Saturday, December 5, 2009

Martial Law is Not a Substitute for Competence

Today at 1:10 am on Facebook the Dean of the University of the Philippines College of Law published a Note that I would like to share with Philippine Commentary Readers for purely academic purposes in light of the reported declaration of Martial Law by President Arroyo over the province of Maguindanao.  
Martial Law is Not a Substitute for Competent Police Work:
Statement on the Reported Proclamation of Martial Law in Maguindanao
Marvic M.V.F. Leonen
Dean and Professor of Law
University of the Philippines

The heinous massacre of civilians in Ampatuan, Maguindanao deserves competence of the highest order in the gathering, preserving and evaluation of evidence as well as in the subsequent arrest and prosecution of its perpetrators. It should also be the platform for a sober approach that will comprehensively address the issue of private armies of misguided politicians. Any meaningful solution should be led by civilians preferably those who can remain independent of influence from national public officials who have openly declared partisan interests in the upcoming election.

The reported declaration of Martial Law in Maguindanao should be assessed in this light as well as in terms of its compliance with the very stringent requirements contained in the 1987 Constitution.

The President should also observe an extraordinary level of transparency and accountability with this declaration. She must clearly demonstrate why martial law needs to be declared. The proclamation of Martial Law can be used as a means to gain unfair advantage in the upcoming elections or as an excuse to declare a failure of elections contrary to the people’s will. The need for transparency and accountability is even more urgent given the unnecessary proclamation from the spokespersons of the Office of the President that the incumbent has remained “friends” with those widely suspected of having committed the atrocities in Mindanao. The need for transparency and accountability is also necessary in the light of the role of the suspected perpetrators in the controversies surrounding the 2004 elections.

Under the 1987 Constitution, martial law can only be declared in cases of invasion or rebellion and only when public safety demands it. Rebellion requires that there is at least a taking up of arms publicly directed against an existing government. Martial law cannot be declared because the state has failed to prevent massive human rights violations by leaders that the national government itself has nurtured. Martial law cannot be proclaimed to cover up the lack of professional competence in the gathering, preservation, evaluation of evidence and in the arrest and detention of the perpetrators. Martial law is also not the proper legal response to the issuance of a writ of amparo in favor of the Ampatuan family.

A report on how the proclamation was executed must be made within 48 hours of its proclamation to both the House of Representatives and the Senate. Congress must convene within 24 hours after it is proclaimed. Any proclamation of martial law by the President can only have a maximum effectivity of 60 days. This can be revoked (or extended) by Congress. Any revocation by Congress cannot be overturned by the President. In case martial law has been proclaimed, the electoral ambitions of all members of the House of Representatives and the Senate should be put aside so that they can observe their obligations required in the Constitution.

The proclamation of martial law does not supplant the civilian bureaucracy. It does not supplant the operation of the Constitution including its provisions for the protection of individual and collective rights. It does not supplant the operations of local government nor the fact that local governance is subject to existing law. Martial law does not automatically suspend the writ of habeas corpus or justify illegal arrests and detention. In other words, it is not authority for the Commander in Chief or the military to replace civilian government. Certainly, the public should be encouraged to engage the courts should there be any violation of any provision of law or the constitution.

Abuse of executive privilege will only tarnish the memories of those who have been martyred by the violent excesses of misguided public officials. I call for vigilance for competent, transparent, accountable government as well as for the protection of human rights of peoples in Mindanao.

Quezon City, December 5, 2009

Provisions in Article VII of the 1987 Constitution

“Sec. 18. 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 sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of 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.

“The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.

“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 thirty 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 the 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.

“The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion.

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


GabbyD said...

can martial law pre-empt a rebellion?

Jesusa Bernardo said...

Calling all the yellows and the rest of the uncivil "civil society," take the blame for the Gloria nightmare. LOL.