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Passion For Reason
A bizarre Human Rights Day

By Raul Pangalangan
Philippine Daily Inquirer
First Posted 20:42:00 12/10/2009

Filed Under: Human Rights, Martial Law, rebellion

YESTERDAY (Thursday), we marked human rights day under the shadow of martial law?for the first time in 25 years at least, if you count from Ferdinand Marcos? formal lifting of martial law in 1981 after he maneuvered amendments that codified into the Constitution the patchwork of emergency powers he had exercised since he seized all powers that dark night in September 1972.

The Inquirer editorial aptly called martial law ?the last taboo? in our post-Marcos democracy, and we?ve got to hand it to President Macapagal-Arroyo to time its breaking to straddle the global celebration of the 1948 Universal Declaration of Human Rights.

Supreme Court Justice (now retired) Vicente V. Mendoza said that ?the power to declare martial law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly.?

In Randolf David v. Gloria Macapagal-Arroyo, the Supreme Court called martial law the ?least benign? in the ?sequence of graduated powers? available against threats to national security. This sequence begins, on the benign end, with the ?calling-out? power (i.e., to call out the Armed Forces), then escalates to the power to suspend the privilege of the writ of habeas corpus, and then crescendos with the power to declare martial law.

In another case, Chief Justice Reynato Puno said that the commander-in-chief clause ?enumerate[s] with exactitude? the ?well-crafted powers of the President? but which ?can only be used to quell the rebellion.? The Court, when it dealt with GMA?s claim of emergency powers after the Oakwood mutiny, emphasized that the rebellion be actual and not just imminent?or, to use the more current term, ?in the offing.?

Why then has President Arroyo resorted lightly to this bitter potion? By now you must have heard the many possible explanations, all of them unbelieving of her proffered rationale. The most persistent version is that it is all a scheme to let the Ampatuans off the hook: either for them to be cleared of the charges, or at least to be released on bail, or to have their penalty reduced.

The first legal scenario unfolds thus: The Ampatuans now stand charged with some 57 counts of murder. By adding rebellion into the brew: one, Ms Arroyo raises the bar, because there now seems to be enough evidence for murder, but adding rebellion now will merely require a new round of charges and proof; two, as first explained by professor Barry Gutierrez, director of the UP?s Human Rights Institute and Akbayan?s legal counsel, the charge of rebellion will exclude other crimes, which are then merely absorbed into the rebellion charge (a doctrine long-ago established for a truly worthy intellectual warrior, the poet Amado Hernandez). If the Court finds that there was no rebellion, we then set the stage for letting the Ampatuans go scot free. Truly ?sinister,? as Sen. Rodolfo Biazon says, because it basically manipulates the judiciary as an unwilling co-conspirator of Arroyo in sabotaging our democracy.

The other scenario is that Arroyo is merely testing the waters to find out how far she can go. This precisely was what Marcos did in 1971. The suspension of the writ of habeas corpus after the Plaza Miranda bombing?and the unanimous Supreme Court decision validating it in Lansang v. Garcia?is now viewed as merely the dress rehearsal for the 1972 proclamation of martial law.

Perhaps GMA?s goal is merely to muddle the issue and cause political confusion, since it will force the civil libertarians into the same side, even temporarily and uncomfortably, with the Ampatuans. Already, there are disingenuous interpretations that will lower the threshold requirement for ?rebellion.? The argument goes: the ?rebellion? requirement in constitutional law under the commander-in-chief clause is different from the very strict requirement to imprison a rebel in criminal law. This will actually make it easier for GMA to justify her martial law powers. Yet the fancy hairsplitting is all for naught, because GMA?s own Proclamation 1959 already adopts the same strict definition under criminal law and cites Republic Act 6986 or the anti-coup d?etat law.

The brazenness of it lies in that Proclamation 1959 claims that ?the local judicial system [is] not functioning, thus endangering public safety.? Supreme Court spokesman Jose Midas Marquez has categorically denied this claim. While not judicially binding upon the SC justices, he gives us concrete facts that belie GMA?s claims of a failure of the local judicial system. While it was true that judges in the area were taking precautions to ensure their safety, he said, they never stopped performing their duties.

He gave concrete examples of a functioning judiciary: The raid of the Ampatuan mansions that yielded the cache of high-powered, government-issue firearms was made under a search warrant issued by Kidapawan Regional Trial Court Judge Francis Palmones Jr. The bail petition of Mayor Andal Ampatuan Jr. of Datu Unsay who has been charged with murder has been set for hearing by Judge Melanio Guerrero of the Tacurong, Sultan Kudarat, Regional Trial Court. As for the transfer of venue from Cotabato to Manila, the Supreme Court has promptly heard the matter.

GMA has so deviously manipulated the law and, in so doing, has so mangled our institutions that it actually feels weird to argue things legally as if the other side truly believed in laws and constitutions, reminding us of the philosopher?s metaphor about ?high priests who have lost their faith but kept their jobs.? The high priestess has kept her job, for sure, but I doubt if, to start with, she ever had any faith to lose.

* * *

Comments to passionforreason@gmail.com



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