Was there rebellion on May 23, 2017?

WAS THERE an ongoing rebellion in Mindanao on May 23, 2017, the date when President Rodrigo Duterte signed Proclamation No. 216 imposing martial law on that island in the South?

That is the central issue that the Supreme Court must resolve in connection with a petition brought before it questioning the factual basis of Proclamation 216.

The reference date is May 23, 2017 – not later – because the proclamation could not have been based on a future or imminent situation. Since Mr. Duterte is neither prophet nor fortune teller, he could not have foreseen what could develop in Mindanao after signing the proclamation.

Even assuming that he saw a rebellion coming, that would be immaterial since Section 18, Article VII, of the Constitution which he invoked had been stripped of the “…(rebellion) or imminent danger thereof” clause in the 1935 Constitution used by then President Ferdinand Marcos when he declared martial law in September 1972.

As Commander-in-Chief, President Duterte has the power to declare martial law under Section 18 only “in case of invasion or rebellion, when the public safety requires it.”

Since there was no invasion on May 23, 2017, only a rebellion could have justified his proclaiming martial law in Mindanao that day. Fears of an imminent rebellion cannot be a basis for the proclamation.

Under Article 134 of the Revised Penal Code, “The crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

Was there a rebellion, as defined, at the time of the proclamation of martial law? Government lawyers are expected to say there was, citing facts available to President Duterte on May 23, while his detractors will dispute that claim or present alternative facts.

Like most Filipinos, I do not have all the information I need. My impression, however, is that a rebellion was brewing in Lanao at that time. Anyway, let us leave the factual determination to the Supreme Court.

• Martial law can stoke violence

BUT WHAT if the factual basis was not sufficient at the time, and the imposition of martial law merely stoked the existing violence or lawlessness into resembling a rebellion? That would be a case of the cart pulling the horse, or a reversal of a cause-and-effect relationship.

To put events in proper order, the Executive must produce validated facts showing that lawlessness had been building up in Mindanao and crossed the threshold to rebellion by the time the proclamation was signed on May 23.

As late as yesterday, however, presidential spokesman Ernesto Abella was still talking of mere lawlessness and terrorism, not of a rebellion. He said the arrest of the father of the Maute brothers could “break the cycle of lawlessness” and “suppress future terrorist acts.”

The Executive is expected to allege at the Supreme Court that Islamic State jihadists have been active in Mindanao. Their involvement, if confirmed, must still be shown to be part of a rebellion.

Validated intelligence in the exclusive possession of the President will normally be controlling, unless the petitioners in the Supreme Court produce credible controverting facts.

So as not to get lost in the confusion, we reiterate: There must have been an ongoing (not imminent) rebellion when the tip of President Duterte’s sign pen touched the paper on which his Proclamation 216 had been printed.

• 1935 and 1987 texts compared

FOR READY reference of readers, especially non-lawyers like us, we print below comparative sections of the 1935 and the 1987 Constitutions.

Section 18, Article VII, of 1987 Constitution: “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 48 hours from the proclamation of martial law or the suspension of the privilege of the 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 24 hours following such proclamation or suspension, convene in accordance with its rules without 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 or the extension thereof, and must promulgate its decision thereon within 30 days from its filing.”

Section 10, Article VII, of 1935 Constitution: “The President shall be 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, insurrection, or rebellion. In case of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law.”

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