The Philippines

Martial law in the southern Philippines: understanding the fine print

BY

Understanding the introduction of martial law on the island of Mindanao in the Philippines is a matter of understanding the fine print. Michael Henry Ll. Yusingco explains

Filipinos were caught off-guard by President Rodrigo Duterte’s declaration of martial law over Mindanao on May 23 this year, however their reaction was one of measured acceptance. In fact, many residents of Mindanao were hopeful that martial law would ultimately bring peace and security to the region.

Many even expected that by the end of the 60-day period of martial law, all terrorists and other trouble-makers on the island would be gone.

The declaration of martial law over Mindanao, the big island in the southern Philippines, had followed a bloody encounter between government troops and the Islamic State-inspired Maute Group in Marawi City.

Appeal of martial law

Situated within the Autonomous Region in Muslim Mindanao, Marawi City covers only a very small area but Mindanao has been an arena for armed conflict in recent decades. The military and police in various parts of this region have battled with Muslim insurgents, communist rebels and criminal gangs over many years. Traditional clan wars called rido are also still prevalent in the ARMM.

Experts now believe that ISIS aims to establish its Southeast Asian base in Marawi City itself.

The government messaging about martial law naturally appeals to Filipino exasperation with years of armed violence in Mindanao and growing concern that ISIS could gain a foothold in the ARMM. According to government legal counsel, Salvador Panelo, martial law over the entire island of Mindanao will ‘strengthen the hand of government in dealing with terrorists’.

What can the government do under martial law that it could not do before?

But what is it exactly about martial law that makes Filipinos, specifically those in Mindanao, optimistic that Duterte will finally be able to quash the villains in their midst? Indeed, what can the government do under martial law that it could not do before?

To answer these questions, we need to recognise the difference between martial law regimes in the Philippines, past and present. The constitutional imprimatur of President Ferdinand Marcos’ martial law proclamation in 1972 was Article VII, Section 11(2) of the 1935 Constitution:

‘The President shall be 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 privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.’

The limits to martial law in the 1935 Constitution were patently very spare, enabling Marcos to assume complete authority over the state, with few legal complications. During his rule, Marcos wielded absolute power and control through martial law over everything and everybody in the country.

Marawi evacuees seek shelter in Iligan. Photo: Wikimedia Commons

On the other hand, President Duterte’s martial law declaration based on Article VII, Section 18 of the 1987 Constitution has established a severely limited regime:

‘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 authorise 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.’

This simply means that under the 1987 Constitution the government is bound by limitations on state action, even under martial law. The draconian authority Marcos enjoyed through martial law during his regime is no longer possible for Duterte. Indeed, immediately after he released his martial law proclamation, the Department of National Defense issued a memorandum to its personnel stating:

‘Any arrest, search, and seizure executed or implemented in the area or place where martial law is effective, including the filing of charges, should comply with the revised rules of court and applicable jurisprudence.’

As far as law enforcement goes, the government has essentially the same power under martial law as it had before

So, as far as law enforcement goes, the government has essentially the same power under martial law as it had before. It is quite hard to imagine what has changed as it endeavours to destroy terrorists in Mindanao.

The response of the United Kingdom to a recent terrorist attack provides an interesting contrast. The UK is now a virtual police state, at least in London and Manchester.

Within a week of the bombing at the Ariana Grande concert, UK security forces had raided the homes of suspected terrorists, seized vital evidence and made several arrests based on suspicion alone, to obliterate any remnants of a terror cell.

Moreover, police and soldiers armed to the teeth are now patrolling the streets to protect civilians from any other potential lone-wolf attacks. None of these draconian moves required any declaration of martial law from Prime Minister Theresa May.

In the Philippines, however, after days of intense fighting, including air strikes on Marawi City, the military has yet to neutralise the Maute Group completely. Worse still, casualties are piling up on all sides. This disappointing outcome leads to the conclusion that martial law has done little to help government forces muster a more effective response to the Maute Group.

Limitations

The severely constricted martial law regime makes a repeat of the atrocities during Marcos’ martial law reign unlikely. Philippine media is still free and active, and Filipinos can still rely on the vigilance of civil society groups to monitor military operations in the affected areas.

Importantly, there is a watchful and sympathetic international community on alert to call out any human rights abuses perpetrated by the Philippine government. But the ability of the Maute Group to effectively hold Marawi City hostage for such a long time shows that martial law may not be the appropriate state response to terrorism.

When compared with the government response to terrorist attacks in the UK, it is ironic that the declaration of martial law in the Philippines highlights the government’s lack of preparedness in addressing this grave global issue.

President Duterte and his allies in Congress still need to find the right solutions for serious security issues. Not only in Mindanao, but throughout the Philippines.

Featured image: Capitol Mosque, Marawi City, Mindanao. Source: Wikimedia Commons

About Michael Henry Yusingco

Michael Henry Ll. Yusingco is a legislative and policy consultant, published author, and lectures part-time at the School of Law and Governance, University of Asia and the Pacific in the Philippines. He conducts research on state-building, decentralisation and constitutionalism.

Published:
21st June, 2017

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