The legal argument against martial law

Oscar Franklin Tan

Who sends Tyrion Lannister to a sword fight and Jaime Lannister to a negotiating table? Sadly, this is what the most vocal legal critics of martial law have done in the past 18 months.

Martial law is our most formidable emergency power. Deploying it merits serious political and legal questions.

The political asks: Is martial law correct? The legal asks a more basic question: Is it even permitted given the facts?

Law sets minimums but cannot decide for us.

How confused has the legal debate been?

Initially, for example, critics argued a president may not declare martial law if not recommended by his defense secretary.

No judge could accept this. Our Constitution has no such requirement and it is illogical because a president may overrule or even replace his defense secretary any time.

Sensible legal advocates frame:

1. What actual powers does martial law grant?

2. How has martial law actually been used since May 23, 2017?

3. What military plans for 2019 cannot be pursued without martial law?

Visualize the Marawi siege.

At its height, Mayor Majul Gandamra and policemen barricaded themselves in Marawi’s City Hall, preventing the Islamic State flag from being flown there. City hall reopened days later, although it was too dangerous for staff to come to work daily.

This is the extreme scenario martial law solves. With the mayor fighting for his life and other officials dead or in hiding, martial law empowers a general to intervene and restore government.

But this picture equally demonstrates when martial law is irrelevant.

If no bullets are flying and City Hall is open, what does martial law authorize the general to do that he cannot normally do? Remember, the military already has broad powers, to match its broad responsibilities.

Article VII, Section 18 of our Constitution primarily requires an “actual” — this is the technical legal term, contrasted with threatened or imminent — rebellion to declare martial law.

Our Supreme Court’s Lagman decision, in February 2018, allowed a second martial law extension. It accepted that an “actual” rebellion tried to remove territory from the government. The military is still chasing rebels across Mindanao as they try to regroup, recruit new members and restart the fighting.

How does one dissect planned action in 2019 in a legal context?

If the plan is for a general to run Marawi due to a new attack, this may meet Article VII, Section 18.

But if the plan is to chase rebels into mountains and swamps, troops may be transferred to Mindanao under normal powers. And generals do not need to temporarily take control of mountains and swamps from civilian leaders.

If the plan is to step up intelligence and counter terrorist recruitment, the military is also already authorized. And only new legislation, not martial law, would give them additional budgets and new legal tools for intelligence.

If the plan is to improve peace and order and scour the countryside for loose firearms, then this is a job for police, not the military. Peace and order is a civilian task and the police is a civilian agency.

Remember, the military may be deployed to assist police under normal powers, without martial law, as they are to help build roads in remote areas and rescue flood victims.

One concludes martial law is the wrong legal tool to achieve many military goals, as opposed to new legislation, increased budgets and troop redeployments. It is thus crucial to set politics and egos aside and have the separate legal debate free
of drama.

The goal must be to deploy the best legal tools to allow our soldiers to complete their mission safely and allow Marawi to rebuild with dignity.

Further, we have an obligation to the next generation to document how the new martial law was implemented in fidelity to our Constitution.

But we must understand the difference between political and legal arguments, as we do the difference between standing beside Tyrion and beside Jaime in a sword fight.

upsilon upset

read Destroying a myth by domini torrevillas.  i’m not sure what myth is being destroyed.  perhaps the myth that upsilon is still the best?

I’m still savoring the taste and mirth of the recently concluded successful 100th year celebration of Upsilon Sigma Phi which was attended by more than half of the entire membership of the fraternity from all over the world.  But alas, even before the last lights were turned off or before the last hurrah was said,  a dark sinister  move was ensuing.  A private online chat of  two or three of the newly minted student Upsilonians, still not fully socialized to the fraternity ways and traditions, was maliciously hacked and thrown open for everybody to read in cyber space. Admittedly the contents of the chat are horrible, reprehensible and condemnable: misogynistic views, racial slurs, anti Muslim, anti gays and lesbians. Even the resident Upsilonians were shocked and angry that such kind of behavior or thinking exists in the fraternity.  They immediately condemned the abhorrent conversation and asked for disciplinary actions.

The Diliman head of Upsilon known as Illustrious Fellow, Girard Sirios, was understandably upset.  Considering that this chat was hacked and considering further that this is an era of fake news, he wanted to ferret out the truth himself. Has the conversation been enhanced or made to appear worse than what it was? For him every member is precious and he is not about to throw the student brods to the angry crowd crying for blood. If all were said and correctly quoted, they should be answerable  for their acts. But this would be glorifying the hacker who committed the criminal act and whose aim is to destroy or malign Upsilon, which the Illustrious Fellow vowed to protect.  On another thought,  can anyone be so angry at the whole world or is this a case of mental disorder?

medyo convoluted.  but let me pick it apart.  so.  is illustrious fellow girard sirios investigating it at all?  tatlo nga lang bang mga bagets ang involved?  incorrectly quoted ba sila o correctly, as in, walang labis walang kulang?  i hear the thread started in march and that periodically it would turn evil.  i hear also that some senior brods were part of the thread.  why did they allow it to go on?

Maria Jovita Zárate may part nga sa chat na may sumaling senior brod. “mga brod, kung may kailangan kayo nasa Quezon Hall lang ako…” most incriminating. identified na yata kung sino yun. official family of Pres Concepcion who is an upsilonian.

Stuart Santiago  they are complicit then.

they should all be expelled from the frat, at the very least.  they should all be expelled from UP, at the very best.

Carol P Araullo Simple lang naman. Identify the ones who posted, expel them from UP and if the Upsilon really wants to recover its credibility, expel them from the frat. Upsilon should make a public statement acknowledging the grievous infraction of every principle UP holds dear, (in fact, of everything a decent, sensible, respectful human being should uphold), apologize to the individuals, groups and sectors maligned and threatened, and GROVEL for understanding and forgiveness by their victims and the UP community at large.

yes, *GROVEL*

but but but.  the upsilon thinking, if we are to take it from torrevillas, is that if guilty, the culprits should indeed be “answerable,” EXCEPT THAT, that daw would be “glorifying the hacker who committed the criminal act and whose aim is to destroy or malign Upsilon, which the Illustrious Fellow vowed to protect.”

so: hacking is a crime, and that’s the only wrong that needs righting, the only sin that needs punishing?  but the original sin was that horrible online chat.  for all we know it was exposed, not by a rival frat hacker with intent to take down upsilon, but by a lonsi lurker with intent to rock the boat and rid the frat of these dregs.

besides, mr illustrious fellow, can protecting upsilon, and being complicit in that offensive drivel, be more correct and appropriate and honorable than standing up for the women, muslims, lgbtqs, lumad, and the memory of cory and ninoy that your boys felt free to demean insult malign just because they thought no one was listening except like-minded brods?  that’s the message upsilon is sending, guys, in case hindi niyo alam.

“On another thought,  can anyone be so angry at the whole world or is this a case of mental disorder?”

again i’m not sure.  who’s torrevillas referring to: the bad boys of upsilon or the hacker?  pero gusto ko yung “is this a case of mental disorder?”  umabot talaga tayo sa mental disorder as a defense?  parang puwede mag-plead ng insanity?  mygad.  why not.  yung tipong psychotic na split personality.  which might also explain why their values are a mess.

read men sta. ana’s Upsilon’s progressive legacy (or why Upsilon should not be associated with Marcos)

During the course of its centennial celebration, the fraternity, which takes pride in striving for leadership, has not given any public recognition to Marcos, the only Philippine president it can claim. Wenceslao Q. Vinzons, a fighter for independence, and a true war hero (unlike Marcos who had to burnish his reputation with fake medals), has become Upsilon’s model. The fraternity has likewise honored fellows — the living and the dead — for their significant contributions in different fields and disciplines. But Marcos is excluded. (Other Upsilonian politicians, even the good ones like Ninoy Aquino, have likewise been excluded from receiving recognition during the centennial celebration. Perhaps, this is the tradeoff to prevent Marcos from being recognized.)

imagine.  wenceslao vinzons as model.  ninoy aquino not good enough, guys?  or maybe too recent?  lol.  but seriously, what is so great about a fraternity that won’t can’t stand up for what is right because for the longest time, marcos and government connections came first.  where was brotherhood nang ikulong ni big brod marcos si kid brod ninoy nang mahigit pitong taon.  what does it say about the frat that to this day refuses to acknowledge ninoy aquino as hero.  marcos loyalists still rule?

Maria Jovita Zárate for teachers of the social sciences and cultural studies, that long thread spanning the months of March to November is a fecund material for some intense close reading, a discourse analysis that might just unpack the web of power relations—frat and university community, frat and special sectors of that community, senior brod and junior brod, brods within Quezon hall and outside of Quez Hall. As a teacher I would grab that opportunity as a teachable moment, and probably end with a walk-through in the academic oval where the “illustrious” history of the organization is represented in those kitschy tarps.

“illustrious” my foot.  upsilon has long lost its glow.  about time for a case study: of upsilon’s rise and fall.

Bonifacio: ‘Fear history’

Andres Bonifacio’s letters that have come out of the woodwork have rekindled popular interest in the hero, who left us only with a faded photograph and a small collection of writings, and all to the good.

His letter to Emilio Jacinto on April 24, 1897, one of the three original letters that came from the collection of Epifanio de los Santos and were auctioned in March, reads like a page from a whodunit novel, both riveting and unsettling.

Read on…

ninoy aquino on my blog

on ninoy’s 86th birthday, sharing some posts over 10 years of blogging about a beloved hero.  those who continue to say that if he had not been assassinated he would have turned out to be just another traditional politician… they are wrong.  read nick joaquin’s The Aquinos of Tarlac: An Essay of History As Three Generations (1983).  ninoy was coming from somewhere else, and he had a vision for nation.  unfortunately, as it turned out, cory the cojuangco could only do so much (to put it kindly).

in defense of ninoy 
joma sison, plaza miranda, ninoy aquino
noise barrage 1978: first People Power show 
Carmen Guerrero Nakpil on the death of Ninoy Aquino
ninoy and the hacienda
Ninoy Aquino and the Rise of People Power
ninoy’s LP would have welcomed satur and liza 
beyond conspiracy: ninoy’s politics 
ninoy’s politics: “Three Generations” 
ninoy’s politics: “The Filipino As Dissident” 
ninoy’s politics: “A Christian Democratic Vision” 
ninoy’s politics: “Manifesto for a Free Society”
ninoy, 21 August 83  
ninoy’s killers (updated)