Martial Law under the 1935, 1973 & 1987 constitutions

Today is the 50th anniversary of Martial Law. The president who declared martial law then was the father of the incumbent president. Many of today's generation are children or grandchildren of those arrested, detained, and died "without seeing the dawn". Some of the victims are still alive and reliving the pain and suffering. We should honor their sacrifices as we enjoy the freedoms we have today.

President Ferdinand Marcos Sr. declared martial law on September 21, 1972. Marcos Sr. called for the 1973 Constitutional Convention which he controlled. He governed the nation from 1973 to 1986 under a controversial constitution, whose ratification was questioned by many and doubted as to its validity. The presidential powers then were almost limitless. Not anymore today. President Ferdinand Marcos Jr is now governing the nation under the 1987 Charter, which was ordained, promulgated, and ratified under the Cory Aquino presidency. Many ask whether or not it’s still possible that the horrors of the past can happen again. Let’s look at the three constitutions in order to answer that question objectively.

The 1935 Constitution was intended to be a libertarian charter largely patterned after the US Constitution. It was adopted by the Filipinos when we were still a commonwealth under the USA. But in the hands of a president with an authoritarian paradigm, it was used as a basis to justify staying in power beyond the two term limits and the eight-year maximum tenure of any president. Article VII, Section 10, paragraph 2 provides: "The President shall be the commander-in-chief of all armed forces of the Philippines, and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of habeas corpus or place the Philippines or any part thereof under Martial law." Based on this provision, thousands were arrested, detained (this writer included) and some even died. The justification is to defend the people from threats to national security.

The 1973 Constitution was an ultra-right, strong government type of charter, with powers in the hands2 of the government rather than the people. It was adopted under suspicious and controversial circumstances during martial law when the country was governed by a constitutional dictator who governed the whole nation by virtue of his powers as commander-in-chief of the armed forces. The same provision of the 1935 Constitution was copied and provided as Section 9, Article VII of the 1973 Constitution. But it was amended respectively on October 16, 1977, January 30, 1980, and April 7, 1981, making the government a parliamentary form, it made the president less powerful and transferred power to the prime minister under Section 12 of Article IX. There has been a tinkering of the fundamental law apparently to give more powers to the so-called constitutional monarch.

Fresh from 21 years of dictatorship, and as a complete reversal and abrogation of authoritarianism, the 1987 Constitution has been described as left of center, pro-people, pro-poor, pro-labor. It was adopted by post-EDSA people who were in euphoria after 21 years of Marcos rule. The prevailing forces were controlled by middle-class, church-based, and elite intelligentsia who felt that powers should be taken from the government and returned to the people.

Learning from the lessons of history, the framers of the 1987 Constitution intended to put a strong check and balance on the powers of the president. Under the 1987 charter, the president can suspend the privilege of the writ of habeas corpus only for a period not exceeding 60 days. Within 48 hours from such suspension or from declaration of martial law, the president is mandated to submit a written report to Congress. Congress, voting jointly, may revoke the suspension or proclamation or extend its effectivity by vote of simple majority.

It is also provided that the Supreme Court may review the declaration of martial law and must decide within 30 days. The Constitution cannot be suspended during martial law. In other words, martial law now is not the sole prerogative of the president. Both Congress and the Supreme Court can dilute, modify, revoke, and nullify any act of the president in relation to martial law. There were many acts that the president in 1972 was empowered to do, and which the president of 2022 is strictly prohibited from doing. We learned our lessons. Those who refuse to heed the lessons of the past are bound to suffer from the same mistakes in the future.