At the Capitol Hills Golf Club, I had a little discussion with Compadre Josefino (Pepe) Cenizal’s guest, the executive judge at Quezon City Hall. The judge said that he was glad that according to the text of the presidential proclamation, several specific cases were to be taken out of the civil courts—cases, for example, of subversion; of the validity, legality or constitutionality of any acts of the President pursuant to his orders, etc.
“You know, I read the U.S. Federal Constitution and went through some American cases last night,” I told the judge, “particularly the well-known Ex Parte Merryman and Ex Parte Milligan cases. The U.S. Federal Constitution hardly makes provision for a state of emergency; indeed, it is fairly strong in rejecting the concept. The U.S. Constitution simply provides that the power to suspend the privilege of the writ of habeas corpus rests exclusively with the Congress of the U.S. when, in cases of rebellion or invasion, the public safely may require it. It does not make clear whether such suspension must be limited to those areas immediately affected by the rebellion or invasion, and does not specify the agency of government that may order the suspension.”
When can martial rule be properly applied in the U.S.?
I gave the judge the gist of what I read so carefully last night:
If in the foreign invasion or civil wars the civil courts are actually closed, the U.S. Supreme Court said, and it is impossible to administer criminal justice according to law, then on the theater of actual military operations where war really prevails, there may be a necessity to furnish a substitute for the overthrown civil authority to preserve the safety of the army and society. As no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration. If the government is continued and the courts are reinstated, the continuation of martial rule would be a gross usurpation of power. Martial rule can never exist, said the court, where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Thus, in Duncan v. Kahanamoku, in 1946, the U.S. Supreme Court held that the suspension of the writ of habeas corpus and the complete supplanting of the civil courts by military tribunals in which civilians were tried for crimes by summary procedures were invalidated.
Of course, I added, the Constitution of the Philippines did not only state that the President is commander-in-chief of all armed forces of the Philippines, he was also given the power to suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. This lodges too great a power on the President, I continued without pause, we should amend the Constitution so as to lodge these powers on him only for a brief period, following which Congress should ratify his actions or the state of emergency must cease.
The good judge swallowed hard and blinked at hearing my “lecture.” Unlike the ruffians at the Con-Con, however, who chafe whenever I start perorating, he had listened quietly, patiently. How different it was, when, for example, that burly delegate, Vic Pimentel, (not Nene—he is even thinner than me) last week had stood up to complain he could not understand what I was talking about.
The naughty Leonardo (Sig) Siguion-Reyna put words into my mouth. “I know you don’t understand, Delegate Pimentel,” I had shot back, “but that I cannot help.” The son of Tarzan uttered a “bull” cry, then rushed towards me with the evident intention of breaking my bones.
But soon I was brought back to reality. “But what about all the arrests and detentions?” his Honor asked ruefully.