Monday, December 7, 2009

More on martial law

May I share with you today’s editorial of the Philippine Daily Inquirer and today’s column of constitutionalist Fr. Jose Bernas in the same newspaper dealing with the valid grounds for the declaration of martial law and the limitations thereof as imposed by Sec. 18, Art. VII (Executive) of the 1987 Constitution in relation to the definition of the felony of rebellion as provided in the Rev. Penal Code.

Please see my previous blog on the same topic discussing the aforementioned constitutional provision.

Let us discuss the congressional scenario when a joint session is convened by the Senate President and the Speaker of the House next week to act on the mandatory report of President Gloria Arroyo on her declaration of marital law in the vote-rich but violent province of Maguindanao under Proc. No. 1959.

As you know, the 250-member House of Representative is controlled by the ruling party of the President. The 24-member Philippine Senate is divided. It is thus expected that the Joint Congress would approve the proclamation (and later would even extend it to cover the elections in May 2010), notwithstanding the opposition of independent-minded senators who know their Constitution but who are very much outvoted.

Assuming that filibustering would happen during the joint session and voting would be delayed, still the proclamation would continue to take effect, there being no formal vote of congressional revocation (or an order of nullification by the Supreme Court) under the doctrine of presumption of constitutionality of laws and regularity of official acts of public officials and employees.

Even if the constitution (if later amended) would provide that the voting be done on a per-house basis, i.e., separately by each house, everything would still be a matter of political arithmetic.

The only hope that I see is for the proclamation to expire on its 60th day, as provided n the Constitution (which, however, could be extended by the Arroyo-dominated Congress).

As group of activist lawyers led by public international law professor Harry Roque of the college of law of the progressive University of the Philippines is expected to file a suit under Rule 65 (certiorari, prohibition and mandamus) in the Supreme Court this week to nullify the proclamation.

Under the Constitution, the Court has only 30 days to resolve the petition from the date of its filing.

The Court has the power to go into the factual basis of the proclamation, thus, disregarding the old political question doctrine as applied by the Supreme Court in interpreting the 1935 and 1973 Constitutions (which ex-dictator Ferdinand Marcos had exploited to the fullest to maintain himself in power from 1972 to 1986).

Let us monitor what will happen next.

The Filipino citizenry must be alert and vigilant insofar as this matter is concerned in order to avoid a barbaric and violent repetition of another dictatorship and to prevent the use of the proclamation to manipulate the national and local elections in May 2010 and to thwart the will and the voice of the Filipino people in order to perpetuate Pres. Arroyo’s lameduck presidency and political party in power.

For the Filipino people to allow a repetition of another dictatorship is the height of national stupidity and collective amnesia, in which case they deserve the painful fruits of their negative karmic action.

Meanwhile, under the Constitution, the civil courts, the Constitution, and the local governments in the province should continue to operate, despite the existence of the marital law condition therein, that is, if the soldiers and the police officers on the ground and their Malacanang handlers in Manila would respect the 1987 Philippine Constitution (to which they swore to be faithful upon their entry to government service).

That is why a free press and an independent judiciary are mandatory and indispensable to preserve the existence of a genuine democratic system.

Philippine Daily Inquirer
First Posted 00:06:00 12/07/2009

EVEN BY THE ARROYO ADMINISTRATION’S sorry record of low, mere-lip-service standards, the official justification for the imposition of martial law in the province of Maguindanao is insipid.

Two of the five “whereas clauses” of Proclamation 1959 cite the constitutional and legal basis for the declaration of martial law, but the proclamation’s factual assumptions (the other three “whereas clauses”) do not rise to the conditions implied in the Constitution and the law.

Article VII, Section 18 of the Constitution (quoted in the proclamation) provides only two primary conditions that allow for martial law: “In case of invasion or rebellion.” Those two primary conditions are further qualified: “when the public safety requires it.”

The Revised Penal Code provides that (and here is the quote from the proclamation) “the crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of ... depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”
These provisions assume either a) an actual rebellion had taken place (an actual rebellion, it bears emphasizing, that actually endangers public safety) or b) rebels or insurrectionists had actually risen publicly and taken arms against the government. None of these factual conditions enumerated in the Constitution and the Revised Penal Code have been met.

The proclamation can only assert that “heavily armed groups in the province of Maguindanao have established positions to resist government troops,” and that “the condition of peace and order in the province of Maguindanao has deteriorated to the extent that the local judicial system and other government mechanisms in the province are not functioning, thus endangering public safety.” Explaining the legal basis for the imposition of martial law in the province, the best that Justice Secretary Agnes Devanadera could do was to assert that “a rebellion was in the offing.”

As lawyer Christian Monsod, a member of the 1986 Constitutional Commission, has already pointed out, the “imminent danger” rationale for the imposition of martial law, available in the 1935 Constitution and used to devastating effect by Ferdinand Marcos, was precisely the one justification expressly excised by the framers from the 1987 Constitution. In other words, and whether Devanadera is aware of it or not, claiming that martial rule in Maguindanao is justified because of a looming rebellion is an appeal to an older, no-longer-extant Constitution.

Also, it bears noting that the Supreme Court has justifiably taken up the cudgels for the “local judicial system” that Malacañang had blithely described as defunct; after all, the first several waves of arrests related to the horrific massacre in Ampatuan, Maguindanao and the first raids on hidden armories were all undertaken with the sanction of local judges. Besides, the use of “endangered public safety” to link allegedly non-functioning courts and local governance systems to the constitutional basis for the declaration of martial law is invalid; danger to public safety is only a secondary condition. Either of the two primary conditions, invasion or rebellion, must first exist.

(We should also note that the crafting of Proclamation 1959, the first use of the commander in chief’s martial law powers in almost four decades, is sloppily executed. The quote about rising publicly and taking to arms, from the Revised Penal Code, is actually attributed to an altogether trivial law, Republic Act 6986, instead of to Act No. 3815, as amended. The same lack of respect for the letter of law marked the declaration of a state of emergency in 2006. How lightly the cares of governance weigh on the trigger-happy tacticians in the Palace.)

The lame, legally invalid justification provided by Malacañang finds an echo in the subservient, logically incoherent response offered by Speaker Prospero Nograles. Before he was forced by better lawyers to agree to a rare but constitutionally mandated joint session with the Senate tomorrow, he first said, last Saturday: “Joint session [is] needed only if Congress wants to revoke the decision. It’s not needed to go into joint session if we agree with the President.” But shouldn’t he convene the House first to find out if the country’s representatives do in fact agree with the President’s hasty, suspect imposition of martial law? Inane.


Sounding Board
What powers can the President use?
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:08:00 12/07/2009

THE MASSACRE IN MAGUINDANAO HAS presented to the administration the challenge of having to find a solution that is at the same time constitutional and effective. The incident raises the question whether the 1987 Constitution, admittedly a reactive document, has armed the government with enough powers to deal with extraordinary challenges to peace and order and the protection of human lives.

I believe that the government will have to look for the solution to the problem within the parameters of the President’s commander in chief powers. These consist of three powers of graduated intensity: to call on the Armed Forces to suppress lawless violence or rebellion; to suspend the privilege of the writ with respect to specific crimes; and to impose martial law over the Philippines or over any part thereof.
Of these the most easily available is the power to call on the Armed Forces. But I am not surprised that the President has chosen the martial law option together with the suspension of the privilege of the writ. Who can reverse the President?

The Supreme Court can, so the new Constitution says. Martial law must be premised on the existence of public necessity brought about by actual rebellion or invasion.

Hence the question that must be asked is whether rebellion exists. And what is rebellion?

The Penal Code says: “The crime of rebellion ... is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

If the Penal Code is to be followed, the government would have to show that what is happening now satisfies the definition of rebellion as a criminal act. A crucial fact to verify would be whether there has been and there is an ongoing “rising publicly and taking arms against the Government” to achieve at least one of the enumerated goals.

But is rebellion as a criminal act defined in the Penal Code the same as rebellion for constitutional law purposes? My view is that it is not. My view is that the requirement of “rebellion” for purposes of constitutional law is satisfied if there exists an armed force whose activities have the effect of preventing the government from implementing its laws in any part of the Philippines.

Aside from the Supreme Court, Congress can also revoke the presidential proclamation by a majority vote of all the members of Congress in joint session assembled voting jointly.

But even if the requirement of rebellion is verified and thereafter martial law is declared in the lawless areas, the government will still have to contend with the safeguards introduced by the 1987 Constitution. These are safeguards inspired by the nation’s experience under martial rule. The 1987 Constitution now says: “A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.”

As for the suspension of the privilege of the writ, it can only be justified by the existence of the same factual situation that can justify martial rule. Moreover, suspension of the privilege has also been subjected to limitations by the 1987 Constitution which now says: “The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

A conclusion that can be drawn from all these is that the 1987 Constitution manifests great reluctance to allow the activation of martial law powers and of the power to suspend the privilege of the writ.

But it is not as if the Constitution has tied the hands of government in the face of lawlessness of the magnitude of the Maguindanao massacre and the political culture that has given rise to it. The commander in chief still has the ordinary executive power and the extraordinary power to call on the Armed Forces to suppress lawlessness.

The power to utilize the help of the Armed Forces is available now. Clearly, there has been lawless violence. Moreover, indications are that the threat of more lawless violence exists.

Recent jurisprudence, however, has clarified that, although the President can call on the help of the Armed Forces to accomplish what is essentially the peace and order task of the National Police, the act of calling on the Armed Forces gives her no new powers for carrying out law enforcement. For instance, it gives her no power to make arrests without warrant except in those instances where warrantless arrests are allowed. Nevertheless, the “calling out” power, in the hands of a skillful President, is still a potent weapon.

To fully utilize this power, however, she will need determined political will and the vigorous cooperation of the judiciary. Unfortunately, there seem to be reports that the government is desperately in search of judges who have the courage to issue warrants and prosecutors who can act where needed even in the face of threats to them or their loved ones.

In the face of all this, the President has chosen the martial law option. I do not see either the Supreme Court or Congress revoking her decision now. Moreover, if she asks for it, Congress can extend martial law beyond 60 days.

Meanwhile the nation will be watching how she exercises the flexible martial law powers which, as experience tells us, can easily be abused.