By: Oscar Franklin Tan, Philippine Daily Inquirer
Who sends Tyrion Lannister to a sword fight and Jaime Lannister to a
negotiating table? Sadly, this is what the most vocal legal critics of
martial law have done in the past 18 months.
Martial law is our most formidable emergency power. Deploying it merits serious political and legal questions.
The political asks: Is martial law correct? The legal asks a more basic question: Is it even permitted given the facts?
Law sets minimums but cannot decide for us.
How confused has the legal debate been?
Initially, for example, critics argued a president may not declare martial law if not recommended by his defense secretary.
No judge could accept this. Our Constitution has no such requirement
and it is illogical because a president may overrule or even replace his
defense secretary any time.
Sensible legal advocates frame:
1. What actual powers does martial law grant?
2. How has martial law actually been used since May 23, 2017?
3. What military plans for 2019 cannot be pursued without martial law?
Visualize the Marawi siege.
At its height, Mayor Majul Gandamra and policemen barricaded
themselves in Marawi’s City Hall, preventing the Islamic State flag from
being flown there. City hall reopened days later, although it was too
dangerous for staff to come to work daily.
This is the extreme scenario martial law solves. With the mayor
fighting for his life and other officials dead or in hiding, martial law
empowers a general to intervene and restore government.
But this picture equally demonstrates when martial law is irrelevant.
If no bullets are flying and City Hall is open, what does martial law
authorize the general to do that he cannot normally do? Remember, the
military already has broad powers, to match its broad responsibilities.
Article VII, Section 18 of our Constitution primarily requires an
“actual” — this is the technical legal term, contrasted with threatened
or imminent — rebellion to declare martial law.
Our Supreme Court’s Lagman decision, in February 2018, allowed a
second martial law extension. It accepted that an “actual” rebellion
tried to remove territory from the government. The military is still
chasing rebels across Mindanao as they try to regroup, recruit new
members and restart the fighting.
How does one dissect planned action in 2019 in a legal context?
If the plan is for a general to run Marawi due to a new attack, this may meet Article VII, Section 18.
But if the plan is to chase rebels into mountains and swamps, troops
may be transferred to Mindanao under normal powers. And generals do not
need to temporarily take control of mountains and swamps from civilian
leaders.
If the plan is to step up intelligence and counter terrorist
recruitment, the military is also already authorized. And only new
legislation, not martial law, would give them additional budgets and new
legal tools for intelligence.
If the plan is to improve peace and order and scour the countryside
for loose firearms, then this is a job for police, not the military.
Peace and order is a civilian task and the police is a civilian agency.
Remember, the military may be deployed to assist police under normal
powers, without martial law, as they are to help build roads in remote
areas and rescue flood victims.
One concludes martial law is the wrong legal tool to achieve many
military goals, as opposed to new legislation, increased budgets and
troop redeployments. It is thus crucial to set politics and egos aside
and have the separate legal debate free of drama.
The goal must be to deploy the best legal tools to allow our soldiers
to complete their mission safely and allow Marawi to rebuild with
dignity.
Further, we have an obligation to the next generation to document how
the new martial law was implemented in fidelity to our Constitution.
But we must understand the difference between political and legal
arguments, as we do the difference between standing beside Tyrion and
beside Jaime in a sword fight.
React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan,
facebook.com/OscarFranklinTan. This column does not represent the
opinion of organizations with which the author is affiliated.
