Thursday, December 10, 2009

Ermita: Martial law proclaimed without actual rebellion

By Jess Diaz
The Philippine Star
Updated December 11, 2009 12:00 AM

Original Story:

MANILA, Philippines - Executive Secretary Eduardo Ermita admitted on Wednesday night that President Arroyo proclaimed martial law in Maguindanao without an “actual” rebellion taking place in the province as required by the Constitution.

But in response to questions raised by Albay Rep. Edcel Lagman, Ermita pointed to the presence of armed groups supporting the Ampatuan family that were preventing the authorities from enforcing the law, which, he added, was frustrating the ends of justice.

Ermita said the government considered the “presence” or “massing” of the Ampatuans’ armed followers as “rebellion,” one of only two grounds under the Constitution, aside from invasion, for the imposition of martial law.

Ermita though conceded there was no actual rebellion taking place, in the sense of people taking up arms to withdraw allegiance from the central government or prevent it from enforcing the law.

Lagman said that Ermita’s answers to his questions and Justice Secretary Agnes Devanadera’s statement that there was rebellion in Maguindanao was only “looming” prove that Mrs. Arroyo received “bad legal advice” in imposing martial rule in the province.

“The President has enough powers under the commander-in-chief provision of the Constitution to quell a ‘looming’ rebellion or neutralize the ‘presence’ or ‘massing’ of armed loyalists of the Ampatuans. She is authorized to call on the Armed Forces to accomplish that objective,” Lagman said.

Lagman pointed out the absence of rebellion in Maguindanao as defined under the Revised Penal Code.

“What happened there was lawlessness. It was just a partisan conflict that did not require the imposition of martial law,” he said.

Lagman said the framers of the present Constitution removed “imminent threat” of rebellion as a ground for the imposition of martial law since it was abused by the late strongman Ferdinand Marcos in 1972, who used it as an excuse to declare military rule.

“A looming rebellion is like an imminent threat of rebellion, which was precisely removed as a ground for the imposition of martial law by the writers of the Constitution. The President can use her commander-in-chief power to deal with an imminent rebellion,” Lagman said.

Lagman pointed out the Department of Justice (DOJ) and law enforcers should have moved fast to arrest the Ampatuans and others linked to the slaughter of 57 people in the province last Nov. 23.

As it happened, it required the President to impose martial law for authorities to detain the Ampatuans and other suspects, he added.

Lagman lamented that administration officials have not even presented convincing proof, like photographs of the presence or massing of armed groups, to support their looming rebellion claim.

“There was no proof. As far as I am concerned, it is a mere allegation,” he stressed.

Even if there were armed people actually marching in the streets of Maguindanao, Lagman said their goal should be to remove their allegiance to the central government for their act to be classified as rebellion, and not on the act of supporting the Ampatuans or preventing their arrest.

After questioning Ermita, the Albay lawmaker focused on Devanadera and her looming rebellion statement.

It was her first impression based on initial military and police reports, Devanadera replied, but that subsequent reports convinced her that there was actual rebellion.

Devanadera invoked an opinion made by Fr. Joaquin Bernas, one of the framers of the Constitution, that “rebellion” under the Constitution should be construed differently from “rebellion” as defined by the Revised Penal Code, which requires the taking up of arms.

Bernas is of the view that the presence of armed men to prevent the authorities from doing their duties could be considered rebellion.

But Lagman told Devanadera that the administration could not invoke the Bernas opinion because the President cited rebellion as defined by the Revised Penal Code in one of the “whereas” clauses of her martial law proclamation.

Lagman also questioned Devanadera on her agreement earlier that night with Sen. Joker Arroyo that Congress possesses a “continuing power” to review the President’s martial law proclamation, which the legislature can revoke in case of abuses.

“There is no such power and the courts are the proper venue for remedies for excesses,” he said.

Lagman said the justice secretary appeared to have changed her mind.

He said the Senate and the House of Representatives can hold only one joint session on martial law and cannot convene again, as Sen. Arroyo earlier suggested, if it fails to revoke it.

Lagman supported the view of Speaker Prospero Nograles that the only purpose of the joint session is to revoke the President’s martial law proclamation, and that Congress does not have the power to shorten it.

Numbers game

Last Wednesday night’s joint session opened with fireworks among lawmakers arguing over the rules that should be adopted.

Arguments between Makati City Rep. Teodoro Locsin Jr. and Maguindanao Rep. Didagen Dilangalen erupted on the issue on why President Arroyo did not attend the joint session to personally address the lawmakers on the reasons why she declared martial law.

House Majority Leader Arthur Defensor said the “theatrical attitude” of some lawmakers might prolong the deliberations in the joint session.

“I am not sure when we are going to end this exercise (joint session). Hopefully we want to end this as fast as we can but we are not sure when, you know the rhetorical behavior of politicians is unpredictable,” he said.

Speaker Nograles said they would expect the joint session to finish by Monday but Defensor said it might take longer, pointing out the “oratorical and melodramatic” performance of lawmakers in fiery speeches and debates, especially in front of national television.

Defensor pointed to the number of lawmakers scheduled to interpellate Ermita and Devanadera, and the other Cabinet officials.

“We still have a sizable number of interpellators, about 40 congressmen and senators. I hope after quite a number of interpellators have asked questions, many will decide to forgo their interpellations so that we can proceed to the voting,” he said.

Defensor said there was “no deadline set for the joint session.”

Lawmakers from both political fences are gearing up for a battle ahead.

Opposition members of both houses of Congress moved to overturn what they said was the “unconstitutional” imposition of military rule in the province, but conceded they were unlikely to succeed.

In all likelihood, it would still be a numbers game among administration and opposition lawmakers since Congress –with the Senate and the House in joint session – is not likely to revoke the martial law declaration in Maguindanao.

Nograles said the 147 votes required to overturn the martial law proclamation would be difficult to achieve.

The figure is the vote that senators and congressmen need to revoke Proclamation 1959, which is taken from 23 senators and 268 congressmen sitting in joint session. It means both figures should be added, divided by two – then the result plus one would constitute a majority.

Dilangalen, for his part, also conceded there would not be enough votes to revoke the martial law proclamation.

Dilangalen, however, said he would file a petition before the Supreme Court questioning the legality of the proclamation.

“The Supreme Court is the last recourse,” he said.

Dilangalen would be adding to the petition filed by former elections commissioner Christian Monsod before the high court yesterday, questioning the constitutionality of the declaration of martial law.

Monsod, among other petitioners, questioned the presence of rebellion that would justify the imposition of military rule in Mindanao.

‘Why wait?’

When asked if he thinks there was indeed rebellion in Maguindanao that became the basis of the martial law, Nograles replied that it was up to the executive department, or the Office of the President, to make such assessment.

Nograles though conceded the problem lies in the deletion of the phrase “imminent danger thereof” in the 1987 Constitution, leaving only rebellion and invasion as the basis for the declaration of martial law.

“Do we have to wait for them to land on our shores?” Nograles asked. “I think the worst should never happen. It is best to nip it in the bud. The problem is the framers of the Constitution deleted the phrase ‘imminent danger thereof.’”

Locsin, for his part, defended the martial law proclamation, which he said was a necessary tool to counter the Ampatuans’ reign of terror in the province.

Locsin said “nowhere and at no other time has martial law been better justified, nor based more sufficiently on incontrovertible facts.”

Locsin urged his colleagues to do away with technicalities in determining if there was rebellion in the province of Maguindanao that would justify military rule.

Locsin said the senators and congressmen should focus on the facts of the Maguindanao massacre, not on the legalities of martial law or why the President was not present to explain and justify the proclamation.

Not an easy decision

Presidential economic spokesman Gary Olivar said it was not an easy task for President Arroyo to declare martial law.

He said Mrs. Arroyo is eager to lift it as soon as possible.

Olivar said Mrs. Arroyo found it hard to impose martial law but was forced to under the circumstances because of the deteriorating situation in the province.

“I don’t think anyone can be comfortable in martial law,” Olivar said. “It is something that can only be declared after a full counsel, appropriate amount of deliberation and with greatest amount of care.”

Olivar said the absence of Mrs. Arroyo in the joint session was because she had to attend to other affairs of state.

“President Arroyo was inspecting and inaugurating projects. She fully trusts the democratic process,” Press Secretary Cerge Remonde added.

Mrs. Arroyo chose not to attend the joint session and instead sent Ermita and Devanadera to explain.

Lawmakers were grilling Devanadera on the justification of rebellion charges against the Ampatuans aside from the murder charges that should have been filed.

Devanadera explained the murder charges would be separate from the rebellion raps filed against the Ampatuans.

“The cases for murder will not be subsumed in the rebellion charges. This is because murder was committed not in pursuance of rebellion,” she said.

Devanadera said that so far, the government has filed murder charges only against the principal accused, Datu Unsay town Mayor Andal Ampatuan Jr.

She said the other multiple murder charges “are still under preliminary investigation.”

Devanadera told lawmakers that 24 rebellion charges have been filed against the Ampatuans led by Andal Sr., the former governor of Maguindanao.

Sen. Richard Gordon, however, expressed concern that the imposition of martial law in the province has taken public attention away from the massacre of 57 civilians.

Gordon said the filing of rebellion charges would allow the suspects to get away with the crime.

“If we subscribe to the theory of rebellion, we are part of the crime because we are letting them get away with other heinous offenses,” he told Devanadera.

Gordon pointed out rebellion constitutes only one crime which is punishable by one life imprisonment as against 57 counts of murder that carries 57 life sentences.

Gordon shared other lawmakers’ concern that charging the Ampatuans with rebellion might muddle the murder charges because rebellion is a political and not a criminal offense. –With Delon Porcalla, Paolo Romero, Edu Punay, Christina Mendez, Aurea Calica, Evelyn Macairan, AP

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