Role of the Executive in Declaring Martial Law

The decision to wield the powers

under Sec. 18, Art. VII is within
the wisdom and discretion of the
President.

Sec. 18, Art. VII of the 1987 Philippine Constitution grants the
President three extraordinary powers which he may resort to under specified
conditions namely, calling out the armed forces, suspending the privilege of
the writ of habeas corpus, and the power to declare Martial law.1

The calling out powers of the President is inherently an executive

power, which is not subject to judicial review.2 In the case of David v.
Macapagal Arroyo, the Supreme Court held that petitioners failed to prove
that President Arroyo’s exercise of the calling-out powers, by issuing
Presidential Proclamation No. 1017, is totally bereft of factual basis.3 Under
the calling-out power, the President may summon the armed forces to aid
him in suppressing lawless violence, invasion and rebellion.4 This involves
ordinary police action. 5 But every act that goes beyond the President’s
calling-out power is considered illegal or ultra vires.6 For this reason, a
President must be careful in the exercise of his powers. 7 He cannot invoke
a greater power when he wishes to act under a lesser power. 8 There lies the
wisdom of our Constitution, the greater the power, the greater are the
limitations.9

However, the Court ruled that the assailed PP 1017 is unconstitutional

insofar as it grants President Arroyo the authority to promulgate decrees.
Legislative power is peculiarly within the province of the Legislature.10 To
be sure, neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyo’s exercise of legislative power by issuing
decrees. 11

The ruling on the unconstitutionality of PP107 insofar as it grants

President Arroyo the authority to promulgate decrees is consistent with the
interpretation that “[m]artial law proper is essentially police power.”12 This
conclusion is borne out by the constitutional text, which sets down “public
safety” as the object of the exercise of martial law.13 Public safety is the
concern of police power, which is normally a function of the legislature.14
According to Fr. Bernas, what is peculiar here is that, under martial law, the
executive exercises police power with the aid of the military and in place of
1
PHIL. CONST. art. VII, § 18.
2
Lagman v. Medialdea, G.R. No. 231658, July 4, 2017.
3
G.R. No. 171396, May 3, 2006.
4
Id.
5
Id.
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.
11
Id.
12
JOAQUIN G. BERNAS SJ, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES:
A COMMENTARY 901 (2009 ed.)
13
Id. at 902.
14
Id.
“certain governmental agencies which for the time being are unable to cope
with existing conditions in a locality which remains subject to
sovereignty.”15

In contrast to the President’s calling out powers, the power to suspend

the privilege of the writ of habeas corpus and to declare martial law is
subject to a time limit of 60 days, to review and possible revocation by
Congress, and to review and possible nullification by the Supreme Court.16

The distinction between the three extraordinary powers was clarified

in the case of IBP v. Zamora, here the Supreme Court held that when the
President calls out the armed forces to suppress lawless violence, rebellion,
or invasion, he necessarily exercises a discretionary power solely vested in
his wisdom.17 The Court, however, clarified the “graduation of powers” that
can be exercised under Sec. 18, Art. VII and quoted Fr. Bernas during the
deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is
a graduated power of the President as Commander-in-Chief. First, he
can call out such Armed Forces as may be necessary to suppress
lawless violence; then he can suspend the privilege of the writ
of habeas corpus, then he can impose martial law. This is a graduated
sequence.

When he judges that it is necessary to impose martial law or suspend

the privilege of the writ of habeas corpus, his judgment is subject to
review. We are making it subject to review by the Supreme Court and
subject to concurrence by the National Assembly. But when he
exercises this lesser power of calling on the Armed Forces, when he
says it is necessary, it is my opinion that his judgment cannot be
reviewed by anybody.18

The case of Lagman vs Medialdea, the Supreme Court clarified that

the “graduation" of powers refers to hierarchy based on scope and effect; it
does not refer to a sequence, order, or arrangement by which the
Commander-in-Chief must adhere to.19 This so- called "graduation of
powers" does not dictate or restrict the manner by which the President
decides which power to choose.20 The power to choose, initially, which
among these extraordinary powers to wield in a given set of conditions is a
judgment call on the part of the President.21
Consistent in both IBP and Lagman is that the decision to wield any
of the three powers under Sec. 18, Art. VII, is within the wisdom and
discretion of the President. As held in Lagman, “[a]s Commander-in-Chief,
his powers are broad enough to include his prerogative to address exigencies
or threats that endanger the government, and the very integrity of the
State.”22

15
Id.
16
Lagman v. Medialdea, G.R. No. 231658, July 4, 2017.
17
G.R. No. 141284, August 15, 2000.
18
Id.
19
Lagman v. Medialdea, G.R. No. 231658, July 4, 2017.
20
Id.
21
Id.
22
Id.
However, the power to EXTEND
the proclamation of martial law
lies in the Legislature.
Sec. 18, Art. VII of the Constitution provides that the President can
initiate the extension of the proclamation of martial law but this is subject to
the decision of the Congress.23

Congress has the power to vote jointly24 on the period of the extension
of the proclamation of martial law “if invasion or rebellion shall persist and
public safety requires it.”25 (emphasis supplied) This is another measure
placed in the Constitution to curtail the powers of the Commander-in-Chief26
in the context of proclaiming martial law.

There are no existing jurisprudence on the matter of extending the

proclamation of martial law under the 1987 Constitution but from the
Constitutional provision, it is clear that the requirements for a valid
extension include: a) the initiative of the President to extend it; b) Congress
voting jointly on (i) whether to extend it or not, and (ii) period for the
extension; c) on the basis of actual27 invasion or rebellion persists and
public safety requires it. 28 Failure to comply with these requirements do not
justify an extension of the effectivity of the martial law proclamation.

These extraordinary powers are

subject to inherent constitutional
limitations.

The constitutional limitations for the suspension of the privilege of the

writ are likewise imposed on the proclamation of martial law 29 and its
extension.30 This is clear in the fourth paragraph of Sec. 18, Art. VII, which
states that:

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.31

23PHIL. CONST. art. VII, § 18 states ““Upon the initiative of the President, the Congress may,
in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.”
24 BERNAS, at 918.
25 PHIL. CONST. art. VII, § 18.
26 Lagman, G.R. No. 231658.
27 BERNAS, at 916.
28 PHIL. CONST. art. VII, § 18.
29
ANTONIO E.N. NACHURA, OUTLINE REVIEWER IN POLITICAL LAW 373 (2016).
30 PHIL. CONST. art. VII, § 18.
31
PHIL. CONST. art. VII, § 18.
 In the case of Lagman v. Medialdea, the Supreme Court clarified that
the power to declare martial law and to suspend the privilege of the writ of
habeas corpus involve “curtailment and suppression of civil rights and
individual freedom.” Thus, the declaration of martial law serves as a
“warning to citizens” that the Executive Department has called upon the
military assist in the maintenance of law and order32. As such, their exercise
requires more stringent safeguards by the Congress, and review by the
Court.33
In the case of Lansang v. Garcia and Aquino, Jr. v. Enrile, which
were decided under the 1935 and the 1973 Constitution respectively, the
Court exercised its power of judicial review on the suspension of the
privilege of the writ and the petitions for habeas corpus. In Lansang v.
Garcia, the Court received evidence in executive session to determine if
President Marcos’ suspension of the privilege of the writ of habeas
corpus in 1971 had sufficient factual basis.34 In Aquino, Jr. v. Enrile, while
the Court took judicial notice of the factual bases for President Marcos
proclamation of martial law in 1972, it still held hearings on the petitions
for habeas corpus to determine the constitutionality of the arrest and
detention of the petitioners.35
According to Fr. Bernas, under the 1987 Constitution, the
Constitutional Commission, drawing from the experience under the
authoritarian rule of President Marcos, built into the system “new safeguards
intended to give greater protection to liberty.”36 Hence, under the current
Constitution, the power to suspend the privilege has “ceased to be an almost
exclusively executive affair.”37
In the case of Lansang, the Court accepted the Solicitor-General’s
suggestion that the Court “go no further than to satisfy [itself] not that the
President’s decision is correct and that public safety was endangered by the
rebellion and justified the suspension of the writ but that in suspending the
writ, the President did not act arbitrarily.”38 Fr. Bernas clarified that the new
provision under the 1987 Constitution “obviously means more than just the
empowerment found in Lansang.”39 The new text gives the Supreme Court
the power not just to “determine executive arbitrariness in the manner of
arriving at the suspension” but also the power to determine the “sufficiency
of the factual basis.”40
It is clear that the constitutional grant of extraordinary powers to the
President is still subject to the inherent constitutional limitations under the
Bill of Rights and the review powers of both Congress and Judiciary.

32
Lagman v. Medialdea, G.R. No. 231658, July 4, 2017.
33
Id.
34
G.R. No. L-33964 December 11, 1971.
35
G.R. No. L-35546 September 17, 1974.
36
BERNAS, 552
37
Id.
38
BERNAS 553 citing Lansang.
39
Id.
40
Id.