MART1AL LA~
COPE,
By
FRANCI
FROB
0
J.
EM~ A D PROPOSAL
H.l\VEZ'"
A country ca-n 'f~ t1 r crtull 1) ac
vn. its a1'ms forever.
Human and
principled leaders 1nay com.
But
tOT
each. of this kind th re thrive
t n times more vicious men, ob sessed with wielding the scepter ot
power, contemptuous of the law and
indifferent to liberty.
I . INTRODUCTIO
he literature
on the subject 0 martial law is still at sea.
onfusion and divergen
vi w. chara teriz
rather
han limi and
define martial law. The confu ion lie to a gr at x ent not nlv
upon the absence of all accepted definition of the subject but more
o upon the fact that the field of jurisprudence
in the Philippine.
as far as martial law is concerned is still relatively barren.
Prominent au horitie. , more often than no , contradict rather than omplernent each other in their dissertations
on the nature, scope and
limitation
of martial law. Ther is a tendency amon
civilian to
understand martial law a- a body of rule and re ulation governing
the Armed Forces 0 the Philippine.
Strictly
however, this view
refers to military law. Military law in its generic sense, however.
mbraces martial law militar
government and mili ary law. ince
it affects not merely the military but the civilian population as well.
it is more deserving of the legal profession's concern.
This is particularly tru of martial law, which is the most complicated in nature
and the least understood among the triple aspects of the exercise of
military jurisdiction known to our laws a present. \
The term "martial law" is. as has been long observed by the legal
profession, inaccurate and misleadin
thi despite the exposition 01
the subject by hief Ju tice
hase in his dissenting opinion in he
Milligan case. Some of the confusion undoubtedly
is hi. tori cal.
The term originally applied to the discipline of the army and was
administered in the court of the mar hal and the constable.s
One of the reasons for the confusion which surrounds martial
law is that historically the term has been used loosely and improperly
by a grea many judge. and legal scholars.!
Martial law has been
confused with "military government'
which is the rule impo ed by
• Vice-Chairman, tudent Editorial Board Philippine Law Journal.
Martial Law in the Philippines, 14 LAWYERS J. 506 (1949).
2 Anthony, Martial Law in Hawaii, 30 CALIF. L. REV. 37 , 382 (HI42) iting1 Santos,
1 HOLDSWORTH, A HISTORY OF EKCUSH LAW 573 (1922).
a Comment,
42 SO. CALIF. L. REV. 546, 549 (] 69 _citing
LAW OF MARTIAL
RULE, 20-23.
FAIRMAN,
THE
326
P~lIUP,
I.'E
L' N.f
'RXAL
[VOL . .15
a victoriou
army OYer an occupied country- and with "military
law' which is the law by which the military govern its own affai .6 It mu t be distinguished from the u e of the army as an
aid to civil government for it is something more than mobilization
of the armed force.
As a general rule, martial law is the use of
military force to perform the functions of civil government.
An objective assessment of world-wide and domestic conditions
raises the probability of the imposition of martial law. So long
as the threat of subver ion imminently exist and the peace and
order situation in the country worsens the imposition of martial
law looms over the head of the citizenry like he pro erbial sword
of Damocles.
There is thus a need to restudy the major a pects of martial la••
a well a the legal problems concomitant thereto and propose proper
remedies to the same.
Legal and Historical
Bases
Martial law was until 1916, unknown to our I w.
Although
it appear
that the paniard
were not entirely ignorant of this
law, they did not resort to it during the entire period of their occupation of the country.
The paniard
preferred the simple expedient of u ing their military power as conquerors in the suppres ion of insurgency and filibu terism.
The various constitution
proposed and considered for adoption during the revolutionary period
did not contain any provi ion with respect to martial law." On the
other hand th Malolos Constitution contained orne provisions which
approximate the "state of siege" of most continental European countries rather than martial law. It provided that the guarantees
secured under article 7 paragraph
11 and paragraphs 1 & 2 of
article 20 cannot be suspended in the whole Republic or in any part
thereof except temporarily and by irtue of a special law." It was
the Jones Law particularly section 21 thereof which introduced
martial law into our jurisdiction when said law empowered the
Governor-General "in case of rebellion, invasion or imminent danger
thereof, when the public safety requires it, (to) suspend the
privileges of the writ of habeas corpus or place the Islands or any
part thereof under martial law.'
Our present provision on martial law is lodged in the onstitution. A perusal of the provision would reveal that the declaration
• Ibid:
S
Ibid,
6 Santos, lIUprCl, note
1 at 50 • f.n. 7.
7 Ibid. citing KALAw, TffE MALoLOR CONSTITUTION,
77-78.
am.
30 & 31, Tit. IV,
1969]
RTI
L L W
of martial law i based upon th undefined law of neces ity, corollary to the declaration contained in the on titution that 'the defense
of the State is a prime duty 0 government
x x x."
Thu, tha
Philippine Constitution provide
that "The President
h 11 be commander-in-chief
of all armed force of the Philippine
and, whene er it becomes necessary
he may all out uch armed forces to
prevent or suppres lawle
violence, invasion, insurrection,
or rebellion. In ca e of inva ion, in urrection
or rebellion or imminent
danger thereof, when the public afety require it, he may upend
h privileges of the writ of habeas corpus or place the Philippin s
or any part thereof und r martial law."? That the framers of our
pre ent Con titution had foreseen ad rse force which would threaten the very exi tence an foundation upon whi h th
tate has b n
built and founded may b afely as umed.
IT.
OPE
T'h imposition at' mal" ial law is an a t of self-defen
of the
tate an act
If-pre ervation, based upon nece. ity.
In the
Uni ed tate.
the
uprem
ourt had occa ion to c n ider that
martial law is 'founded on nece sity and i inherent
in governmen
nle
th r igh and pow r exist, peace and goo order.
security .
"0 ernment
itself . _ _ may be destroyed and obliterated
when the domination
of the mob become
0
powerful
hat it cannot be tayed by the civil authcritiea.t'P
Consequently, while th
onstitution
guarantee
individual right
and
libel ies in such s ereotyped phrase
a "due proc
"and
"equal
prot ction of the laws" yet, that in ca e of extreme conflict between
su h i ht and the preser ation of the State the former has t
yield to the latter eems apparent from the above-quoted provi ions
of he Philippine
onstitution.
The particular
can titutional provi ion under study reveal the bar es. entials attendinz th imposition of m rtial law to wit:
(1) There is actual
(2) Th
bellion, and
I'
invasion,
is imminen
(3) Public safety
danger
necessity)
in urrection
or rebellion,
r
of inva ion, in urre tion or rer quire
the imposition
of martial
law,
It is quite cleat' that on occasions of invasion, insurrection
or rebellion, martial law i not declared a. a matter of course. There
i the additi nal condition that public sa ety requir
it, thereby
8 CON ST. art. 11 ec. 2.
9 CO ST. art. VII sec. 10(2
10 Moyer v. Peabody. 212 U ..
,
78 88. 53 L. Ed.
10, 29 S. Ct. 238 (1909)
~32
PHILIPPI
E
W JO
R
AL
['
OL.
45
indicating he care, caution and objecti e deliberation as prior . ttendant consideration
b fore martial law is declared. For the rul
of martial law, after all, is the as umption and performance by the
military of some or all the functions of government, as when civilian
authorities are prevented by invasion insurrection rebellion or imminent danger thereof.
The military herefore during the rule of
martial law should be iewed as a mer agent or instrumentality
of
the civil government with the end of controlling disorder disturb nee
or lawlessness among th civilian population and thereby restore
peace and order. It is temporary governance of civil affairs by th
military once the civil government is disrupted or unable to function,
in whole or in part, with a view to restoring to the civil government
its functions a soon as condition permit.
It is therefore a mea ure
r method of preserving the go rnmen when the usual or normal
methods to thi end prove inadequate.'!
According 0 the extent of i coy rag, martial law may
cla ified into two, to wit: ab clute and qualified.
The first refers
to a ituation in which the military displace the civil government
and governs a particular territory according to the dictate of military nece sity and the law of war. Thi generally obtain in war
during the occupation of enemy territory.
n this situation, all
powers of government may be exerci ed by the military - executive.
legislative and j udicial."
The second refers to a situation where
the military has been called to aid the civil government in repressing civil disorders.
This obtains in ca e. of insurrection rioting or
widespread violence and di order.
n thi situation. the ~lllthority
of the military i limited to exerci ing orne function
of the ci 11
government in he area or scene of di order or conflict. particularly restoration and maintenance of the peace. regulation of activities
affecting the peace and order situation, etc. There is a sharing
by the military authority with the civil government to the extent
nece ary -in dealing with the ituation.
The powers exercised by
the military in uch a situation are generally limited to those of th
exe utiv . including issuance of ordinance. and other measures.'!
Power Subject to Abuse
So wide is the latitud of di cretion repo ed upon the Executi e in the determination of h existence of conditions n ces ary
for the imposition 0 martial law hat the t ndency to wi ld that
II C.f. supra, note 3 citing Fairman
at 23-25; DOWELL, MiLITARY AlD T
To CmL POWER, 231-232.
12 Prize
Cases, 2 Black 635. 17 L. ~d. ~n0 (1 63:
.. \I. Diekelman
92 U.S. 520, 23 L. Ed. 742, (1876)
]3 Fairman,
Martial Rule and till' upprl'ssi n of Insurrection, 23 ILL. L.
REV. 771 (1929);
Ballantine, Qualified Martial Law, A Legislative
Propoeat,
14 MICH. L. REV. 102 (1915): Ballantine, Marti<!} ~aw 12
LUM. L. REV. 529
(1912)l . .';
.
.
1970J
MARTIAL
L
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329
power arbitrarily
and capriciously cannot be overlooked. Court
have long established the conclusivenes of the Executive's determination of the necessity for the imposition of martial law and in
case where such determination is legally and factually dubious, the
Courts have never attempted to resolve the issue squarely but rather
proceeded to rule on the invalidity of the measures taken in pursuance
of martial law. Thus, the danger of abuse in the exercise of the
power to declare martial law obtains not only in the Executive
with whom the determination of the nece sity i originally reposed
but al 0 upon the agencie through and by means of which measures
'Of martial law may be executed. Since the basis of martial law
is necessity, it is quite apparent that no iron-clad rule may be standardized and applied to all cases a to whether a measure or an act
done uppo edly a a measure of martial law is within the bound
of necessity. Thus, the maxim "Quod alias non tuit licitum necessitos licitum tacit" (Necessity makes that lawful which otherwise
would be unlawful)
and 'Quod enim necessitas coqit, detendit"
(Necessity defends or justifies that which it compels) - ought to
be given due consideration.
However, not all act done in the guise
of the much-abu ed word "necessity" are justified or justifiable.
For when acts done are patently beyond the bounds of neces ity,
with due regard to all obtaining circumstances, the Court will not
be reluctant in pointing out the indefensibility of such acts. Utmost
care should be taken in probing upon acts done suppo edly a measures of martial law, For while martial law may be imposed to aid
the civil government and restore and maintain peace and order, the
human frailties of persons upon whom the execution of measures of
martial law are incumbent, more often than not, defeat the purpose
for which martial law had been imposed. In the name of martial
law, lives had been whimsically taken away, liberty arbitrarily
denied, property destroyed and illegally confiscated, women desecrated new paper circulation suppressed, pre s censored, objectionable faces deported, strike
outlawed, community curfewed,
magistrate
deposed, inhabitants punished by military commi sions,
non-union mines closed and production of oil restricted.t! Following
the attack on Pearl Harbor, in December 1941, the commanding gene al of the US army in Hawaii assumed the powers of a milita y
governor, governed the territory by decrees and by General Order
No.3 of December 7, 1941, named the Chief Justice of the Supreme
Court of Hawaii as chairman and law-member of the military commission and the acting US Attorney General a trial judge advo14
antos,
8U'/Wa,
note 1 at 508 f.n. 36-45.
330
PHIUPPJ
~ LA W JOURNAL
(VOL
4&
cate.'! In the U cas of •. terling v. 011 ·tanti'fL€ 1 the Go' roar of
Tex
c ttempted
to enforce oil pr duction quotas by declarin
martial
law in the oil field.
H re, th Governor sought to restrict oil production by a declaration of martial law in the area concerned although
the ondition then obtaining did not cs 11for the nee s it
f mar ial
law.
ons quently, the
upr me ourt affirm d the rder of the
trial court granting injunction in favor of per ·on. aff ted res training the
overnor from
nforcing martial law.
Liabilit1/
For
A ts Done
Duriua
Rule Of Martial
L(/1I"
In theory and ometime
in practic
the Filipino people believe and mo t probably uphold the principle tha the hava a overnment which adhere
0 the I'U!
of law and not to he rule of
men.
on. equently, during time of martial la rule, the Executive
upon whom the determination
of neces ity for the imposition of
martial has been expressly granted by th
on titution
and the
military
which i the agency through
anti by m ans f
hich
martial law may be enforced, do not po ess and ex rcise unettered or absolute power.
They are, as they should be under
the law.
ince necessity i the ba is of mar ial law. all acts done
in pursuance thereof will have 0 be gauged by such necessity.
uch
necessity limit not only the scope of the power to be exercised
but also the duration thereof.
0 can titutional
right therefore may
be violated obstructed or impaired
xccpt 'I h n extreme necessity
compels the action.
Any act of the mili ar: beyond the bound of
uch nece sity wo ild therefore b unjustified. un alled-fnr and conequently illegal.
Pur uan
0 the undefined
law of nece sity herefore the military cannot unlawfully do act with impunity under the protective
mantle of the phrase "pur ..uant 0 rnensures of mar ial law.
I'he
military is subject to criminal as weJi as civil prosecution and upon
conviction. i liable for ac s done during and af er martial law.
HO\ ev r
inee ther 's no tandard barometer with which to
measure the reasonable necessity upon whi h the defendant may have
acted the obtaining circumstances, among others
hould largely be
taken into account.
The defendant i to be judged not a cording to
the response of a magistrate
who its comfortably
in his swivel
chair. The ourt must put its I in the position of the accused. in
the light of facts and ircurn tance which ha confronted the latter
during moments of stres and train.
T this effect the
.S. up16 Fairman, Th
Law 0/ MaTtial Rul« and Th
aticma.l Eme'rgency 5&
HARV.L. REV. 1253 at 1283 (1942) a cited by Santos, eicpra not 1 at 50 .
re 287 U.S. 378 5 •. Ct. 190. 77 I..•.Ed. 375 (932).
17 Id., at 399-40 .
MARTJAL
1~t'IO]
ur in the .as 0
hief Justice Hughes
I'm
Mr.
~ lt« -ling
said:
1".
LAW
!l
••
Csmstunti « sp ak ing through
"The natur
of the power al 0 nece sar-ily impli .: tha there i
a permitted range of hones judgment a to th me sure to be taken
ir; meeting force wi h force in uppre sing violence and restoring
ord r for without such liberty to make immediate
decision,
the
pow r it If would be useless.
uch measures
concerned in ~ood
faith, in the [ace of cl1wrgenCIl and directly relat d to the quelling
of th disQ1"Cll' OT the prevent'ion
of its continua,nee, fall within the
discretion of the Executive in the exerci e of his authority to maintain
peace.' 17 (Empha is upplied)
It can readily be een from
he bo -qu ted pron unc m nt f
the U
uprerne
urt that it i only when ac s were done in "good
faith' and 'in th fae of mergency and dire ly related to the
quelling 0 the di rder or the prev nting of i R continuance,'
that
the arne rna. be defen ibl ,
eyond the e r quisite ,th
can,'
again t the accused would b atron er. For it is lear that crimes
against cha tity cann
be aid to ha e been don \ "il goo
aith
or 'in the ace of the emergency or directly relat d to the quelling
of disorder."
A to whether the acts done exceed the bounds of
n ce ary and rea onable dis retion i therefore a que tion f fa
t be judicially determined.
In undertaking
this ta k •• h state
of fa t as they appeared to tbe officer at the ime he actecl mu
g'overn the d cision : for he mu t n cessa ily ac upon th information of othe .s as well a, hi, own ob ervation.
And i I, with 511 11
information
a he had a right t rely lIP n ther
i rea onabl
ground for believing that the peril L imrnediat
and m na jog, or
the ne e sity urgent, he i ju. tified in acting upon it: and th
discov ry afterward.
that it wa false 01' erroneou
will no make
him a trespa ser. But it was not ufficient to show that he exrcised an honest judgrnen
0 prom te the public se vice;
he mu t how by proof the na ure and character of the mergency,
. uch a. he had reasonable grounds to believe it to be . . . and the
occasion uch according to the information
upon which h acted,
that private rights must for the time give way to the common and
public good.'
With peace and order re tared and the ci it go rnrnerrt functioning under normal conditions. the military or persons to whom enforcement
of measures of martial la
had been
delegated may be the subje t of criminal and ivil pr secution for
private wrongs for their acts don beyond the reasona Ie nece sit.
of the measures of mar ial law.
Limitations
The framers of our
on itution men of fore i zh . expre sly
recognized the necessity of providing for martial law powers for
the protection and preservation
of the Philippin
fr m domesti
as well a, foreign forces which hreaten its security and xistence.
J8
antos, m'prfl. note 1 a
513,
PHILIPPINE
LAW
JOUR
AL
LVOL. 45
Hov 'ever, martial law, though expre sly recognized m the
onstitution is left undefined,
The commendable practical effect of thi
cannot be overemphasized.
This i so becau e as has repeatedly
been pointed out, martial law is ba ed upon necessity. Jurisprudence
on the subject of martial reveal that most "definition'
are merely
descriptions, tentative, rather than definitive.
Besides, martial law
must b responsive t public nece itie which cannot be foreseen
in advance.
Martial 1 w is not without lin itations.
ince it is founded
upon necessity, it is the same neces ity which limit the exercise
and extent of uch power, A case to case approach must be adopted
for what may be accepted as nece sary under one et of facts may
not be acceptable as such under the same set of facts in another
context.
Aside from this apparent limitation, measures taken pursuant to martial law may be judicially reviewed.
The US Supreme
Court in Sierlisu: v. Constantine,l~ holding that while the declaration of neces: ity is conclusive the measure. employed are reviewable, said:
'It does not follow from the fact that the E:x.ecutive bas this
range of discretion, deemed to be a necessary incident to this power
to suppress disorder, that every sort of action the Governor may take,
no matter how unjustified
by the exigency or subversive of private
right and the jurisdiction
of the courts, otherwise available, is conclusively supported by mere executive fiat.
The contrary is well established,
What are the limits of military discretion and whether
or not they have been overstepped in a particular case are j'udicial
qucstiQ'/'l.8."
That the civil authorities
remain supreme and the military does
not 'superveTI
except where the civil 'authority
"has been overthrown, or is inadequate for public safety and order-" is an apparent limitation upon martial law rule. Another factor operating
as a check UP')n the acts of the military during martial law is the
rule, supported
y the g 'eater weight of authority, that the military
are criminally and civilly liable for acts performed during martial
law and that the law does not cover with its seemingly licentio g
protection unjustified and illegal act.
II.
DOE'
MARTIAL
SUSPENDED
L
W SUSPEND
BEFORE
MARTIAL
ROBLEMS
T1:IE
OURTS, OR
AW l\1AY
M
ST THE
COURTS
Rio:
E PROCLAIMED?
'The Constitution"
provides that "x x x In case of invasion,
insurrection
or rebellion or imminent danger thereof, when the
public safety requires it, he (President)
may suspend the privilege
of the writ of habeas corpus 01' place the Philippines or any part
19
20
21
SUl1ra. note 17.
Santos, supra,
ote 1 at 514.
Art. VII, eec. 10 (2).
MARTIAL
1\170J
33,
LAW
ther of under martial law. 1 h . be-quo
d provi ions contemplate varied situations for the imposition of martial law to wit:
he degree of violence invasion, insurrection
or rebellion may be
• uch a to actually cau e the closure of courts as when they are
prevented from hearing and determining
ca 0.; he degree
f viol nee. inva ion, in urrection
or rebellion may be su h tha . while
it cau e disruption in the public order and inconvenienc
upon the
court . the function
of the cou 'is ould till b dis harged ; there
may be no actual viol nee, invas ion insurr etlan or r bellion but
here i imminent danger of its occurrenc ,
With due regard to the varied situations whi h may n cessitate
the imposition of martial law it is hereby submitted that martial
law cannot be proclaimed and imposed when civil authorities
and
judicial courts are still open and capable of discharging
th ir respectiv functions.
Iartial law i
0 unfettered
in scope. bing
ba ed on necessity and so far-reaching
in effect that constitutional
right often yield to act done under the indeterminate
phra e. "f r
the public welfare and saf ty" and' for the PI' ervation and security of the State.'
But the commander-in-chief
of the armed force."
r th distri t military
mmanders cannot . ummarily . u pend or
violate civil rights according to his will. For as Justice
avis;
speaking in E« Parte Milligan22 said:
"Martial law, established on such a basis destroys every guarantee to the constitution
and effectively renders the mili ary independent of and superior to civil po.••
"er , . . Martial law cannot
arise from a threatened invasion.
The necessity must be Actual and
P?'csent: the invasion real such as Effectually
Closes the Courts and
Deposes th Civil Ad?nin'istration,"28
(Emphasis supplied),
The court went urther and expounded on th
civil over the military authorities.
Thus:
superiority
of th
"If, in foreign inva ion or civil war, the courts are actually
clo 'ed and it is impossible to administer criminal justice according
to law, then, on the theater of military operations, where war really
prevails, ther is a necessity to furnish a substitute for civil authorities, thus over-thrown to preserve the safety of the army and sovereignty. x x x Martial rule can never exist where the court are open
and in the prope?' and obsirurted
ex rci~e of thpir jt,risdict1o'l1."24
(Emphasis
upplied)
The
taternent
Ka."h(l1Iamo'eu2~
of the U
that
upr m
Court in the ca.
0
Duncan
'the phrase 'martial law' x x x wh.ile intended to author-ize ~h.e
military to act vigorously for the maintenance
of 8J.l orderly clV11
government
and for the defense of the island agams
actual. or
threater.ed invasion was not intended to authorize the supplementing0" courts by military
tribunals. '26.
"22
23
2·\
26
2(,
.1 Wall. 2 18 L. Ed. 281. 1866.
Id., a 124 127,
Ibid.
l!27
,S. 30 ,31
(1 46) ; fir) S. C . 606, !JOTJ. Ed. 688
l d. at 324.,
1946).
1'_
PHCL[PPINE
LAW
JOURN.
[VOL.. 45
rased doubts on whether the Executive, upon de Iaration of marial law, ould exercis
the power
v ted upon th
wo other
branches of gOY rnment.
The Duncan ca e involving two civilian,
Wbite and Duncan arose during the rule of martial law in Hawaii
which immediately foil wed the attack on Pearl Harbor on
ecember 7, 1941. White, a stockbroker not in any way connected with
th army, was
urged with emb zzlin r steel
belonging- to anoth r
civilian. Duncanv a ivilian t hipf'itter was arre ted 'or having
ngag d ill a brawl with wo arm d marine sentrie s a the yard
f
earl Harbor.
B th White and Duncan were tri d convicted and
committed to pri on by military tribunals - thi de, pite h fact
that .onditi us in that i land had improv d and civil ourts, while
yet not allowed t
xerci
criminal juri dicti n wer nonethele. g
allowed t di po e f am non-jur
ca es. Th significant
is, lie
in this cas r volved around h
ourc of pow r of the Governor
of Hawaii in his pro .lamation su pending the writ 0 habeas orpus
and placing th territory
under martial law - the Hawaiian Organic Act.
p n close
J'utiny}:r
the
Dud of . aid act it appear d that he
Congress did no define and limit the cop
ir the extent t which tb armed force may b u ed. In ord rirur
the r I a. e of Duncan and White. the
ourt said:
" ou rts and their procedural
safeguards
are indisp msable to our
:<yst'm of Government.
'I'hey were set up by our founders to pro ec
the lib r'
they valued.
Our system of government
clearly is the
antithesis
of total military
rule and the founders
of this country
x
x x W I' opposed t govel'nment
that place in the hand
of
10
mun 111\J power to mak
int rpret and
nforce the laws."
FOl' as this
urt has said before:
x x x x th' military
should always be kept in subjection
to the law
of the coun ry to which it belongs and that he is no friend to the
Republic who advocates
the contrary,
The e tablished
principl
of
'very free people is tho. the law shall alone govern ; and to it the
military
must always yield'. '27
Thus the Duncan case, whil not meeting. qual' Iy th i sue on th
xtent of Execut ive's pow r during martial law nevertheless
xmplified the 'open-court rule" I.e. that as long a civil court are
open and capable of discharging it functions, the creation f mili ary
tribunal. and th
upplementing by the latt l' of the functions of the
former cann t b justified.
As far a. "imminent danger" of 111vasion, insurrection or rebellion i concerned. the danger mu t not
onJy be imminent but must al 0 be publicly felt and apparent;
th
invas ion real uch a, eff ctttally cl ses the cour S2' and the court:'
must be wholly incompetent t avert th threatened
danger
r to
27
Id. at 322, 323 citiug
Dow
632 (1880).
!I SUp1'a.
note 22 a.t 124-127,
v . Johnson,
100 U.S.
168, 159; 25
. Ed.
.1970]
MART[
punish with
pirators.w
Is
adequate
THE PRESIDE
DE LARATIO
promptitude
TIAL DE'l'ERMI
OF MARTIAL
LAW
ATIO
L LAW
335
and certainty,
OF
ONCLUSIVE
ECESSITY
OR JUDI
the guilty
con-
liOR THE
IALLY REVIEW-
ABLE?
The Presiden
as commander-in-chief
of the Armed Forces of
the Philippine
possesse powers 0 broad a to virtually make him
a dictator.
Under the onstitutional powers he posse ses, the President without declaring martial law, may "call such armed force.
to prevent or suppre
lawless violence, invasion, insurrection
or
rebellion,"!" or be may in imminent danger thereof su pend the
privilege of the writ of habeas corpus or place the Philippines or
any part thereof under martial law. A corollary issue would however arise, i.e. are measures taken pursuant to martial law judi ially
reviewable?
In ca e of actual invasion, insurrection or rebellion, ther seem'
to be no difficulty nor objection on the conclu ivene
of the Pre ident' determination
of the nece sity for the declaration of martial
law. The perplexing query however come in hi determination
of
the imminence of invasion or in urrection or rebellion.
Just what
barometer, the President may utilize to draw lines in the degree
r character of circumstances
obtaining as to whether the arne i
immediate, far-fetched
remote or proximate to the imminence rest
olely upon his judgment
will or whim.
An unscrupulous
President would find relative ease in putting the entire nation under hi
control.
He has but to declare that there is imminent danger of
invasion, insurrection or rebellion, the exi tence of which necessitate
the imposition of martial law. If by mere executive fiat the existence of nece ity for the declaration of martial law is conclusive
and binding upon all including the courts, where then lies such
magniloquent platitude
a "the rule of law not the rule of men' ,
"separation of powers
"sovereignty resides" in the people"?
Such
an arrangement
is not only repugnant
to the con titutional
afeguard over civil liberties but is likewise utterly obnoxious to the
basic tenet
of democracy upon which this society, "\S it is often
claimed, was built and founded.
It is hereby submitted that the Presidential
determination
of
the existence of necessity for imposition of martial law be subject
to judicial review.
This proposition is pronouncedly put into the
29
30
Supra, note 22 at 140-141.
S·tp1'a.. note 21.
336
j'H.lLlPPl
. E LAW JO
[\ or•. -iii
R AL
fore upon a perusal of leading cases on martial Jaw in the United
States.
In Ex Part
Mill'igan,:J1 which arose during the civil war
in the
.S. a citizen of Indiana was arrested, prose uted and convicted by a military commission created pursuant to a declaration
of martial law. In Milligan s petition for a writ of habeas corpus,
the US Supreme Court took into consideration the facts that Milligan had never been a resident of any rebel state and that at he
rme of his trial, courts in Indiana were open and functioning.
Thu the court said:
"If, ir. foreign invasion or actual war, the courts are a ·tually
clos ed, and it is impossible to administer criminal justice according
to law, then in the th ater of activ military operations, wher war
really prevails, there i a necessity to furnish a ub titute for civil
authorities thu overthrown
to preserve the safety of the army and
society; and as no power is left but the military, it is allowed to
govern by martial rule until the laws can have their fre course."32
The MilIigtlJl,
'WJe impliedly
established tho pr incip e that the question of necessity for mr rtial law is judicially reviewable and ClSsertively ernpha iz d the open-court rule.
A later ca e howey l'
which seemed to have modified if not muddled the clarity of the
Milligan ruling is the case of Moyer v. Pe(Lbod1J.33 This ca e reached
the US Supreme Court in a subsequent action for damages filed
by Moyer against the Governor of Colorado.
It appeared that th
Governor had declared a court to be in a sta e of insurrection,
had
called out troops to put down the trouble and had ordered that
the plaintiff should be arrested as a leader of the outbreak, and
should be detained until he could be discharged with safety, and that
then he should be delivered to the civil authorities, to be dealt with
according to law.34 In absolving the Governor from civil liability for
damages filed by Moyer for his imprisonment
the Court peaking'
through Mr. Justice Holme said:
"It is admitted as it must be that the Governor's declaration
that a
tat
of insurrection
existed is Conclusivll
of that FU.£11.
. ..
So long as such arrests are mad in good faith and in the
honest belief that they are needed in order to h ad the insurrection
off, the Governor is the final judge and cannot be subjected to an
action after he is out of office on the ground that he had no reasonable ground for his belief ....
Public danger warrants
the substitution
of execu ive process
for judicial
process."35
(Emphasis
supplied)
A contrary
view i hereby humbly submitted.
The necessity
---------Supra, not
22.
lei. at 127.
~3 • upra., note. 10
M ](1. at 82, 83
a5 sa. at 83- 5.
31
~2
• ••
~.
I
~'.:
[';
for
..
1-970) I
'
MARTIAL
L
WI
337
the impo ition of martial Jaw do s no eXI t by and because of
mere Presidential
declaration to that effect.
The Pre idential
declaration is no bastion of infallibility that creates or a sumas
.1 non-existing
fact. On the other hand, the nece sity for the impo ition of martial law exist because the fact so warrant it the pre. idential declaration being mer Iy vi wed:l
a formality.
The practicability of this rule cannot be overemphasiz id if vi wed
in the light of the broad scope of the powers of the Pre ident a
ornmander-in-chief of he armed forces.
On this view a particular case ~,,;in point.
In the case of Sterling v. Constantine,36
the Governor of Texas, who sought to restrict production of oil
in certain areas by imposing martial law in the oil fields under
orrnal and peaceful conditions was enjoined b a three-judge court
and the Supreme
ourt on appeal from enforcing the same. Ther
was, a the district court found no actual uprising no interference
with civil authorities or courts, no evidence of violence attempted
or even threatened."
The Court, through Mr. Justic Hughes, said:
"It Does Not Follow From the Fact that the E:r;eG'Utivehas the
Range of Discretion deemed to be a necessary incident of his power
to suppress disorder, That Every Sort of Action the Governor May
Take no matter how unjustified by the exigency or subversive of private right and the jurisdiction
of the courts, otherwise
available,
Is Conclusively Supported
bll Mere Executive
Fiat: 38
Emphasis
suppli d)
BECAUSE:
"If this
xtreme position could be deemed to be well taken, it
is manifest that the fiat of a state Governor and not the Constitution of the United States
would be the supreme
law of the
land x x x x Under our system of government
such a conclusion
is obviously untenable.
There is no avenue of escape from he paramount authority
of the Federal
onsfitution.t?
The ruling in this case indicates the ambivalence of the court in
facing an issue squarely presented for its determination.
Thus,
while the court on one hand wanted to reaffirm the Milligan rule
that the judiciary has the power to review declara 'on of martial
1aw it failed to do so categorically.
On the other hand, it based
its deci ion upon the rule that while the declaration of necessity
is conclusive the measures mployed are reviewable, probably taking
into account the Moye?" case.40 When the court in this case ruled
that measures taken pursuant to martial law are subject to judicial
review it did not settle any controversy.
For the fact remain
that measures taken incident to a grant of power c n only be justi36
37
88
89
40
Supra, note 16.
gUPTa, Dote 15 at 1268.
Supra, cote 16 at 400-01.
[d. at 397.
Supra, not& 10.
,
.
"
338
PWLJPPINE
LAW JOUR
AL
lVOL. 45-
fied if it is within the bounds of such power granted. As to whether
or not it is within such power generally granted is a judicial fact.
To this there can be no dispute.
What the court overlooked is a
situation when measures were taken pur uant to martial law due
to "necessity", the existence of which however is reaconably doubtfu!. The cou t could not just by mere judicial gymnastics review
measures taken without passing upon the exi tence of the necessity.
If this rule w re strictly adhered to the situation when measures
taken pursuant to martial law we 'e declared invalid without passing
upon the existence of necessity - upon which said measures were
supposedly based - is not far-fetched,
Thi would only tend to
poil an unscrupulou
Executive who, due to this rule, could practically put th entire nation in the grip of terror and tension with
impunity.'!
If martial law were declared withou there bing a necessity
in fact for its declaration, the declaration becomes ineffectual for
it does not satisfy the existence of the conditions justifying its
imposition.
onsequently all mea ures taken pursuant to the impo ition of martial law based upon a fals n cessity would be not
only ineffectual but likewise invalid.
No alid or legal act can
pring from an invalid or illegal source.
ut these are facts upon
which the judiciary may make inquiry in a prop r case.
This
being so, the court has to pass not only upon measures taken pursuant to martial law but more so upon the xistence of fac
bearing out the necessity. F 'om all these, it may be said that the court
ha gone only as far as ruling that measure
pur uant to martial
H "Occasionally
the gOY rnor d clare
'martial
law a a trump card in
some contest with political rivals."
(55 HARV. L. REV. at 1276-77
In 1935 Govl' .OJ· Johnson
of South
'ar-olmu
r ried to j!\'t l'id of the hig-hway comrnisaioner-s
by declaring them to be insurpents - only to he re trained by the state Supreme
ourt.
(Hearon v. Calus, 17 ~.C. 381, 183 .E. 13 [19361 . Governor Quinn
of r 110(1(' Is land ~eekil\g' 1.0 lap
h ,h'ellvl\,
01
'W
onpnnr-nr
who was aleo prop.
r-itor of the
ar.ragnnsett
Ra
Track established
"martial
law" over the track
(. ec Professor
Chafee's sprighl1y
pamphlet.
STATE
HOUSEl
VE.RSUS
PENT
HOUSE
[1937-1. When
cnutor Huey Long was at war with Major Walmsby
for control of the 1 'ew Orleans police board, Governor Allen, acting from the
enator s hotel
U1tC.
oblizinzlv
called the troops a .d instituted
an extracrdmurv
l'eg-ime vhrch hp r!1'~crihl'rl by the nlliterat ive Ill" or "par :al m.u-ti al
law" (Aug. 6. 1934, N ..
Time,
p. 2 col. 6
In 1939. Governor Rivers of"
Oeorzia p oclaimed "martial
Iav
around the highwa
department
s huiltii'I(i!
as a 'device for excluding the hair-man whom he had already been enjoined for
removing. and later expanded his proclamation
to r -otcct his military
agents
from puni hment for fheir contempt - a11 of which was brought to naught
by the state sunreme COUl't (Patton v, 1\ iller. HID (;n. 105. 12:1. 152, 8 ~.E. (2d)
757, 775. 786 (HMO) and Federal distr-ict courts (Miller v . Rivers, 3 F. Supp,
540 M.D. Ga .. 1940). rev'd, 1]2 F. (Ad) 439 ( .G.A. 5th, 1940) reversed
as
moot after the governor had bowed to state decision).
'I'here ar other eases,
in which the courts refuser! to sanction martial Jaw hf'cause
here was no real
invasion
insurrection,
r-iot and 1h( t rnops WPI'f' 1d·tll,-,!lv (':JJ1erl into sf'l'vir.' fr'r
ulterior purpose.
(KinJ:!:. 'I'hr Lcg(flil-U of Mortia! Law ill Hawaii, 30
ALit'.
L. REV. 599 622, 623 (1942) d. 8>1- 8).
1970J
MARTJAL
LAW
law are not conclusive but areubject
to judicial
court can strike he tail, why not the head?
The ruling of the US Supreme
839
re iew.
Court in Martin
If the
'v. MaW2
"that the authority to decide whether the exigency has ari en,
belong exclusively to the Presid n and that his decision is conclu. ive upon all other persons"43
strong and categorical a it is, f ils however to iettle the question
at hand.
For taken in the light of the facts, circumstances
and
ystem of laws then obtaining, it is apparent that the court used
a different
approach.
First, the Matt case involved a militiaman
who had been convicted of failing to respond to a call made under
the Act of 1795 to erve during the war of 1812. Second the U
lonatitution declare that
ongress shall have the power " 0 provide for calling .forth militia x x x" and pursuant to this au hority,
the Act of 1795 has provided that whether the US shall be invaded.
or be in imminent danger of invasion
x x it hall he lawful for
the President of the United States to call forth
uch number of
the militia of the state or states most convenient to the place of
danger or scene of action, as he may judge necessary to repeal
such invasion."H
Of course, it i quite elementary that where Congress ha authorized a public officer to take some specified legislative action when in his judgment that action is necessary or appropriate to carry out the policy of Congre s, the judgment of the
officer a to the existence of facts calling for that action is not
ubjec to review.46
But the core of disagreement with these rulings
i the fact that in the Mott case. there was a delegation of legis-lative power to the President a shown by provisions of Act of
1795. On the other hand, as far as the Philippine
onstitution is
concerned, no such delegation is necessary for the President exercises the power to determine the existence of necessity through the
imposition of martial law as commander-in-chief
of the Anned
Forces of the Philippines and not because
ongress ha so authorized
him.
The same is true in the Philippine case of Buker v. Bcreelow
where he Philippine Commission merely delegated its power to the
Governor General through sec. 5 of Act of Congress of July
1902 to suspend the privilege of the writ of habeas corpus when12 Wheat. 19, 6 L, Ed. 537 (1821.
lri. at 29.
" Ibid.
45 U.S. v. Bush & Co., 310 U.S.
371, 380; 60 S. Ct. 944
(2
4:1
(1940)
46
5 Phil. 87 (1906).
84 L. Ed.
1259
s
0
PHLLIPPI
E L
'i
JO
AL
l VOL. 4:1
~\ er during such p riod the necessity for such suspen 'ion shall
exist. In thi ca e the COUl"tthrough Mr. Ju tice John on, holding that when the President or the Governor-General
with the approval of the Philippine Commission declare
that a state of rebellion, insurrection or in va ion exists, this declaration 0 conclusion
is conclu ive again t the judicial department
of the government,
said that if it were otherwi e,
"x x x then the courts may effectually
tie the hands of the
executi ve, whose special duty it is to enforce the laws and maintain order. until the invaders
have actually
ac omplished
their
porpose"47
BUT the court however, when aced by the contention that
lativ and executive branches of government might reach
conclusion or might, through a desire to oppress and harass
ple declare that a state, of rebellion in asion, insurrection,
x x x when actually and in fact no such conditions did exi
Raid:
will
" e annot. a sume that the legislative and executive
act or take any action based upon such motives.'
the legisa wrongthe peoexisted
t, timidly
branches
Thi pronouncement
of the ourt borders upon the theor tical but
overlooks human frailty and vagarie
which 0 often befog reason
and the visions of men. Court records and cases of "bogus" declarations of martial law support thi .49
It i
the very e sence of the rul of law that the executive's
ip.s dixit is not of itself conclusive of the nece sity. When a governor pr claim what may be notoriou ly fal e and proceeds to t k
measur s which only an actual extremity would justify, it is exorbitant to claim that he has uncontrolled discretion to implement
his declaration.
A con iderable number of deci ion in tate and
in inferior federal courts which went upon the theory that the
governor had a free hand, may now be practically ignored."
Proclamations
of martial law should be "regarded as the tatement of an e isting fact rather than the legal creation of a fact. "61
If this were so, the President therefore cannot by mere executiv
proclamation
create a non-existent fact.
If he does, a reasonable
leeway should be accorded the courts to pass upon it.
ongre s
"cannot authorize the executive to establish by conclusive proclamation the very thing which, upon familiar principle. would have
leI. at 94.
Id. at !l5.
49 See f.n. 41, IIUJrra.
60 Supra, note 37 at 12 2-127;].
51 SA TOS, MARTIAL LAw, NAl'mu:
49 (1970) citing WIENER, A PF.AC1:ICAL
47
4
PRINCIPLES
MANUAL
,\. D ADMINISTRATlON
OF MARTIAL LAW, 21 (t940).
&41
l!170l
been the ubject of judicial ·crutiny. '~2 Martial la,•., is eust marily
proclaimed but a proclamation
is not the operntiv
fact which establishes it. Thus, an officer may proclaim martial law until his
adj utant's mimeograph runs out of ink; but without exigency there
i no martial law.03
1'0 the contention that to ubj ct the Presidential
determination
of necessity for the imposition of martial Jaw to judicial review
would be to practically tie the hands of the commander-in-chief
to take such measures to preserve and protect the State, th following considerations
may well be taken into account:
(l)
In cases of actual invasion insurrection
or rebellion, the
Presidential pro lamation of martial law is but a mere formal statement of a fact or facts of the existence of which the public and, it
is not presumptuous to proceed the Court may well have be n apprised. In cases of actual invasion, insurrection
or rebellion, larg scale or otherwise, which effectually closes the courts who rna
till question the conclusiveness of the Presidential
declaration
of
martial Jaw? The facts speak for themselve .
(2) It is in cases of imminent danger of invasion. insurrection
r rebellion where the difficulty lies. Th imminence must be such
that although the courts are not effectually closed. y't. due to the
imminence 0 the danger, m gist.rates cannot or will not perform
their functions
based upon the higher law of self-preservation.
The courts must be wholly incompetent to avert the threatened danger or to punish with adequate promptitude and certainty the guilty
conspiratora.!'
Again the imminence of such danger may bo shown
by surrounding
facts such as preventive evacuation of inhabitants
imminent danger in the Jives of magistrates
in going to and from
their respective salas - which in the last analysis are judicial facts.
(3)
The Supreme
Court, In Bnrcelon
v. Baker
Raid:
"If the investigation
and lindings
of the President
x x x x
not conclusive and final as against
the judicial
department
x x x then ev ry officer whose DUTY it is to maintain order and
protect the lives and property of the people may refuse to act and
apply to the judicial department
x x x for another investigation
and conclusion concerning the same conditions x x x. 'r,r, (Emphasis
supplied)
are
BUT
THIS
First the court admits it is a DUTY of
order and protect live and property.
IS NOT SO.
the officer to maintain
02 Barrett
& Ferenz, Peacetime Martial Leu: in Guam, 48 CALIF. L. REV.
1 (1960) citing FAIRMA ,Law Martial Rule, 55 HARV.L. REV. 1253 1272 (1942).
511 Alley, Litigiou.s
Aftll7'math
of Martial Law 15 OKLA. L. REV. 17 18
(1962).
.
U Supra,
note 22 at 140-141.
~~ Supra. note t!6 at 93.
342
PHILIPPINE
LAW JOURNAL
[VOL. 45
econd, said officer or any member of the armed forces is governed
not by Presidential
declaration of necessity for imposition of martial law, being only one of the many phases of army activities, but
by CA o. 08 (56 - footnote) particularly section 2 thereof which
enumerates the person subject to military law. An officer therefore
who refuse. to act, it the ituation contemplated abo e, would be
guilty of the violation of said Article of War (CA 408).
1 his is
enough sanction and afeguard.
From all the foregoing discussion, one balancing consideration may ">e made:
Whatever setback the submitted
proposition
may have upon the President's
duty and equal power as Commander-in-chief
to preserve and protect the State may be counterbalanced by the equal benefit
and protection of individuals' right.
in
horn. after all, overeignty re ides.
IV.
With
of help to
may have
power to
PRO
P 0 SAL
S
the Con titutional Convention near at hand, it may b
weigh and consider the following proposals, some of which
likewise been espoused by others a far as the Presidential
declare martial law is concerned.
(1) Since the President is empowered to place the Philipines
or any part thereof under martial law, he must be required to
define limit or describe in said declaration the actual combat area
or its likelihood in cases of imminence thereof with the power to
promulgate such rules and regulations only in furtherance
of military efforts. Such rules and regulations shall have the force and
effect of law but shall in no case be deemed to suspend the operation
of ordinances, statutes and the Constitution within said area unless
so authorized by ongress,
(2) If civil courts be open in actual combat zones, all civilian'
shall be tried by said courts.
Otherwise
they can be tried by
military tribunals for the creation of which the President shall hav
been previously authorized by Congress.
(3) Martial law should not be declared by the President alone.
There must be a concurrence of three-fourths
vote of Congress if
the latter be in session.
If Congress be not in session, it shall be
with the concurrence of the Supreme Court.
(4)
The scope of the powers
of the military,
in cases when
66 An Act For
Makinc Further
And More Effectual
Provision
National Defer.se by Establishing
a System of
ilitary Justice For
Subject to Military Law.
tor the
Persons
197 I
-I RTIAL
L W
34.
martial law hall have been declared
hall only be in t'UI I erancc
of military efforts and always only in aid of the civil authorities
for the restoration or maintenance
of p a 'e and 0l'Cler.&7
5) The duration
of martial
law shall be limited by th
proclamation - setting said period of time as an objective for the
military to restore peace and order.
Any further
extension shall
be with concurrence of either
ongress or the Suprem
Court a.'
he case may be as in proposal (:3).
(6
Authorize
ongres
to pas: acts of indemnity
for the
protection of members and officers of the armed forces who had
participated in the military efforts during the rule of martial law.
(An Act or decree absolving a public officer or other per on who has
used doubtful powers or usurped an authority not belonging t him
from the technical legal penalties and liabilities therefor or from
making go d losse. incurred thereby.ps
But this shall not, howeve. be taken as a blanket
xernption from civil and criminal liabilitie of a11 a .ts done by the nembers of the military.
In proper
ca e , the court has to decide on whether or not the act or act. wer
done in fur hcrunce of rnartial law or military
fforts.
67
The Manil
6~ 1 BOWRR:'
'I'imes September SO, 1970, p. 1.
(Rawle's Revision}.
LAW DI 'I'IONARY 177