Thursday, December 10, 2009

Since when do you need martial law just to enforce the full force of the law?

When you're in the Philippines, of course! In response to the recent political killings in Maguindanao, in southern Mindanao, President Arroyo has declared martial law in the province. The Arroyo administration cited the threat of rebellion and already charged 24 people with the charge of rebellion, including members of the politically powerful Ampatuan clan. However, Human Rights Commissioner Leila de Lima, whom  human rights activists consider a powerful advocate for their cause, has called martial law unnecessary and unjustified. In an interview with BBC, she asked the poignant question: "Our question is - since when do you need martial law just to enforce the full force of the law?"

That is actually a very difficult question to answer. I'm not steeped in the literature of martial law, but I do have a few comments. First, it is important to distinguish between martial law imposed according to constitutional authority, as opposed to extraconstitutional imposition of military rule (Burma being the best example). The Philippines Constitution is no outlier in allowing the president to declare martial law. According to Tom Ginsburg's Comparative Constitutions Project, over 80% of constitutions have some provisions allowing the government to impose a state of emergency.

Second, in terms of impact, there is a significant difference between constitutional and unconstitutional martial law. The debate isn't fully settled, but it seems that, when governments follow all of the necessary procedural guarantees, constitutional martial law poses less threat to the rule of law generally. However, it's certainly a field in which I'd like to see more research, particularly because Burma's new constitutional has complex procedures allowing the Commander in Chief and a committee of senior leaders to declare a state of emergency.

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