Dangerous and alarming contingency

By Jose C. Sison (The Philippine Star), November 18, 2016

It is about time for us to erase the delusion that some of our countrymen denominated as “elitist” are trying to put down or belittle the intellectual capacity of the mass of our common people mostly comprising Duterte’s supporters. It is quite divisive and discordant to imagine that people who appraise the merits of Duterte’s actions or inactions are against him and would not like him to succeed. It is just fomenting more strife and hatred among our countrymen.

Indeed right now the prevalent feeling is that we are really in a state of “war.” And it refers not only to the ongoing war against the suspected violators of the Dangerous Drugs Law but also the current “war” allegedly between the elitists and the ordinary Filipinos who supported and catapulted Duterte into power. Such atmosphere now prevailing is definitely detrimental to our country. As Filipinos, we must believe in all good faith that even those who criticize this administration are promoting the best interests of our country and our people; that we want our President and his administration to succeed even if some of us have a tendency to censure or belittle some of his moves and style of governance.

And so at the risk of being branded as an “elitist,” I am once more pointing out what I perceive as harmful developments and the dangerous situation of our country now. Aside from the bitter strife arising once more due to the decision of Duterte to allow the burial of Marcos at the Libingan Ng Mga Bayani, which was upheld by the Supreme Court, the greater danger we are now facing is in the widespread lawlessness and violence that Duterte himself has recently noticed.

In this connection, it cannot be denied that such lawlessness and violence can be mainly attributed to the on-going war against the suspected drug addicts who are mostly poor and marginalized aside from a few filthy rich drug traffickers and drug lords. Noteworthy here is that since the start of the Duterte administration, the number of deaths and casualties as a result of this “war” has considerably increased. Not a single day has passed since then without any report of killings of drug suspects numbering around 15 to 20. And most of these killings are perpetrated by the Philippine National Police under General “Bato” Dela Rosa, Duterte’s protégé when he was Mayor of Davao. The most blatant and indicative of a “rubout” is the killing of Albuera Leyte Mayor Rolando Espinosa who was gunned down inside his jail cell while allegedly resisting the service of a search warrant at 3 a.m.

It is quite disturbing that Duterte is now raising the possibility of suspending the writ of habeas corpus and even the contingency of declaring martial law as a result of the widespread lawlessness caused by the extrajudicial killings that started and increased when he assumed office. Somehow people cannot help but perceive that he himself has laid the groundwork for the eventual suspension of the privilege of the writ of habeas corpus and even declaration of martial law.

Under the Constitution (Section 18, Article VII), the President “may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law,” only in case of “invasion or rebellion, when public safety requires it.”

The writ of habeas corpus is the usual remedy for unlawful imprisonment. It is the writ of liberty that “ensures any person’s right to live and work where he is minded to, to move about freely, and to be rid of any unwarranted fears that he would just be picked up and detained.” It is all embracing and wide ranging remedy to assure there be no toleration of illegal restraint; that detention must be for a cause recognized by law (Aquino vs Ponce Enrile, L-35546, September 17, 1974).

The imposition of martial law on the other hand carries with it: (1) the suspension of the privilege of the writ of habeas corpus; (2) the grant to the President of legislative powers and the power to propose amendment to the Constitution; and the creation of military tribunals clothed with jurisdiction over civilians. “It is the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of government are unable to function or their functioning would itself threaten the public safety. It authorizes the military to act vigorously for the maintenance of public safety and of an orderly civil government (Duncan vs. Kahanamoku, 327 US 304) . In effect, it is an exception to the principle enshrined under Section 3 Article II of our Constitution declaring thet “Civilian Authority is at all times supreme over the military.”

And because of the sad experience we had when Marcos declared martial law on September 21, 1972 that carried with it the suspension of the privilege of the writ of habeas corpus, our 1987 Constitution (Section 18, Article VII) now provides the following safeguards:

1. The submission by the President to Congress in person or in writing a report about such proclamation and suspension of the writ within 48 hours. Congress on the other hand shall meet within 24 hours and voting jointly may revoke such proclamation or suspension by a vote of at least a majority. If there is really an invasion or rebellion and it persist, the Congress may in the same manner extend such proclamation or proclamation for a period it may fix upon the initiative of the President.”

2. The Supreme Court on the other hand may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation or suspension or the extension thereof and must promulgate its decision thereon within 30 days from its filing.

The other safeguards are: martial law does not suspend the operation of the Constitution nor supplant the functioning of civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where the civil courts are able to function.

The privilege of the writ of habeas corpus is not likewise automatically suspended and shall apply only to person judicially charged for rebellion or offenses inherent or directly connected with invasion. Any person thus arrested and detained during the suspension of the privilege shall be judicially charged within three days otherwise he shall be released.

Duterte should therefore carefully consider these limitations and strictly adhere to them.

Email: attyjosesison@gmail.com