Thursday, December 10, 2009

‘Murder raps may be buried’ (Rebellion could be way out for clan, says Gordon)

By Gil C. Cabacungan Jr., Michael Lim Ubac, Leila Salaverria
Philippine Daily Inquirer
First Posted 01:28:00 12/11/2009

Filed Under: Maguindanao Massacre, Crime and Law and Justice, Martial Law, rebellion, Murder, Congress

Original Story:

MANILA, Philippines — Rebellion can be a defense against murder charges.

Sen. Richard Gordon declared on the second day of the joint session of Congress that was convened to deliberate on the declaration of martial law in Maguindanao province.

The joint session of Congress may revoke or support the martial law proclamation by a simple majority vote, or 147 votes.

The session adjourned at 9:30 p.m. It will resume on Monday, Dec. 14, at 4 p.m.

Other senators warned that the imposition of martial law could exonerate the Ampatuans from their involvement in the massacre of 57 people in the province on Nov. 23 because of warrantless arrests and seizures.

Gordon said Congress’ endorsement of Presidential Proclamation No. 1959 would provide the perpetrators of the massacre with a way to escape the heavier penalty for murder by embracing the rebellion charges.

Rebellion charges carry lighter penalties, he noted.

“They are criminals but if we caught them, they would claim to be rebels. If there was no case of rebellion they would have been charged with 57 counts of murder, 57 counts of illegal possession of firearms,” he said.

Gordon said the government might be letting others get away with the worst crimes and the worst penalty by claiming that the Ampatuans were engaged in rebellion.

“The scope of martial law is sweeping, and if this issue gets buried over time, they can be pardoned for their rebellion,” Gordon said.

President Gloria Macapagal-Arroyo last Friday placed Maguindanao under military control for up to 60 days after members of the powerful Ampatuan clan allegedly threatened to attack if its leaders were arrested for the massacre.

Since martial law was imposed, more than 60 people have been rounded up, including five clan leaders who have since been charged with rebellion.

Datu Unsay Mayor Andal Ampatuan Jr., prime suspect in the massacre, is already in jail and charged with 25 counts of murder even before martial law was imposed on Dec. 4.

“Aren’t we making a mistake? ... (A)s a lawyer, I know that if we declare martial law is valid, and the suspension of habeas corpus is valid, and even if we charge them with multiple murders, Mayor Ampatuan and his lawyer will say Congress has declared martial law as valid, therefore, we are rebels,” Gordon said.

“And because we are rebels, you can only charge us with rebellion,” the senator said.

Passes to be free

Gordon said that despite the murders, destruction of property and illegal possession of firearms, Mayor Ampatuan could only be charged with reclusion perpetua and his allies, reclusion temporal.

Reclusion perpetua carries a jail term of 20 to 40 years, and reclusion temporal, from 17 to 20 years.

“We are giving him passes to be free,” Gordon said.

Justice Secretary Agnes Devanadera, one of the resource persons in the joint session, said murder could not be absorbed by the crime of rebellion.

Government prosecutors have already filed separately murder and rebellion charges where applicable and rebellion charges if the evidence warrants, according to the justice secretary.

Gordon said that while that might have been the government’s intent, it would not stop Ampatuan lawyers from using it as a defense.

Illegal searches

Senators Alan Peter Cayetano and Francis Pangilinan noted that the executive panel led by Devanadera admitted that the government, through police and military troops, could search without warrants.

“There are warrantless searches, which are not tantamount to illegal searches, but they (government officials) are saying that as long as there is a regime of martial law in that area, they can search anything,” Cayetano said in an interview.

Interviewed after the interpellation, Cayetano said that if the officials continued to pursue that doctrine and make searches, they may wittingly or unwittingly be helping the Ampatuans and throwing away their case.

Cayetano said materials obtained through illegal searches could not be used as evidence.

Bungling the case

Taking the floor, Pangilinan said that the eight to 10 warrantless searches and seizures conducted by the police and military after the declaration of martial law were contrary to law.

“The government is bungling the case. The evidence seized illegally cannot be used against the Ampatuans. Nowhere in the Constitution does it say that the right against illegal searches and seizure is suspended,” he said.

Martial law does not suspend the Bill of Rights, Pangilinan said.

For her part, Sen. Miriam Defensor-Santiago said the martial law declaration had no legal basis.

Santiago noted the absence of an actual rebellion and ideological motivation to rise up against the government.

She also said that public safety was not endangered by the “crimes committed by the warlords.”

In an unexpected move, an avid supporter of pro-democracy icon Corazon Aquino came out to defend military rule in Maguindanao and to appeal to everybody to leave it alone until it has served its purpose.

Makati Rep. Teodoro Locsin, Aquino’s speech writer and press secretary, was the first to note the irony of him defending a martial law proclamation.

He said the bodies and the stockpiled firearms “cry out for the most extreme exercise of the police power, which is nothing less than martial law.”

“Nowhere and at no other time has martial law been better justified or based more sufficiently on incontrovertible facts,” Locsin said.

“We are seeing Maguindanao and what we see, unless we are morally blind, cries out for martial law—at least for now,” he added.

Actual, not imminent

On the floor, Santiago explained that the framers of the 1987 Constitution envisioned actual, not imminent rebellion. Until yesterday, she said there was no media footage or pictures of two groups “shooting at each other.”

“The Constitution imposes two conditions for martial law; there should be a state of actual rebellion and public necessity requires it. These conditions do not exist today,” she said.

“Hence, I humbly submit this general test for constitutional martial law: Is martial law a necessity for the existence of the state? The answer is ‘No.’ I further submit this particular test: Is there an actual rebellion, and does public safety require martial law? Again, the answer is ‘No.’”

Santiago said the penal code defines the crime of rebellion as “rising publicly and taking arms against the government for the purpose of removing from the allegiance to said government or its laws.”

In other words, she said rebellion was an open, organized and armed resistance to established government.

Fatal flaw

Santiago pointed out that PP 1959 did not even claim that there was a state of actual rebellion which, she said, was a “fatal flaw.”

She said the proclamation’s claim of “heavily armed groups in the province of Maguindanao have established positions to resist government troops” was not a condition contemplated by the Constitution.

Santiago also reminded the Cabinet officials that rebellion was a political offense, not a common crime and, thus, carried a lighter penalty than murder.

She said the essence of a rebellion was “ideological motivation,” and since it was absent there was no rebellion in the first place.

She later explained to reporters that the Ampatuans were neither “communists nor fascists” but mere warlords. “I say again, show me the rebellion,” she told her colleagues.

The second condition warranting martial law is that “public safety requires it,” she said.

“But crimes committed by warlords against each other are basically threats to the safety only of their respective camps,” Santiago said, suggesting that “what they constitute are not threats to public safety per se, but acts of terrorism.”

She said when two groups were quarreling, “they are not danger to public safety, but they are threat to each other.”

Obstructive authorities

Locsin, the first member of the House to speak at yesterday’s joint session, said there was rebellion in Maguindanao to justify martial law, but it was not the kind of rebellion as defined by the Revised Penal Code.

“I submit that 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,” he said.

Ideology has not been a component of rebellion since the revocation of the anti-subversion law, he added.

Locsin cited the refusal to obey government commands, the usurpation of government offices and the use of these offices to protect the suspects in the massacre in Maguindanao as bases for the proclamation.

Original Story:

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