Martial law and the 'gag' order

After President Arroyo came up with her no permit no rally policy and her "gag" order to officials on congressional investigations, some observers feel she over-stepped the bounds of her authority. She is testing the people's temper preparatory to martial law, some said. We are heading towards a strongman rule, others complained.

Martial law? We don't believe the President is entertaining the idea. After that 14-year nightmare under the dictator from the North, she is aware, we are sure, that the Filipino can never accept another era of repression. Marcos was an aberration in Philippine democracy. His character and background conduced towards authoritarian governance. But PGMA is different. Although strong-willed, her upbringing under a libertarian former President for a father is simply antithetical to any undemocratic moves. Besides, who is the president who is not eager to leave behind a good legacy? Unless she loses her balance like what happened to the "great Ilocano," the idea of martial law is farfetched.

This is not equivalent to saying that martial law is not a possibility. Under the new Constitution a president can declare martial law given the existence of "invasion or rebellion, or when public safety requires it." But there are limitations. One, the period cannot extend beyond 60 days; two, the declaration is subject to review by Congress; three, the Supreme Court can review the factual basis of the declaration.

More important, even if martial law is declared, the Constitution continues to operate with its bill of rights and other provisions, while the civil courts and legislature go on to function as usual. Habeas corpus privilege cannot be suspended except for persons judicially charged of rebellion or crimes relative to invasion. Under these provisions, martial law is not the martial law of the Marcos vintage. Strictly speaking, it is not martial law at all but something else. Whatever you call it, it is not the kind associated with one-man rule.

The alternative to martial law is a strong-fisted governance, something akin to the exercise of political will. This is what PGMA is actually doing but the opposition are quick to censure her. Shall she look the other way while activists are creating anarchy in urban centers? Shall she keep her cool while Congress uses its investigatory power to lampoon her administration? Communist guerillas and Muslim terrorists are on the offensive and crimes are escalating. Oil prices have gone up higher than fiesta "kwitis" while the economy is bleeding as investors flee and local entrepreneurs are on a state of paralysis. Indeed, the country is in crisis and public safety is under threat. The hour therefore calls for stronger options.

Preemptive response towards anarchists is one such option. Executive order 464 is another. The decision to implement E-vat is still another. Ditto with earlier initiatives such as life-style checks, tax evasion charges, anti-corruption campaign, and lately, strict land reform law implementation.

EO 464 as expected is being opposed by legislators and lawyers alike. The argument is that the President's consent for officials to appear in congressional investigations applies only to department heads or secretaries and that lower officials, civilian or military, do not need such consent. But Malacañang's legal staff are confident they have the law on their side. What will the Supreme Court say? It will be an interesting ruling.

To the average citizen, however, the issue transcends mere bookish interpretation of the law. Surely, the President cannot just fold her hands while her own people are being brainwashed under the pretext of in aid of legislation. In the case of NSA Gonzales, for instance, the security of the state or public interest could have been compromised if he spelled out what he knew about the matter being investigated. But for standing pat to protect what he perceived as a threat to public interest, Gonzales was browbeated, then incarcerated. Shall this abuse by the Senate on a person's rights be condoned? If you were Gonzales' boss would you just close your eyes?

EO 464 may be unconstitutional legally interpreted, but viewed closely it could be a justifiable measure to prevent feisty politicians from using congressional investigations as an instrument for destabilization.