POSTSCRIPT / December 13, 2009 / Sunday


Philippine STAR Columnist

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The state’s self-defense: Preemptive martial law

(Note: This was written before the lifting of the proclamation of martial law in Maguindanao was announced late yesterday by Malacanang.)

SELF-DEFENSE: Maybe I do not hate President Arroyo enough, so I do not see anything seriously wrong with her proclaiming martial law in sections of Maguindanao wracked by a rebellion led by some warlords.

I am a plain citizen who believes that the State has the power and the right to defend itself. When the Republic’s integrity is assailed and its survival threatened, its leaders and its citizens must move decisively to thwart the menace.

I have been taught that the moment an adversary touches his gun menacingly, it would be stupid of me not to follow my instinct to draw and shoot in self-defense. I will not wait for him to fire before I react. Waiting will be fatal.

The government must not wait till a full-blown rebellion is rampaging across the land before it acts in self-defense. It should move at the first clear sign of an armed and organized challenge to national security and sovereignty.

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CONTINUING ACT: When the Nov. 23 massacre of at least 57 innocent civilians in Maguindanao was found out, its perpetrators mobilized their private armies and the state militias under their influence to repel the authorities moving to restore sanity and the rule of law.

Rebellion is a continuing crime, starting with the planning by the plotters, continuing with the taking of arms and the mobilization of rebel forces, the exchange of fire, and ending either with its victory or its defeat.

It is naïve to insist that rebellion starts to exist only when and where there is already widespread combat. Mere mobilization of armed groups is already part of the continuing act of rebellion.

It is also myopic to think that there is no rebellion when the uprising is not fueled by ideology. History is replete with scenarios of big numbers of people rebelling against their government even without an ideology guiding or goading them.

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PREEMPTIVE & CALIBRATED: The initial quick response to rebellion is the sole responsibility of the President. The calibration of self-defense moves is left to the Commander-in-Chief’s best judgment after assessment of intelligence and due consultation.

In the Maguindanao rebellion, the apt initial response selected by the President was preemptive martial law in the area of conflict chosen by the enemies of the state.

In acting as she did, the President being the president must be allowed the usual presumption of regularity.

Some of her incurable critics pontificating from their armchairs in Manila say that her preemptive martial law response in Maguindanao was overkill. It was not.

That was her executive decision as President and Commander-in-Chief. Her detractors will have the chance to try their own response to a rebellion if and when they become president and are confronted by a similar threat.

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REVIEW & OVERSIGHT: In our political setup, an emergency instigated by forces challenging authority and seriously disrupting government operations calls for a rapid response by the Executive.

The other two departments — the Legislature and the Judiciary — merely exercise oversight functions. They are sort of looking over the shoulders of the President whose finger — and hers alone — is on the trigger.

The Congress, upon being informed by the President of the proclamation of martial law, has the option to revoke the proclamation by a majority vote of all its members in joint session.

Upon petition of any citizen, the Supreme Court may also review the factual basis of the proclamation of martial law and must render a judgment in 30 days.

But these congressional and judicial actions come after the fact — after the President has performed her duty to neutralize promptly the incipient rebellion.

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BENIGN VERSION: With the checks and limitations imposed by the Constitution, our present-day martial law is actually a benign edition of the Marcosian martial rule imposed in 1972.

Under the current charter, martial law may not be imposed for a one-time period longer than 60 days. The Constitution remains in effect in its entirety. The Bill of Rights is intact and enforceable. Any person detained must be charged within 72 hours or released.

The martial law proclamation is subject to congressional and judicial review, and its revocation by the Congress cannot be overturned by the President.

While I see the need for preemptive martial law, I have to caution against possible abuses in its implementation. But note that abuses after the fact do not detract from the rationale of martial law per se.

And since abuses are still in the realm of possibilities, we can tackle them as they rear their ugly heads, if they ever do.

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TEODORO CLEAN: On a related point, the discovery of tons of government arms and ammunition in the premises of the alleged masterminds in the mass murder has put former Defense Secretary Gilbert Teodoro on the spot.

This is understandable since he was defense secretary for two years prior to the Maguindanao carnage. Being a presidential candidate, he has become an object of black propaganda relating to state materiel reaching the hands of rebels.

Yet, Teodoro himself favors, and has urged, an inquiry by the armed forces.

He has explained that the J4 (AFP logistics office) has a production record of all guns and ammunition in the government arsenal. All the armaments carry specific lot numbers indicating the date of manufacture and issue, and identify the accountable officer.

Teodoro is actually above the mess. The disposition of guns and bullets is handled at the lower level of the armed forces. The defense secretary does not exercise operational control over their distribution.

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(First published in the Philippine STAR of December 13, 2009)

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