In a State of Anaesthesia

This coming September 21^st, our nation will commemorate the 40^th anniversary of a peculiar yet defining moment in our nation’s history – the declaration of martial law[1] by the late strong man, President Ferdinand Marcos.

I only know this period from documentaries, history books and some personal accounts by my parents.  Now that we are studying the law, it would be fitting to see this part of history in its legal dimensions. Bernas, S.J. in his 2009 Edition of the 1987 Constitution of the Republic of the Philippines: A commentary lucidly summarized the jurisprudential legacy of martial law:

1. Aquino, Jr. v. Enrile[2]. The court essentially validated the proclamation of martial law on the basis of continued rebellion and the said proclamation 1081 had merely placed the fundamental law “in a state of anaesthesia, to the end that the much needed surgery to save the nation’s life might be undertaken.  

2.Aquino, Jr. v. COMELEC[3]. This case involved a petition for prohibition seeking the nullification of presidential decrees calling for a referendum on February 1975. The court held that the President does have legislative powers by virtue of him being the administrator of martial law and since he alone can convene the interim National Assembly which he has not yet convened; he alone has the active legislative authority.

3. Aquino, Jr. v Military Commission No. 2.[4] The court held that under the exceptional demands of martial law, the conferment of military tribunals with jurisdiction to try civilians is necessary for the attainment of the objects of martial law.

4. Salidad v COMELEC.[5] The court held that the President may, under the extraordinary conditions of martial law and of the government under the transitory provisions, may propose amendments to the constitution in the absence of a grant of such constituent power.  

With the decision in Sanidad vs Comelec, the main lineaments of pre-1987 Philippine marital law jurisprudence were drawn: (1) the martial law proclamation of 1972 was validly made on the basis of an existing rebellion; (2) the imposition of martial law carried with it the suspension of the writ of habeas corpus; (3) the martial law administrator could legislate on any matter related to the welfare of the nation; (4) he could create military tribunals and confer on them jurisdiction to try civilians for crimes related to the purpose of marital rule; (5) in the absence of any other operative constituent body, the President could even propose amendments to the constitution. All of the above, moreover, are confirmed by the broad grant of power found in Article XVII, Section 3(2), of the 1973 Constitution[6] which, as will be seen below, was itself ratified in a most unique manner. The Supreme Court was to add later that under martial law, claims of denial of a speedy trial were unavailing, and that the suspension of the privilege of the writ of habeas corpus also suspends the right to bail.  

Having this very basic understanding of the tone of jurisprudence which rose out of the marital law era would lead us to appreciate why vast changes on the martial law powers were instituted in the 1987 Constitution. The basis for declaring marital law has been severely restricted and opened for checks on both the legislature and the judiciary. In the long run, the 1987 constitution hopes that the exercise of an essentially police power called the martial law be used only on the most urgent and dire situation and not to serve as means to perpetuate absolute power at the expense of individual liberties.

---

[1] Proclamation No. 1081

[2] 59 SCRA 183

[3] 62 SCRA 275

[4] 63 SCRA 546

[5] 62 SCRA 275

[6] All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after the lifting of the Martial Law or the ratification of this Constitution unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or unless expressly or implicitly modified or repealed by the regular National Assembly.