Comment: Is Proc. 1017 Martial Law?

I listened as Press Sec. Ignacio Bunye read the text of the Proc. 1017, which placed the Phlippines under a State of Emergency. I am curious that one line in the text says that the President is ordering the Armed Forces of teh Philippines to maintain peace and order over the entire country. Does this mean that the civilian government is unable to maintain peace and order on its own?

This is curious, because Fr. Joaquin Bernas in his textbook on constitutional law points to a type of martial law "which has application when the military arm does not supercede civil authority but is called upon to aid in the execution of its civil functions." (See Joaquin Bernas, A Commentary of the Constitution of the Republic of the Philippines p. 215, 1988 edition). According to Fr. Bernas this is the martial law that is covered by the text of the Sec. 18 Article VII of the 1987 Constitution, which calls for congressional review of the declaration by the President. The wording of Proc. 1017 precisely contemplates that situation where the President is calling upon the military to maintain the peace and order in the entire country. Does this mean civilan authority is no longer functioning? If so, then Section 18 of Article VII of the 1987 Constitution should be operative.

Section 18 Article VII states as follows,

"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 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 of habeas corpus 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 of habeas corpus.

"The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

"During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released."

From the above, the President should within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, submit a report in person or in writing to the Congress.

Thereafter, 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.

Finally, 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.

Let's see how the legal luminaries react.

A copy of Proc. 1017 may be found here. Link courtesy of Blackboard