The 1987 Constitution preserves the martial law powers of the President from predecessor charters in Section 18, Article VII but specifically states that Congress will remain in session and that it has the power to revoke or extend the period of martial law beyond the prescribed 60 day period. The President will have to report to Congress in person or in writing about her reasons in declaring martial law. The constitution also says that the President has the initiative to request Congress (voting jointly by a simple majority) to extend the period of martial law. Martial law also does not supplant the civil courts with military ones where civil courts can still function. The habeas corpus writ is only suspended for persons who are directly connected with invasion and rebellion, the two bases for declaring a state of martial law. The Palace also claims that the civil courts have ceased to function as judges won't issue arrest warrants to suspects in the Maguindanao massacre.
It is plain to see that there are contradictions in the way the provision is worded.
The challenge posed by legal eagles is whether a state of rebellion is indeed present in Maguindanao. The Palace claims that there is reason to believe in an imminent rebellion with the discovery of weapons stockpiles (much from AFP inventory) in Ampatuan mansions and bodegas, mounds of earth with buried weapons etc .
It seems that the public greeted the declaration with a big yawn. I think that they are indeed shocked by the scale of the Maguindanao murders and they support the declaration putting faith indeed in the check and balances of the 1987 Constitution. However a docile and subservient (ton the Palace) Congress is what worries the libertarians since it may not provide a check to the President's declaration. Since the Congress members are in campaign mode, they are hesitant it seems to convene even without a call, as the constitution requires. And also, why should Congress be beholden to the request of the President when dealing with the martial law issue?
Has the public got rid of the post EDSA 1 martial law allergy? It may be too early to tell since for many Filipinos, Maguindanao is a far off place. But if Manila was placed under martial law, people may yet develop a case of hives!
But what is really disturbing that it seems so easy for the civil courts to become non-functional with fear, thus giving more reason for the Executive to dabble with martial law. Who is to judge if the courts are non-functional? Answer: the Presidential Palace and not the independent and co-equal branch of government, the Judicature. This is something that the libertarians (some with law degrees) have glossed over even in Facebook posts.
Gloria Macapagal Arroyo's proclamation is obviously a trial balloon of sorts and may be shot in the arm. Let's see if our democratic "immune system" can produce the antibodies against dictatorship. The EDSA constitutional system however is riddled with contradictions and flaws and in itself a danger to democracy.