Even by Philippine standards, the past week has been a tumultuous one. Militants linked to Islamic State fought security forces in the Islamic City of Marawi, President Duterte cut short a state visit to Russia and declared Martial Law in Mindanao, and peace negotiations with the Communist insurgents seem on the verge of breakdown. ‘Martial Law’ in the Philippines is now guided by the 1987 Constitution that was crafted after the 1986 overthrow of former president Ferdinand Marcos, who had declared Martial Law in 1972.

It’s worth reiterating here the current constitutional provisions on Martial Law, which—while allowing it in the case of invasion or rebellion—are meant to avoid the unfortunate experience of the past:

  • It is for 60 days (any extension requires Congressional approval);
  • Any citizen can bring to the Supreme Court a case questioning the factual basis of the declaration;
  • Section 18 of Article VII of the 1987 Constitution is explicit that Martial Law does not supplant the rest of the government:

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 […] The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

The Memorandum from the Department of Defense about the implementation reiterated this Constitutional provision and reminded the Armed Forces of the Philippines that in Mindanao ‘the rule of law and human rights should prevail’.

Due to parliamentary arithmetic, one particular restriction introduced in 1987 is not relevant at this moment. Congress can revoke Martial Law by a majority vote, but the voting is by both houses jointly; that is, the 24-member Senate (elected nationally) and the 297-member House of Representatives (elected by district and from party lists). Since virtually all representatives are currently part of the Duterte administration’s ‘supermajority’ there is no chance that Martial Law will be revoked, so no joint session will be convened.

From the beginning of Duterte’s national prominence, part of his strongman image has included talk of Martial Law. Even before he was a declared candidate for president, he talked of instituting a ‘revolutionary’ government to ensure reforms. This echoes the rhetoric in the early 1970s by Ferdinand Marcos, when he characterised his Martial Law project as ‘Revolution from the Center’. Duterte’s admiration is explicit: as he remarked, ‘Marcos was excellent. He was able to run his government. He was obeyed. Unlike now, you are not being followed. Each one has their own style of plundering … you cannot do that under my term’.

Given Duterte’s tough rhetoric, fears of Martial Law were raised in the 2016 presidential campaign. For instance, In January 2016, he said that he might be compelled if there was a conflict with the legislature about the budget: ‘If you threaten me with impeachment and create a constitutional crisis, I will be forced to declare a revolutionary government’. However, later in the campaign he denied thinking about Martial Law, since rebellion wasn’t widespread enough to necessitate it.

He reiterated the denial in July after his accession into office, but then raised the possibility later in the month when Supreme Court Chief Justice Maria Lourdes Sereno insisted that arrest warrants be issued for any judges on Duterte’s infamous list of persons involved in the drug trade. ‘If this continues, (that) you’re trying to stop me, I might lose my cool. Or would you rather I declare martial law?’ (In this rare instance, he apologised for his harsh words.)

Since that time, Duterte has been mentioning Martial Law practically every month: sometimes due to his famous war against drugs, and sometimes to boost his efforts against terrorism and kidnapping in the southern Philippines. This on-again, off-again technique is reminiscent of his ‘will he or won’t he’ preliminary campaign for president. At the beginning of 2015, more than year before the election, a ‘Listening Tour of Mayor Rody Roa Duterte to promote Federalism’ had begun. As he travelled the country with events highlighting federalism (without much specificity as to details), the Facebook page of the ‘operations centre’ posted pictures beginning in January of banners calling for him to run. As early as February he was saying that he might run ‘to save the republic’, but generally he insisted he was only the spokesman for those promoting federalism. For almost the entirety of 2015 this ‘will he or won’t he’ discourse continued, conveniently keeping the Duterte possibility in the headlines and allowing him to gauge support. At the very last possible moment, on 8 December 2015, he filed a certificate of candidacy.

It must be said that the discussion of the need for Martial Law does indeed go beyond the president and his administration. In fact, in early March the ‘Save Sulu Movement’ urged Martial Law in several municipalities of Sulu, which is where Abu Sayyaf kidnappers are based. An argument can certainly be made that failings in governance are allowing the Abu Sayyaf to continue their activities despite efforts of government security forces against them. Unsurprisingly the ‘Save Sulu Movement’ has endorsed the President’s declaration of Martial Law but urges him to disarm the private armed groups linked to local politicians. Even former President Benigno Aquino III (Duterte’s predecessor) considered Martial Law for Sulu, but concluded such a move might do more harm than good.

Now, the events of the past week have made it clear that there is rebellion related to the Islamic State in Marawi and surrounding areas—but why was Martial Law declared in all of Mindanao? For the Zamboanga siege in 2013, where 5 barangays were razed to the ground and more than 100,000 people displaced, no declaration of Martial Law was deemed necessary. And in 2009, when, in the aftermath of the Maguindanao massacre there was a total governance and police vacuum, Martial Law was declared but lifted after only nine days amid congressional debate.

As noted, consideration has been given to Martial Law in the Sulu Archipelago as well as in the Lanao area, and the Bangsamoro Islamic Freedom Fighters are active in Maguindanao and North Cotabato. An argument could be made about violent extremist activity in Sultan Kudarat, and kidnappings and bombings have reached Davao City and Cagayan de Oro. But the entire Mindanao region?

On the day Martial Law was announced, Defense Secretary Delfin Lorenzana said that Mindanao was placed under Martial Law ‘because there are also problems in Zamboanga, Sulu, Tawi-tawi, and also in Central Mindanao in the BIFF (Bangsamoro Islamic Freedom Fighters) area. We also have problems in the Region 11 [around Davao City], the extortion activities of the New People’s Army. The President has been telling this before that if he declares Martial Law, he will end all problems’. Certainly, some two-thirds of incidents connected to the communist insurgency happen in Mindanao, so that the entire island region could be said to be subject to an insurrection.

However, the Martial Law proclamation itself did not mention the communist rebellion, and Lorenzana himself later had to say he was not consulted on the declaration, and that Martial Law was not aimed at the communists. In the event, the Communist Party ordered the New People’s Army to launch offensives to resist Martial Law. The government objected to this declaration, and peace talks scheduled for May 27–June 2 in Oslo were suspended.

Rather than look for an evidentiary basis for the imposition of Martial Law over the entire region of Mindanao, sceptics and opponents of the president assert that we are witnessing a ‘beta test’ for authoritarianism, or a creeping attack on Philippine democracy. As we have noted, the approach Duterte has taken to the question of Martial Law has resembled his approach to the presidency—to raise the issue tentatively and progressively, to see what the reaction to his initiatives is.

The president himself has said that no one can stop him from implementing Martial Law, and that he would not pay attention to the restrictions coming from Congress or the Supreme Court that are provided for under the constitution. Members of his administration have walked back these comments, as they have so often done in the past year. They had to perform a similar duty about his comments that he would take the fall if soldiers raped women—by saying that the remark was just ‘heightened bravado’. Given the reality that has transpired from his rhetoric about the drug menace, the possibility of a more wide reaching imposition of restrictions redolent of a more authoritarian Martial Law must be closely monitored.

A particular issue has been evaded—that this declaration has been in response to the assertiveness of Muslim violent extremism. That aspect will be tackled in the next blog.

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This post is published in conjunction with InAsia, a blog of weekly analysis and insight hosted by the Asia Foundation.

Dr Steven Rood is a Distinguished Visitor at the Department of Political and Social Change in the Australian National University’s Coral Bell School of Asia Pacific Affairs and The Asia Foundation’s former country representative in the Philippines. He tweets at @StevenRoodPH.

Header image: President Rodrigo Duterte meets with Philippine armed services members in late 2016. Via Wikimedia Commons.