Lawyers warn of deletion of martial law safeguards in draft Charter

A group of lawyers raised the alarm yesterday on proposed changes in the 1987 Constitution, saying these will make declaring martial law much easier.

Important provisions that are supposed to be safeguards against such a declaration were surreptitiously deleted in Article VII-A, Section 12 of the proposed Charter, according to the Counsels for the Defense of Liberties (Codal).

Codal warned Congress and the public against falling for this move, as letting it pass would lead the country back to the Marcos era when dictatorship ruled.

Codal spokesperson Neri Colmenares said the deletions would make President Arroyo a very powerful president, considering that the proposed parliament and the Supreme Court would no longer have the authority to check her martial law powers.

"Due to our experience during martial law when the Supreme Court used the political question doctrine to shirk from its duty to look into the arbitrariness of the martial law declaration, the 1987 Constitution expressly enshrined the power of the court to look into the factual basis of martial law," he explained.

According to Colmenares, the proposed "Arroyo Constitution" eliminates this role and duty of the Supreme Court aside from making it easy to declare martial rule.

"Furthermore, the Arroyo Constitution added a new ground for the declaration of martial law and suspension of the writ — insurrection or the imminent danger thereof," Colmenares pointed out.

"Under this rule, EDSA 1 and 2 can be the basis for the declaration of martial law as part of an insurrection," he said, referring to the two people power uprisings that overthrew the Marcos regime in 1986 and the scandal-laden Estrada administration in 2001.

The lawyer’s group listed provisions that it said were erased from the 1987 Constitution. These provisions were drafted and adopted after dictator Ferdinand Marcos was ousted.

According to Codal, deleted was the provision that "within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the (President-Prime Minister) shall submit a report in person or in writing to (Congress-Parliament)."

He continued: "(Congress-Parliament), 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 and the Prime Minister."

"Upon the initiative of the (President-Prime Minister), (Congress-Parliament) may, in the same manner, extend such proclamation or suspension for a period to be determined by Parliament, if the invasion, rebellion shall persist and public safety requires it." 

"(Congress-Parliament), if not in session, shall, within 24 hours following such proclamation or suspension, convene in accordance with its rules without need of call."

Codal said the part specifying that "the Supreme Court may review in an appropriate proceeding filed by any citizen, the factual basis of the proclamation of martial law… and must promulgate its decision within 30 days from its filing" was also erased.

Deleted as well was a provision stating that "the state of martial law does not suspend the operation of the Constitution nor supplant the functioning of civil courts and legislative assemblies nor authorize the conferment of jurisdiction on military courts… nor automatically suspend the privilege of the writ."

Lastly, Codal said the proposed changes no longer carry the rule that "the suspension of the… writ (of habeas corpus) shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected to the invasion.

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

Codal warned that considering Mrs. Arroyo’s penchant to declare any criticism against her "destabilization" and a threat to national security, she could, in fact, declare martial law the moment people power takes place.

Worse, the "imminent danger" standard, which is much lower than under the current jurisprudence on "clear and present danger," supposedly makes it easier for Mrs. Arroyo to suspend the writ of habeas corpus.

"With this rule in place, there will be no need for an anti-terrorism law, as the warrantless arrest of those considered the ‘enemies of the state’ will be constitutionally enshrined," Codal said.

Colmenares noted that with additional powers for the President under the proposed Constitution, she could declare martial law and dissolve the parliament, a throwback to the martial law era when Marcos closed Congress upon declaration of martial law. The only difference is, he said, was that such an act would now be constitutionally protected.

The proposed changes and deletions in the 1987 Constitution were just a few that Codal highlighted in objecting to the proposed Charter before Congress. He said the new draft also grants the President greater powers until 2010 under Article XVIII, Section 8.