Martial Law in Maguindanao: A Commentary on Proclamation No. 1959

“Learning is always rebellion...
Every bit of new truth discovered is revolutionary
to what was believed before.”
- Margaret Lee Runbeck

Even with the lifting of martial law in Maguindanao, the Supreme Court should rule on the constitutionality of Proclamation 1959.[1] According to the Constitution,[2] “the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.” Petitions are now pending before the High Court, and the cases should not be considered moot and academic. The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.[3] Clearly, the issue on martial law involves paramount public interest.

To avoid any repetition in the future, there is therefore a need to determine the sufficiency of the factual basis of the proclamation of martial law in Maguindanao. The Constitution provides that the President can place the Philippines or any part thereof under martial law in case of invasion or rebellion, when the public safety requires it.[4] Thus, martial law depends on two factual bases: (1) the existence of invasion or rebellion, and (2) the requirements of public safety.[5]

Public Safety

It is without any doubt that the recent events in Maguindanao involved public safety. The massacre of 57 people, including 30 journalists, last November 23,[6] has caused some chaos in the province. Intelligence reports say that supporters of the Ampatuan clan, who are suspects to the killings, have been massing up armed men to block government from enforcing the law.

The Maguindanao Massacre is considered the worst election-related violence in the country’s history.[7] Indeed, the province has been at the center of several election-related political controversies in the past. In 2004, a person believed to be Comelec commissioner Virgilio Garcillano, in the controversial “Hello Garci” recordings, was heard saying that Maguindanao would not be “much of a problem” for President Arroyo. This turned out to be prophetic as Arroyo won handsomely in the province over opponent Fernando Poe Jr., who even obtained a statistically-improbable 0 votes in some of the municipalities in the province.[8] In 2007, the administration party-backed coalition’s senatorial candidates swept their counterparts in the opposition, 12-0.[9] Again, some opposition candidates got statistically-improbable 0 votes.

It may thus be argued that politics may be the root of all these election-related violence. The Ampatuans, like most political clans in Mindanao, are said to have their own private army numbering to the thousands and these men are ready to serve and protect the interests of the Ampatuans. According to the Commission on Human Rights, at least 200 other people have been killed by the private army.[10] Reports also say that the Ampatuan private army has sought the help of the Moro-Islamic Liberation Front (MILF),[11] an Islamic military group claiming belligerency against the Government of the Philippines. Indeed, the Maguindanao massacre has caused some serious concerns regarding public safety in that area.

Invasion or Rebellion

Having established that the “public safety” requirement has been met, the more highly-debated issue is with regard whether or not there existed an invasion or rebellion. Invasion is not defined by any existing law in the Philippines. However, Bouvier’s Law Dictionary[12] defines invasion as “the entry of a country by a public enemy, making war.” It is clear that invasion cannot be said to have existed in Maguindanao or in any part of the country for that matter.

On the other hand, rebellion can be found in the Revised Penal Code[13] and 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.[14] Rebellion has always been understood to be a crime of masses and a vast movement of men seeking to change the established order.[15]

Supporters of martial law have argued that the rebellion contemplated as a basis to declare martial is not the kind of rebellion as defined by the Revised Penal Code. According to Rep. Teodoro Locsin, “rebellion here is not an exclusive reference to a particular provision of a particular law; but to a wide yet unmistakable, general but not indiscriminate allusion to a state of affairs that has deteriorated beyond lawless violence, beyond a state of emergency, to an obstinate refusal to discharge properly the functions of civil government in the area, by, of all people, the duly constituted but now obstructive authorities therein.”[16] Even highly-regarded constitutionalist Fr. Joaquin Bernas opines that rebellion as a criminal act defined in the Penal Code is not the same as rebellion for constitutional law purposes. He says 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.”[17]

This author begs to disagree. While it is true that the Revised Penal Code does not defined “invasion”, it does not mean that the same should not be used as a basis to define “rebellion.” Constitutional law and criminal law may be two different subjects, but clearly principles of these two, just like other fields of law, often intertwine. It is not uncommon for legal terms to appear in both the 1987 Philippine Constitution and the Revised Penal Code and reference to both should be made for a more thorough understanding on the subject. For example, the term reclusion perpetua is used several times in the Constitution.[18] Under, Article III, Section 13, “all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable xxx.” Nowhere in the Constitution does it define reclusion perpetua. However, Article 27 of the Revised Penal Code does.[19] Does the Constitution then refer to another definition other than that of the Revised Penal Code? I don’t think so.

Furthermore, Proclamation No. 1959 itself, refers to R.A. No. 6968 (albeit erroneously cited as R.A. No. 6986[20] – another Malacañang blunder), the amendatory law of the Revised Penal Code provision on rebellion. The third whereas clause in the proclamation states that “the crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of xxx depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

Thus, it is now high time to determine whether rebellion really existed in Maguindanao. Based on the deliberations of the Constitutional Commission, the rebellion contemplated in Article VII, Section 18 is actual rebellion,[21] not just imminent. This is a result of the fear in the minds of Filipinos that the Marcos’ martial law might repeat itself in the future.

In a press briefing held at Malacañang, DOJ Secretary Agnes Devanadera said that a rebellion was “looming” in Maguindanao.[22] A looming rebellion is most definitely not an actual rebellion. Maj. Gen. Gaudencio Pangilinan, AFP deputy chief of staff for operations, said that there were indications that violence is imminent.[23] Again, an imminent rebellion is not an actual rebellion. Finally, Executive Secretary Eduardo Ermita conceded there was no actual rebellion saying that “there was no actual rebellion going on but all indications on the ground indicated inability of authorities to undertake their duties.”[24]

To make it clear, the massing up of armed groups is not actual rebellion. There is no actual uprising or taking up of arms against the government. Another whereas clause in Proclamation No. 1959 states that “heavily armed groups in the province of Maguindanao have established positions to resist government troops.” It cannot be said how the positioning of these armed groups constitute actual rebellion. To resist means to defend against. Thus, the armed groups were clearly not on the offensive, which is indicative of an actual rebellion. It could very well be said that they were in a defensive position.

Nevertheless, Devanadera and Ermita both referred to the absence of local court justices who have the power to issue search warrants or warrants of arrest that the military could use in their local operations against the perpetrators of the Maguindanao massacre as an indication that the duly-constituted authorities have been deprived of their powers or prerogatives.[25] The Proclamation stated that “local judicial system and other government mechanisms in the province are not functioning.” However, these were quickly refuted by Supreme Court spokesman Midas Marquez who said that the statement “that the judicial system in Maguindanao is not working” was inaccurate. He added that six search warrants have already been issued and served and the trial court is still studying other applications even on weekends.[26] Furthermore, this author opines that based on the wording of Article 134 of the Revised Penal Code, as amended by R.A. 6968, unlike the Chief Executive or the Legislature, there is no mention of the judiciary in the phrase ending “xxx wholly or partially, of any of their powers or prerogatives.”

Conclusion

It is this author’s belief that the declaration of martial law in Maguindanao is without sufficient legal basis. While the Maguindanao Massacre should be condemned, declaring martial law is clearly an overkill and overreaction. The calling-out of the Armed Forces, without any declaration of martial law, would have been more than enough to handle the violence in Maguindanao.[27]

Rumors and fears that the whole martial law incident is just a part of a grand conspiracy to help the Ampatuans is understandable, considering that the suspects are known political allies of the President, and were vital in assuring her re-election in 2004 and that of her candidates in 2007.

Some believe that the government and prosecutors are deliberately bungling the case against the Ampatuans. The charges of rebellion could absorb the crime of murder. Because of the government’s insistence that rebellion was taking place, the Ampatuans can claim that the massacre was in furtherance of the rebellion.[28] It must be pointed out that rebellion is a political crime which carries lesser punishment than the capital offense of multiple murder. Even worse, rebellion can even be subject of a government amnesty or pardon.[29]

At any rate, it is therefore prayed that the Supreme Court, as the last bulwark of democracy, declare the unconstitutionality of Proclamation No. 1959. This ensures that a repeat of an invalid declaration of martial law would not happen in the future.

________________

Footnotes:

[1] Proclaiming a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Province of Maguindanao, except for certain areas.
[2] Article VI, Section 18, 1987 Philippine Constitution.
[3] David vs. Arroyo, G.R. No. 171396, May 3, 2006. The SC held that PGMA’s issuance of PP 1021 (revoking PP 1017, which declared a “State of National Emergency”) did not render the petitions assailing PP 1017 moot and academic.
[4] Supra note 2.
[5] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 872.
[6] Jeannette Andrade, “Press groups condemn Maguindanao massacre”, Philippine Daily Inquirer, November 24, 2009.
[7] Veronica Uy,“UN chief, envoys condemn ‘brutal’ Maguindanao massacre”, Philippine Daily Inquirer, November 26, 2009.
[8] Jaileen F. Jimeno, Amid the fighting, the clan rules in Maguindanao, Philippine Center for Investigative Journalism (PCIJ), available at http://pcij.org/stories/amid-the-fighting-the-clan-rules-in-maguindanao/.
[9] Maguindanao goes 12-0 for TU senatorial bets, GMANews.tv, available at http://www.gmanews.tv/story/42743/TU-senatorial-bets-go-12-0-in-Maguindanao-Chavit-is-no-1.
[10] Richard Lloyd Parry, Philippines massacre army 'killed 200 others', Times Online, available at http://www.timesonline.co.uk/tol/news/world/asia/article6949639.ece.
[11] Ampatuan private army seeking help from MILF , Philippine Star, available at http://www.philstar.com/Article.aspx?articleId=530283&publicationSubCategoryId=200.
[12]Revised 6th Ed (1856).
[13] Act No. 3815.
[14] Article 134, Revised Penal Code, as amended by R.A. 6968, October 24, 1990.
[15] Florenz D. Regalado, Criminal Law Conspectus, Revised Edition, page 317
[16] Gil C. Cabacungan, ‘Murder raps may be buried’, Philippine Daily Inquirer, December 11, 2009.
[17] Joaquin G. Bernas, S.J., What powers can the President use? (Editorial), Philippine Daily Inquirer, December 7, 2009.
[18] Article III, Section 13 and Section 19(1), Art VIII, Section 5(2)(d).
[19] “Any person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon.”
[20] “An Act establishing a high school in Barangay Dulop, municipality of Dumingag, province of Zamboanga del Sur, to be known as the Dulop High School, and appropriating funds therefore.”
[21] Bernas, supra note 5, page 885.
DOJ: Rebellion was looming, Philstar.com, December 6, 2009, available at http://ph.news.yahoo.com/star/20091205/tph-doj-rebellion-was-looming-541dfb4.html.
[22] Id.
Ermita: Martial law proclaimed without actual rebellion, Philstar.com, December 11, 2009, available at http://ph.news.yahoo.com/star/20091205/tph-doj-rebellion-was-looming-541dfb4.html. Purple S. Romero, Rebellion in Maguindanao? Cabinet officials give mixed answers, ABS-CBN News, December 12, 2009, available at http://www.abs-cbnnews.com/nation/12/11/09/rebellion-maguindanao-cabinet-officials-give-mixed-answers.
[23] Romero, Id.
[24] Supra note 22.
[25] See IBP vs. Zamore, G.R. No. 141284, August 15, 2000.
[26] See People vs. Hernandez, 99 Phil. 515.
[27] Cathy C. Yamsuan, Bernas warns of amnesty for Ampatuans, Philippine Daily Inquirer, December 9, 2009.