POSTSCRIPT / December 8, 2009 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Partisanship stains martial law review

REVIEW SET: The Congress in joint session is set to review today the legal and factual basis of Proclamation No. 1959 issued by President Gloria Arroyo last Dec. 4 “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.”

Voting together, a majority of the lawmakers can revoke the proclamation.

There will be no distinction between the vote of a senator and that of a congressman. This means that even if all the 23 senators vote against the proclamation, the draconian measure will gain congressional validation if an overwhelming majority of the congressmen vote for it.

But the legal battle can be moved to the Supreme Court by any citizen questioning the martial law proclamation or the suspension of the privilege of the writ of habeas corpus. The tribunal must hand down a ruling in 30 days.

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ELEMENTS: The basic citation is Section 18 of Article VII (Executive Department) of the Constitution which provides:

“The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.”

There are two requirements for a valid proclamation of martial law or its extension: (1) there must be an invasion or rebellion, and (2) public safety must require such a proclamation.

There is no invasion, so that element is out. But is there a rebellion in Maguindanao? And if there is a rebellion, is it of such nature that public safety requires the proclamation of martial law?

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PUBLIC JURY: Malacañang cites RA 6968, which says that the crime of rebellion or insurrection is committed “by rising publicly and taking arms against the government for the purpose of depriving xxx the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

The President’s report to the Congress, supported by pictures of the Nov. 23 massacre of at least 57 innocent persons in Maguindanao, narrates events leading to the supposed rebellion or insurrection and the eventual proclamation of martial law.

Based on all information available to senators and congressmen, the Congress will decide whether or not there is indeed a rebellion or insurrection in Maguindanao.

With the help of the mass media, the public will also be able to sit as an informal jury passing a non-binding judgment outside the institutional process in the Congress.

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LIMITATIONS: For the information of those worried about possible martial law abuses, here are additional provisions of the Section 18 cited above:

“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 30 days from its filing.

“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 of habeas corpus.

“The suspension of the privilege of the writ of habeas corpus 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 of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

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PARTISAN COLOR: While there is concern that the Chief Executive’s martial law powers might be abused, it also appears that people’s assessment of the situation has been colored by politics and their attitude toward the President.

There is a danger that the review by the Congress of Proclamation No. 1959 might run along political or partisan lines. This will reduce the process to a farce, or at least to a game of numbers much like the voting in an impeachment procedure.

It is sad that a matter as life-changing as the proclamation of martial law is to be judged on the basis of partisan politics.

Still, the congressional review must proceed to satisfy the requirements of the Constitution. Anyway there is the parallel route going to the Supreme Court, which hopefully may be less susceptible to partisanship.

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(First published in the Philippine STAR of December 8, 2009)

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