Does the crime justify the means?

Last December 4, President GMA promulgated Proclamation 1959 which placed the entire province of Maguindanao under martial law and suspended the privilege of the writ of habeas corpus. This is the first time in 22 years that these powers were used under the 1987 Constitution. This is an interesting occurrence insofar as law students are concerned, but a disturbing development for human rights advocates, tourists and foreign investors.

Legal basis: As Commander-in-Chief, the President has three distinct powers: 1) whenever it becomes necessary, to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion; 2) in case of invasion or rebellion, when the public safety requires it, she may a) suspend the privilege of the writ of habeas corpus; and/or b) place the Philippines or any part thereof under martial law. Note that unlike its counterpart provisions in the 1935 and 1973 Constitutions, which allowed for a suspension or proclamation on the basis of an “imminent danger” of invasion or rebellion, the 1987 Constitution requires actual invasion or rebellion before the powers can be exercised. Query as to whether the cold blooded murders, gruesome as they may be, constituted acts of actual rebellion?

Legal safeguards: Because of the abuses experienced during the 1972 martial law regime, the framers of the 1987 Constitution provided checks to the President’s Commander-in-Chief powers. Among the safeguards instituted are: 1) The suspension and/or proclamation shall not exceed 60 days unless Congress extends it; 2) Congress, if not in session, needs to convene within 24 hours while the President has 48 hours to submit a report in person or in writing to Congress. While Malacañang was able to comply with the 48-hour requirement when it submitted the report last Monday, it took Congress 96 hours to convene reasoning that they could not get together earlier if there was no report to consider. Another reason they posed for the delay was the need to formulate rules for the joint session; 3) Congress, voting jointly, by majority vote of all its members, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Note that this is the only instance in the Constitution where joint Congressional voting is provided so the votes of the bigger House of Representatives can overwhelm the smaller Senate; 4) The Supreme Court may review the factual basis of the decision within 30 days from filing of an appropriate proceeding. As of this writing, seven petitions have been filed questioning the proclamation so a decision will need to be promulgated by the high court within the first week of January 2010; 5) Martial law does not suspend the operation of the Constitution, supplant the functioning of courts or legislative assemblies nor authorize military courts to take jurisdiction over civilians; 6) The suspension of the privilege of the writ of habeas corpus only applies to persons judicially charged for rebellion and that any person arrested or detained shall be so charged within three days, otherwise he shall be released. However, our prosecutors should keep in mind that the penalty for murder is much higher than the penalty for rebellion.

Legal effects: The crime of rebellion is clearly defined in the Revised Penal Code. It’s objective is to take up arms against duly constituted authorities. It is a political offense directed towards removing allegiance from established government. That seems not to have happened in Maguindanao. So from a strictly legal perspective, martial law is not justified. And yet the enormity and brutality of the crime could sway our lawmakers and justices to go beyond the legal realm. The subsequent discovery of sophisticated weapons, not to mention the luxury homes and vehicles, provide added emotional support for them to look the other way.

To be honest, I am not sure how martial law as envisioned in the 1987 Constitution impacts administrative governance. For example, does it allow the military to conduct warrantless arrests and searches in the entire province? How does the appointment of a martial law administrator affect the hierarchy of authority in the local government unit? The forthcoming Supreme Court decision should be instructive on these points. Regarding the latter, I hope that any technicality brought about by the martial law proclamation will not be used to frustrate the ends of justice.

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One Big Night!: All roads lead to Katipunan today as the blue eagles celebrate their sesquicentennial anniversary alumni homecoming at its high school covered courts. Founded in 1859, the Ateneo De Manila moved to its Loyola Heights campus in 1952 upon the instigation of Fr. William Masterson. At that time, people thought that Masterson was crazy as he was moving the school from bustling Padre Faura to greenfield Loyola. In hindsight, he is now a regarded as a genius insofar as directing the move but not enough of a seer because he should have bought more land. If he can only see the Katipunan traffic now!

I have an interesting personal story to tell. My mother’s brother, the late, great Rafe Donato, FSC, was the principal of La Salle Greenhills when my three brothers and I were growing up. But my father who was a Loyola pioneer said that no son of his would go to Greenhills. So I ended up staying 16 years in the blue hills of Loyola and 4 years in the urban jungle of De La Costa. But what went around came around as while in law school, I was invited by Brother Rafe who, by that time, was president of De La Salle Taft to teach, saying I needed to do penance for my sins of 20 years. When La Sallians asked me why I was teaching at Taft, I tell them that I experienced an epiphany and had seen the green light! And I did more than that, as in 2003, our FEU Institute of Law linked up with DLSU Graduate School of Business to offer the trailblazing JD-MBA dual degree program in law and business. On the other hand, when rabid blue bloods ask me why I am “sleeping with enemy,” my standard answer is that someone needs to preach the Jesuit gospel to the academic pagans.

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 “Mary for you, for your white and blue

We pray you’ll keep us Mary, constantly true

We pray you’ll keep us Mary, faithful to you.” — Song for Mary

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