Solomon Lumba is with the University of the Philippines College of Law and a fellow of Action for Economic Reforms (AER). Lawyer Nepomuceno Malaluan is a board member of AER and the convenor of the Access to Information Network.

Using the measures and regulations of one generation or one age to govern the world is like the case of a traveler in a boat who drops his sword in the middle of the river and notches the edge of the boat to mark the spot where the sword fell; then he goes back to the riverbank that evening to look for the sword below the notch on the boat.  He is far from knowing what is what.    – Huainanzi

In declaring martial law, the Constitution gives the President three kinds of discretion.  The first is the discretion to determine what facts are relevant.  The second is to determine whether, based on such facts, there is an “invasion or rebellion, and the public safety requires it”.  The third is the discretion whether or not to actually declare martial law.

The first two kinds of discretion relate to whether the President can declare martial law, while the last relates to whether the President  should declare martial law.

The Constitution provides for two checks to the exercise of these discretions.

The first is a legislative check wherein Congress, in joint session, can make a de novo or fresh or new review of all three discretions and make an independent determination not only whether the President can, but more importantly, whether the President should have declared martial law.

The second is a judicial check by the Supreme Court, but it can only review the first two discretions to determine whether the President can declare martial law.

The outcome of these reviews will depend in a large measure on the standard of review to be adopted by Congress and by the Supreme Court.  Generally, when the discretion of the executive, legislative and judicial branches are in question, the standard of review is either reasonableness or grave abuse of discretion.  These are very low standards and allows the various branches to justify a lot of actions which would not otherwise pass muster had a more stringent standard been applied.

But extraordinarily, when the exercise of discretion directly affects fundamental rights, such as the right to life or to liberty, it is usual to adopt a much higher standard.  Thus, if a person’s right to speech is to be impaired, the standard of review is clear and present danger.  If a person is to be sentenced to death penalty or imprisonment, the standard is proof beyond reasonable doubt.  The latter simply means moral certainty, that is, whether one would be able to sleep soundly at night after having imprisoned or put a person to death.

Since martial law, by its history and nature, involves an immediate danger to the fundamental rights of life and liberty, Congress and the Supreme Court ought to interpret the Constitution as to require a standard of review that at the very least requires moral certainty.  Thus, if the members of Congress or the Supreme Court feel uneasy or lack a sense of moral certainty that there is rebellion, or that the public safety requires it, or that martial law is the way to go in Maguindanao, then it behooves them as a matter of collective wisdom to revoke or strike down Proclamation No. 1959.

Once the standard has been adopted, the question turns to whether the institutions granted by the Constitution with the power to check the exercise of the martial law power of the president are up to the task. The check must be wielded with a requisite degree of independence for them to work. For example, the lack of mature political parties, as well as the system of incentives within Congress, makes it easy for the President to capture the allegiance of a majority of the members of
Congress, particularly the Lower House, negating the very essence of a legislative check.

Proclamation No. 1959 will be the first time that the structures and mechanisms that we have placed in tfhe 1987 Constitution to check the president’s discretion to declare martial law will be tested.  Congress, the Supreme Court, and we as a people should not be bound by the standards of the past under the 1935 and 1973 Constitution.

How we act today will determine how tyrants will act tomorrow. If we respond out of habit, those very habits could be the rope that will hang us all.