Martial law and the President's power to legislate

MARTIAL LAW IN PHILIPPINE CONSTITUTIONAL LAW. Fr. Ranhilio Callangan Aquino;;; rannie_ Read more: Ranhilio Callangan Aquino. September 20, 2020. "My article in The Manila Times tomorrow."

When Ferdinand Marcos declared martial law, the Constitution that provided him his warrant was the 1935 American constitution, and when he was asked why he was reading too much into the very parsimonious provisions that dealt with the emergency powers of the Chief Executive, he cited American jurisprudence, and there was considerable precedent, after all, the American states and the Union itself had had creditable experience with martial law.

Under the 1935 provisions, Marcos arrogated to himself legislative power, arguing that the emergency was such as to necessitate determination of legislative policy by the Commander-in-Chief. Attempts to challenge martial law failed. The Supreme Court held that it would not cross the divide between political and justiciable questions, after all, the 1935 Constitution vested the power exclusively in the President. Civilians were tried before military commissions, and once more this was questioned. The Supreme Court found nothing wrong, maintaining that the establishments of military courts was necessarily incidental to military rule. The grip of Baker v. Carr on Philippine jurisprudence remained tight.

Written in the shadow of Martial Law the 1973 Constitution did no better. Amendment No. 6 allowed Marcos to issue decrees on emergency matters even when the Batasan Pambansa had already convened. They were not necessarily bad laws that Marcos promulgated as law. Many PDs are still in force today.

So, why keep the martial law provisions if we have had unpleasant experiences with it? It should not take too much cogitation to admit that a system of three coordinate branches checking and balancing each other is not the most efficient way to handle national emergencies that rise to the alarm level of invasion and rebellion. And even the 1987 Constitution accepts this. It allows for the possibility of the President being granted emergency powers for a limited time to carry out national policy subject to the terms that Congress may set. Article VI, Section 23 does not limit the powers Congress may grant, and I submit that this includes the power to legislate in the form of decrees, as the Spanish and French constitutions analogously provide.

In fact under the 1987 Constitution, the President's power to declare martial law has been so truncated that not only is the factual basis for its declaration -- clearly political in nature -- now subject to judicial review. The Legislature must concur. It has been asked with good reason that if martial law does not automatically entail the suspension of the privilege of the writ of habeas corpus, then what else is the President able to do under martial law that he cannot achieve by an exercise of the calling-out power?

The point is that dear to us as our liberties and freedoms might be, we cannot completely defang the presidency, because it may just be such powers that may be necessary to keep the form of social and political order we have in existence, whether you call it democracy or give it some other characterization. Read more: Ranhilio Callangan Aquino. September 20, 2020. "My article in The Manila Times tomorrow."