1987 Constitution explained: Can Duterte declare martial law?

MANILA, Philippines — On Tuesday night, a visibly angry President Rodrigo Duterte warned Chief Justice Maria Lourdes Sereno against what he called as her meddling in the executive branch's war on drugs.

 

"Would you rather I declare martial law?" Duterte said in response to Sereno's advice to judges who were included in a list of government officials allegedly involved in the illegal drug trade to wait for duly issued warrants of arrest before surrendering to police.

 

There are specific requirements, however, before a president can declare martial law, and this has to be done with the concurrence of Congress.

 

According to Article VII, Section 8 of the 1987 Constitution, this, and the suspension of the writ of habeas corpus, can only be done "in case of invasion or rebellion, when the public safety requires it."

 

The president must also submit a report to Congress, whether in person or in writing, within 48 hours of the declaration. If Congress does not agree that martial law should be declared or the writ of habeas corpus suspended, it can "voting jointly, by a vote of at least a majority of all its members in regular or special session" revoke the proclamation or suspension.

 

No declaration of martial law or the suspension of the writ of habeas corpus can last for more than 60 days unless a majority in Congress, again voting jointly, votes to extend it "if the invasion or rebellion shall persist and public safety requires it."

 

The proclamation of martial law or the suspension of the writ may be reviewed by the Supreme Court "for the sufficiency of the factual basis" of the proclamation or suspension if a citizen petitions it to. It has 30 days to decide on whether the declaration or suspension has a basis.

 

"A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ," the constitution also says.

 

The writ of habeas corpus may only be suspended for people charged for rebellion or for offense connected to the invasion while those arrested while the writ is suspended should be charged within three days or must be released.

The last Philippine president to declare martial law was Gloria Macapagal-Arroyo, who did so in Maguindanao on Dec. 4, 2009 in the aftermath of the Ampatuan massacre. 

 

To justify the declaration, she said in Proclamation 1959 that "heavily armed groups in the province of Maguindanao have established positions to resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce the laws of the land and to maintain public order and safety." 

 

She also said that "the condition of peace and order in the province of Maguindanao has deteriorated to the extent that the local judicial system and other government mechanisms in the province are not functioning, thus endangering public safety."

 

Martial law in Mindanao was lifted on Dec. 12. 2009. An earlier proclamation declaring a state of emergency in Maguindanao and Sultan Kudarat and the City of Cotabato after the Ampatuan massacre has yet to be lifted.