it is a trigger – like the color red to bulls or yellow to some of his supporters. There is some comfort in knowing I am safe because there is no martial, but the truly frightening thought is that what if, today, the President doesn’t need martial law to abuse the people. Therefore, waving around martial law seems to be a good smokescreen. It achieves two things: (1) conditions and reminds the people of the abuses of the past, reinforcing the old 1935 Constitution assumption that the President still needs it to hold on power just like Marcos, and (2) gives us a false sense of security that as long as there is no martial law, things are just ok.
It is hard, perhaps, to admit that maybe this President is not entirely stupid. Marcos created chaos because of the silence of the Constitution in martial law time. Duterte creates chaos through the Constitution and the noise it (and he) generates, as we all saw on September 21.