Martial Law 101

The Requisites in proclaiming Martial Law

There must be an invasion or rebellion, and
Public safety requires the proclamation of martial law all over the Philippines or any part thereof.

The invasion and rebellion must be actual and not merely imminent.

The following cannot be done [Art. VII, Sec. 18]:

Suspend the operation of the Constitution.
Supplant the functioning of the civil courts and the legislative assemblies.
Confer jurisdiction upon military courts and agencies over civilians, where civil courts are able to function.

Open Court Doctrine — Civilians cannot be tried by military courts if the civil courts are open and functioning. If the civil courts are not functioning, then civilians can be tried by the military courts. Martial law usually contemplates a case where the courts are already closed and the civil institutions have already crumbled, i.e. a "theater of war." If the courts are still open, the President can just suspend the privilege and achieve the same effect.

Automatically suspend the privilege of the writ of habeas corpus. The President must suspend the privilege expressly.

A “writ of habeas corpus” is an order from the court commanding a detaining officer to inform the court if he has the person in custody, and what is his basis in detaining that person.

The “privilege of the writ” is that portion of the writ requiring the detaining officer to show cause why he should not be tested. What is permitted to be suspended by the President is not the writ itself but its privilege.

The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. (Sec. 13, Art. III, 1987 Constitution).

The Role of Congress (See art. VII, sec. 18, par. 1,2)

Congress may revoke the proclamation of martial law or suspension of the privilege of the writ of habeas corpus before the lapse of 60 days from the date of suspension or proclamation.
Upon such proclamation or suspension, Congress shall convene at once. If it is not in session, it shall convene in accordance with its rules without need of a call within 24 hours following the proclamation or suspension.
Within 48 hours from the proclamation or the suspension, the President shall submit a report, in person or in writing, to the Congress (meeting in joint session of the action he has taken).
The Congress shall then vote jointly, by an absolute majority. It has two options:

To revoke such proclamation or suspension. When it so revoked, the President cannot set aside (or veto) the revocation as he normally would do in the case of bills.
To extend it beyond the 60-day period of its validity. Congress can only so extend the proclamation or suspension upon the initiative of the President.

The period need not be 60 days; it could be more, as Congress would determine, based on the persistence of the emergency.

The Role of the Supreme Court(See Art. VII, Sec. 18, par. 3)

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of:

the proclamation of martial law or the suspension of the privilege of the writ, or

The Supreme Court declared that it had the power to inquire into the factual basis of the suspension of the privilege of the writ and to annul the same if no legal ground could be established. Hence, the suspension of the privilege of the writ is no longer a political question to be resolved solely by the President. (Lansang v. Garcia, G.R. No. L‐33964, Dec. 11, 1971) This also applies to the proclamation of martial law.

the extension thereof. It must promulgate its decision thereon within 30 days from its filing.

Calling-out power is purely discretionary on the President; the Constitution does not explicitly provide for a judicial review of its factual basis.[IBP v. Zamora (2001)]

The jurisdiction of the SC may be invoked in a proper case.

Although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President’s action, and ascertain if it has a factual basis. [Fortun v. Macapagal-Arroyo (2012)]

Petition for habeas corpus

When a person is arrested without a warrant for complicity in the rebellion or invasion, he or someone else in his behalf has the standing to question the validity of the proclamation or suspension.
Before the SC can decide on the legality of his detention, it must first pass upon the validity of the proclamation or suspension.

Limit on Calling out Power.

Test of Arbitrariness: The question is not whether the President or Congress acted correctly, but whether he acted arbitrarily in that the action had no basis in fact. [IBP v. Zamora, (2000)]. Amounts to a determination of whether or not there was grave abuse of discretion amounting to ack or excess of jurisdiction

4 ways for the proclamation or suspension to be lifted: (P-C-S-O)

1. Lifting by the President himself

2. Revocation by Congress

3. Nullification by the Supreme Court

4. Operation of law after 60 days

When martial law is declared, no new powers are given to the President; no extension of arbitrary authority is recognized; no civil rights of individuals are suspended. The relation of the citizens to their State is unchanged. Supreme Court cannot rule upon the correctness of the President’s actions but only upon its arbitrariness.

RA 7055 (1991) "An Act Strengthening Civilian Supremacy over the Military by Returning to the Civil Courts the Jurisdiction over Certain Offenses involving Members of the Armed Forces of the Philippines, other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing for the Purpose Certain Presidential Decrees"

RA 7055 effectively placed upon the civil courts the jurisdiction over certain offenses involving members of the AFP and other members subject to military law.

RA 7055 provides that when these individuals commit crimes or offenses penalized under the RPC, other special penal laws, or local government ordinances, regardless of whether civilians are co-accused, victims, or offended parties which may be natural or juridical persons, they shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected in which case it shall be tried by court-martial.

The assertion of military authority over civilians cannot rest on the President's power as Commander in Chief or on any theory of martial law. As long as civil courts remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by civil courts. To hold otherwise is a violation of the right to due process. [Olaguer v. Military Commission No. 34 (1987)]

The author takes no responsibility for the validity, correctness and result of this work. The information provided is not a legal advice and it should not be used as a substitute for a competent legal advice from a licensed lawyer. See the disclaimer

Neil Christian

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