Mark Xavier C.

Libardo
2011-40384
IGLR Short Essay

Should the Power to Declare Martial Law be removed from the Constitution?

No, the power to declare martial law must not be removed from the Constitution.
Declaration of martial law has traditionally been an important emergency power; a tool
that must be available for the President to use if only in the most extreme of
circumstances (i.e. actual invasion or rebellion), in order to protect public safety. 1 As
explained in the case of Lagman vs Executive Secretary Medialdea2, martial law in its
traditional concept has reference to the theater of war. In a theater of war, civil courts
and other government institutions are unable to function, and thus, it may be necessary
for military courts to exercise jurisdiction even over civilians. Without this power, it would
be difficult if not impossible to preserve social order in the event of a breakdown of
civilian government.
Given its current phrasing in the Constitution however, there is some ambiguity in
the nature of this power. It was made clear by the Supreme Court in the Lagman
decision that the power to declare martial law is separate and distinct from the
President’s calling out powers, and from the power to suspend the privilege of the writ of
habeas corpus. Although the 1987 Constitution sets out the limitations of such a
declaration (e.g. that a state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of civil courts or legislative assemblies), it
does little to actually define what additional powers it grants the President. Imposing
such limitations is important in preventing the repetition of various human rights abuses
that have historically plagued the exercise of martial law powers. But it is high time to
define with even more particularity the scope and extent of such a power, to guide the
President in its responsible exercise should the need ever arise, and to guide the Court
in reviewing the same.

1
CONSTI, Art. VII, Sec. 18.
2
G.R. Nos 236158, 231771, and 231774, July 4, 2017.