Saturday, December 5, 2009

Supreme Court: No basis for martial law

By Norman Bordadora
Philippine Daily Inquirer
First Posted 00:15:00 12/06/2009

Filed Under: Human Rights, Churches (organisations), Judiciary (system of justice), Election Violence, Maguindanao Massacre

Original Story:

MANILA, Philippines--The Supreme Court disputed the government’s contention that the court system in Maguindanao was no longer functioning, one of the stated reasons for declaring martial law in the Central Mindanao province.

Lawyers, lawyers’ groups, Church prelates and the Commission on Human Rights also disputed whether the constitutional basis for declaring martial law—invasion or rebellion—was present in the Maguindanao situation.

Midas Marquez, the high court’s deputy administrator and spokesperson, said the cases involving the Maguindanao massacre that were filed before the Cotabato courts were moving forward.

He said it was the search warrants issued by the Kidapawan Regional Trial Court that made possible the police raids on the residences of Ampatuan family members, the suspected perpetrators of the massacre.

“This is far from a picture of a non-performing judicial system,” said Marquez.

The lawyer said that Judge Melanio Guerrero of the regional trial court in Tacurong, Sultan Kudarat, had already issued a commitment order and set the date for the bail hearing of the main accused, Datu Unsay Mayor Andal Ampatuan, Jr.

Guerrero has also already submitted his comment to the Supreme Court on a request from the government for the trial to be transferred out of Cotabato City.

Judges not on leave

Marquez said Kidapawan Judge Francis Palmones Jr. issued no less than six search warrants that authorized the raids on several Ampatuan residences. He said the court was studying other applications and was working “even on weekends.”

Earlier this week, Marquez denied that the judges in Cotabato City had all gone on leave or fled to avoid having to handle the massacre cases involving the Ampatuans.

He said it was not true but confirmed that there had been threats against the judges and other court personnel.

Marquez said that Chief Justice Reynato Puno had already directed Guerrero, the Tacurong judge, to take over Branch 15 of the Cotabato regional trial court, where the multiple murder charges against Andal Jr. are being heard.

There is no regular judge for Branch 15, which has jurisdiction over Shariff Aguak, the site of the massacre, and the substitute judge assigned to it was a former father-in-law of an Ampatuan family member and thus ineligible to handle the case, Marquez explained.

The Cotabato City regional trial court has three branches with jurisdiction over Maguindanao—Branches 13, 14 and 15.

Since Guerrero, the Tacurong judge who took over Branch 15, remains based in Sultan Kudarat, this could be the reason why authorities went to the Kidapawan judge for the search warrants.


Pacifico Agabin, a former dean of the University of the Philippines College of Law, said the martial law declaration was unwarranted and unnecessary.

Government was already clearly in control of the situation with the arrest of several members of the Ampatuan clan and the recovery of a sizeable arms cache, he said.

“The only grounds for the declaration of martial law are invasion and rebellion. I don’t think the Ampatuans are capable of launching a rebellion against the government,” he added.

Even the alleged breakdown of the civilian government in the province with the closure of government offices and the unavailability of the judges doesn’t warrant the declaration of martial law, even if found to be true, Agabin said.

“The Constitution contemplates actual rebellion, not even threatened rebellion,” he said.

“Even if there is a breakdown in government, it is not a ground for the declaration of martial law,” he said.

Lawyer Christian Monsod, one of the framers of the 1987 Constitution, said “imminent danger” of a rebellion was no longer a basis for the declaration of marital law.

“That’s precisely what’s not allowed,” he said, noting that the clause in the 1935 Constitution was what the late dictator Ferdinand Marcos used to declare martial law in 1972.


Monsod said the framers of the 1987 Constitution removed the clause to avoid a repeat of the country’s experience with martial law.

Commission on Human Rights Chair Leila de Lima, who was in Davao City yesterday, said martial law was “unnecessary and uncalled for” as the province was already being secured by government troops.

“I’ve been there, and I saw lots of military forces already in the area,” De Lima told a human rights summit in Davao City attended by lawyers, religious, Muslims and indigenous people.

She said the factual basis of the existence of a rebellion or an impending rebellion “cannot be independently verified at the moment.”

“This is ominous, this is dangerous,” she warned, and urged Congress to look into the issue.

In a statement issued by the CHR, De Lima said calls for swift justice on the Maguindanao massacre and the presence or massing of armed groups may not be enough basis for declaring martial law.

Be extra vigilant

“Full force of the law, not martial law, is the form of decisive governmental intervention that the public expects,” she said.

De Lima said people must be “extra” vigilant to make sure no human rights are violated.

“We have to monitor the human rights situation there. You know what martial law can do to the basic rights of citizens,” she said.

UP law professor Marvic Leonen called for vigilance against possible abuse of martial law power in Maguindanao.

Martial law does not automatically suspend the writ of habeas corpus or justify illegal arrests and detention, Leonen said.

It is also not authorized for the military to replace the civilian government, he said.

“Government cannot just resort to martial law because of its failure to prevent human rights violations by local leaders or its lack of competence in the gathering and evaluation of evidence, and the detention of the perpetrators,” he said.

Lawyers divided

Davao del Sur lawyers, who were at the Davao City forum, were divided over the issue.

Lawyer Israelito Torreon said there was no basis for the declaration as a massacre was not an act of rebellion.

Prosecutor Clemente Quiñones and lawyer Riafe Fe Cagas-Fernandez agreed there was no constitutional basis and said it was a case of “overkill.”

But lawyer Leonardo Suario said the declaration was necessary “for a limited period for purposes of disarming all private armies.”

Church voices

Caloocan Bishop Deogracias Iñiguez said there might be a need for an extraordinary response to the severity of the situation in Maguindanao but called on the people to exercise vigilance.

“There are those that say there may be an ulterior motive,” Iñiguez said, adding that people should observe whether martial rule would indeed be used to restore peace and order.

Cotabato Auxiliary Bishop Jose Colin Bagaforo said he was agreeable to the declaration of martial law as long as it is in accord with the Constitution.

“(The) elements of general public safety and imminent danger to lives are there along with the elements of terrorism,” Bagaforo was quoted as saying in the Catholic Bishops’ Conference of the Philippines website.

“The element of civilian governance is almost unreliable at present for justice to prevail,” he added.

Lipa Archbishop Ramon Arguelles and Bacolod Bishop Vicente Navarra disagreed that there was the element of rebellion.

“There is no rebellion there, there is a grievous criminal situation but which does not warrant martial law,” Arguelles said in remarks posted on the CBCP website. With Alcuin Papa, Julie M. Aurelio and Inquirer Mindanao Bureau

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