Saturday, December 12, 2009

PGMA's Martial Law

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 sixty days.

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

7 December 2009

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