AS a result of the horrendous experience of martial law in the Philippines from 1972 to 1981, the initial reaction to the recent declaration for Mindanao was expected. People quickly assumed that the military would be in total control.
The most notable voice of reason was Chief Justice Maria Lourdes A. Sereno, who almost immediately reminded the public and members of the judiciary that the courts in Mindanao were to remain open for business. That is the way a legal and proper martial law is supposed to function. We use that term “legal and proper” because, historically, a declaration of martial law by the government was not intended to be national in scope nor for a virtually unlimited period of time.
There has always been a great difference between “military law” and “civilian law”. For example, active duty members of the US military are subject to the US Uniform Code of Military Justice. Civilian law allows a trial by a “jury of peers” or fellow citizens. The verdict in a military court comes from the presiding officer acting as judge or, if requested, a panel of three ranking officers.
The idea then for “martial law” was that law enforcement and subsequent determination of guilt would be done or would follow the procedures found in the military courts. This was only to be implemented under a particular set of circumstances. During the Peasant Revolt in 1381 in England, even then arrests were made under martial law but the trials were held in civilian courts.
The modern legal basis for the implementation of martial law is found in 14th-century England and comes from the theory or doctrine of “necessity”. Influential British attorney and judge Sir Mathew Hale wrote this in 1650 about martial law: “It is not law but something rather indulged than allowed by a law and that only in cases of necessity.” The US Supreme Court has repeatedly ruled the same way on this idea of necessity but also rejected military courts if civil courts are functioning. That is why Chief Justice Sereno made her statement.
There might be the necessity for the King of England to grant local military or civilian officials with special, expanded and increased powers during situations that could not be adequately handled by going through the normal chain of command, potentially all the way to the Throne.
In practical effect, the King was saying, “Take charge to do what you think is best. I give you my royal authority to do what you need to do until I can take charge again.” However, the US Supreme Court has specifically ruled that only Congress can suspend the writ of habeas corpus.
While the declaration of martial law is rooted in that theory of necessity, abuses of civilian rights have been rampant, including in the US, known for its strong institutions. The US Supreme Court has mixed rulings on the suspension of other rights.
However, there is one overriding legal principle found in free countries about the imposition of martial law. It may be necessary at times but it is even more necessary is to subject a declaration of martial law for the approval by the legislature.
1 comment
I am amaze why all is talking about martial law, it should be define as curfew. Military/Police was just there to ensure law and order and prevent those fanatic from causing more trouble.