RESTORE RULE OF LAW FULLY TO MAGUINDANAO & OTHER LGUs
(Statement of Sen. Nene Pimentel at the Joint Session of the Senate
and the House of Representatives, December 14, 2009)

The lifting of martial rule over the province of Maguindanao last December 12 was a good move.

It saved the government from embarrassment because no matter what the authorities say, there was no constitutional basis for its proclamation.

It saved the Constitution from being further mangled by the clearly capricious resort to martial rule.

It saved the people of Maguindanao - especially the poor, the powerless and the oppressed - from the abusive, whimsical and irrational rule of the gun of agents of the Executive Department.

Despotic rule

This is not to say that we prefer the despotic rule of the Ampatuans in Maguindanao to the martial rule of the government.

For although they were supposed to have been elected by the people recent events showed that the elections in Maguindanao had been unfree, disorderly and dishonest. Voters were in general forced, coerced or compelled to vote for the Ampatuans or their candidates. And instances of prefilled ballots had been reported even before Election Days.

The most recent gory, ghastly and gruesome massacre of some 57 innocent people at Maguindanao last November 23 speaks volumes of the kind of elections that are held in Maguindanao.

The main targets of the mass murder were Muslims. But there were non-Muslims, too. Indeed, men, women, and children of several faiths.

No religion

The principal perpetrators of the indiscriminate slaughter were Moros. It is possible that some of the killers were hired hands that respect no religion.

I specifically mention these preliminary data to show that the Moros of Mindanao cannot complain that their main oppressors are Christians.

In history, there had been instances where the Spanish conquistadores wrought havoc on the settlements of the Moros.

But so had Moro raiders razed many a non-Moro settlement in many Spanish colonized parts of the Philippine archipelago.

Past lessons

But if we keep on raising the specter of the past, we might not be able to move forward in our search for peace and development in Muslim Mindanao. The reason is that history is full of recorded atrocities committed from many sides of religion that divided people.

The thing is that while we must not forget the past, we must learn from its lessons.

Partisan politics

But to go back to the recent Maguindanao massacre, it must be mentioned, lest we forget, that what now appears to be the main motive for the unforgivable carnage was partisan politics.

Since the present administration came to power, Governor Andal Ampatuan of Maguindanao has lorded it over the people in the province.

And he apparently brooks no dissent from anyone.

Contrary view

The Mangundadatus are a Muslim clan residing in Maguindanao. They happen to believe that as citizens of this Republic, they have the right to aspire for public offices with or without permission from the self-proclaimed supreme ruler of Maguindanao, Governor Andal Ampatuan.

One of the Mangundadatus, Toto by nickname, dared to announce that he was running for governor of the province against whoever the Ampatuans would put up. On that fateful day he sent his wife in the company of two lady lawyers, several journalists and some supporters to file his certificate of candidacy with the office of the Commission on Elections located in another municipality.

Blasphemous

Apparently, that act of Toto was considered by the Ampatuans blasphemous against the patriarch of the family who by now had assumed demigod attributes by which he additionally intimidates his subjects.

One of his sons, Mayor Andal Ampatuan Jr., of the municipality of Datu Unsay, from the look of things, took it upon himself to punish the blasphemer. Under his direct command, over a hundred armed men wearing the uniforms of soldiers or of the police or of government paramilitary units ambushed a convoy of vehicles ferrying Toto Mangundadatu's wife, his two lady lawyers, several journalists and other supporters.

When the shooting stopped scores of dead bodies littered the ambush site.

While we condemn in no uncertain terms the carnage perpetrated by individuals associated with the Ampatuans, we also bewail the inappropriate response of the government that proclaimed martial rule in Maguindanao.

The Constitution clearly requires the existence of an invasion or rebellion that demands the protection of public safety before martial rule may be declared.

No invasion/rebellion

There was no invasion in Maguindanao.

There was no rebellion in Maguindanao that could even remotely be connected with the massacre of the innocent individuals in Maguindanao on November 23.

The victims were not doing anything contrary to law. They were travelling along the highway on the way to the office of the Commission on Elections of the province to do a perfectly legal act: the wife to file the certificate of candidacy of her husband, Toto Mangundadatu, for governor of Maguindanao. The others, to witness, record and report the event as media practitioners.

They were unable to do what they had set out to do. They were fired upon and killed. They could not even fire back because I understand they were unarmed.

The ambushers were later on positively identified as led by the mayor of the municipality of Datu Unsay, Andal Ampatuan Jr., a son of Governor Andal Ampatuan of Maguindanao.

As previously mentioned, the killers were in military or police uniform. They were reportedly members of the Civilian Volunteers Organization, a paramilitary unit that is supposed to help in the maintenance of law and order in the areas of their assignment.

In the Maguindanao incident we speak of, they did not maintain law and order. They broke the law and created disorder.

Unconstitutional

Hence, the reaction of the Executive Department in proclaiming martial rule while appealing to those who want blood for blood is not exactly in conformity with the intent of the Constitution that has wisely calibrated its lawful response to the challenges against the governmental authority of the Republic.

Government warlordism

By resorting to martial rule without proper basis, the government substituted the criminal warlordism of the Ampatuans with its own unlawful warlordism.

The people should not stand for that kind of an illegal conduct. The government cannot engage criminals "tit for tat". The government can only respond against criminality by using the Rule of Law, following its requirements and acting within the bounds of civilized enforcement of the law.

Otherwise, the government acts like the criminals it is supposed to suppress pursuant to the law.

Opinions have been expressed that rebellion in the Constitution may be differently interpreted from rebellion in the Revised Penal Code.

Non-self-executory

I beg to disagree. Constitutional provisions are not self-executory. When it speaks of rebellion, it must be understood to mean the rebellion that is defined in the Revised Penal Code as amended particularly under Republic Act No. 6968.

Lest we be misunderstood that we are backing up Governor Andal Ampatuan and his son, Andal Jr., for the gruesome deed described earlier, he and his son and those who acted on their orders or in conspiracy with them should be brought before the bar of justice according to existing law even without martial rule being proclaimed or being set in place.

They could have been suspended, disarmed, arrested, investigated prosecuted and convicted according to law without martial rule.

And if the suspension, disarming, arresting, investigating, prosecuting and convicting of the Ampatuans was deemed impossible to do simply by sending a sheriff to serve the pertinent orders on them, then, a battalion of law enforcers could have been mobilized to effect the proper warrants under the President's authority to call on the armed forces to implement the authority of the government.

However, the government has done what it did: proclaimed martial rule over Maguindanao.

It has accomplished through methods of martial rule what could have been done without it.

The Ampatuans - Governor Andal, Mayor Andal Jr., and even Zaldy, the governor of the Autonomous Region of Muslim Mindanao are now under the custody of the military or police authorities.

Their palatial mansions were raided. Guns, ammunitions, election paraphernalia reportedly including ballot boxes and other electoral papers, and for all I know cash in the millions were also confiscated.

Dead horse

There is therefore no need to continue beating a dead horse. Still an autopsy of the dead horse may still be in order. The autopsy may reveal unsavoury truths about the dark side of the tyrannical rule of the Ampatuans abetted by powerful hands of government officials and now supplanted by the nebulous concept of a state of emergency.

The people want to know the truth of what happened to the Ampatuans and their weapons and wealth after the law enforcers were through with them pursuant to the mandate of martial rule that they were following. Silencing truth

Will the truth come out? Soon or ever? I am not too sure about that.

For one thing, the unstated main target of martial rule is to silence the truth.

The truth about the collusion between the Ampatuans and Gloria Macapagal Arroyo in frustrating the will of the people in the elections of 2004.

The truth about the symbiotic relationship between the Ampatuans and the Gloria Macapagal administration to suppress the electoral will of the people of Maguindanao in the 2007 elections.

The truth about the scratch-my-back-I-scratch yours kind of liaison between some highly placed officers of the armed forces and the police that made the Ampatuans, the most feared warlords of the area. In the process, for example, government-issued thousands of high-powered guns and ammunition and reportedly even armoured vehicles found their way into the hands of the Ampatuans.

Power and wealth

And with so much power, so much wealth poured into the pockets of the Ampatuans. This is evidenced by widely circulated mass media reports that the Ampatuans have 27 mansions in many places in the country.

Innocent victims

Moreover, under the circumstances, I am certain that many innocent people were harassed by the enforcement of martial rule in the province. I would like to know how many people were arrested under the martial rule proclamation? Who are they? Why were they arrested? Where are they detained? And since when?

Under martial rule, what chance did the ordinary man on the street in Maguindanao have to contest, for example, his arrest and detention on the mere say so of a law enforcer?

Go to court, one can say. So easily said. So difficult to do if one is poor, powerless and ill-connected.

Will we ever know the truth about the way martial rule had been implemented in Maguindanao?

Most likely we will never know the whole truth especially about the violations of human rights that follow from the use of such enormous power by a President who from all indications does not care about the niceties of the law.

Welcome step

And I speak from experience. Having been arrested and detained four times during the martial rule of the Marcos regime, I can say with some degree of authority that the lifting of the martial rule in Maguindanao is a welcome step towards the restoration of civilian government, the Rule of Law, and respect for the human rights of our people.

Still, I am apprehensive that the lifting of martial rule in Maguindanao may only be a ploy to assuage the people that law and order have been restored to the province. Because Executive Secretary Ermita has emphasized the lifting of martial rule will not affect Proclamation 1946 that declared the existence of a state of emergency in the province of Maguindanao, in the City of Cotabato and the province of Sultan Kudarat.

Legerdemain

Now what kind of legal legerdemain is the President engaging in now? She says she has lifted the martial rule proclamation 1956 but that the state of emergency proclamation 1946 covering the province of Maguindanao, the City of Cotabato and the province of Sultan Kudarat remains.

Was the placing of those two provinces and one city under a state of emergency proclamation valid?

Two provisions

There are two constitutional provisions governing the proclamation of a state of emergency in the country, and these are the following:

I. ARTICLE VI, SECTION 23, PARAGRAPH 2 OF THE 1987 CONSTITUTION; and

II. ARTICLE XII, SECTION 17, 1987 CONSTITUTION:

Discussion

Article VI, Section 23, paragraph two provides that: (2) In times of war or other national emergency, the Congress, may by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by a resolution of the Congress, such powers shall cease upon the next adjournment thereof. Thus, the conditions for the grant of emergency powers to the President are:

a) The existence of war or other national emergency; b) The authority to exercise emergency power must be done pursuant to a law enacted by Congress; c) The exercise of such power must also be in accordance with a declared national policy; and d) The exercise of the emergency power must be for a limited period and subject to such restrictions as may be imposed by Congress.

The President can therefore, exercise the emergency powers granted to her by law only during the period as fixed in the law itself and maybe revoked sooner pursuant to a joint resolution of Congress. In any case, such power shall cease ipso facto upon the next adjournment of Congress.

The clause that provides that such power shall cease ipso facto upon the next adjournment of Congress simply means that on the adjournment of Congress, the emergency powers granted to the President is terminated unless it has earlier been withdrawn.

Undue exercise

Using the above mentioned requirements of the Constitution, the declaration of a state of emergency under Proclamation 1946 covering Maguindanao, Cotabato City and Sultan Kudarat appears to be an undue exercise of a presidential power.

There is no war in the local government areas placed under a state of emergency unless one considers the MILF rebellion as the cause of it. The government, however, excludes it vehemently to the extent that in the proclamation of martial rule over Maguindanao, Executive Secretary Ermita took pains to delete what he thought was an offensive statement on the existence of a secessionist movements in the province.

To be valid, the delegated authority to the president must be based on either of the two concrete circumstances mentioned in the Constitution: A) in times of war; or B) in times of other national emergency.

If either or both circumstances are not present, any grant of authority to the President to exercise an emergency power is unconstitutional and void.

When there is no national emergency upon which the delegated authority was predicated, not even an act of Congress can validate the exercise of the emergency powers of the President.

Private utilities

The other article of the Constitution that deals with emergency powers is:

ARTICLE XII, SECTION 17, 1987 CONSTITUTION: Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

This article and section of the Constitution are even more inapplicable to the situation in Maguindanao, Cotabato City and Sultan Kudarat. As these provisions deal only with the necessity of the State's taking over temporarily the operation of privately-owned public utility or business affected with public interest in times of national emergency and when public interest so requires it.

To reiterate, there is no national or local emergency of the magnitude that public interest should require government to take over temporarily any public utility or business.

The leading cases of David et al vs Macapagal-Arroyo G.R. No. 171396, Cacho-Olivares, et al vs. Ermita, et al G.R. No. 171409, and the consolidation of 5 more cases (May 3, 2006) are instructive on the issue of when a state of emergency exists.

Defining state of emergency?

In the case of David et al vs Macapagal-Arroyo G.R. No. 171396, Cacho-Olivares, et al vs. Ermita, et al G.R. No. 171409, and the consolidation of 5 more cases (May 3, 2006), the Supreme Court defined Emergency as:

"Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception. Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of situations, classifiable under three (3) principal heads: a) economic, b) natural disaster, and c) national security.

Under US jurisprudence, the emergency may arise from (a) economic, (b) natural disaster, and (c) national security.

None of the three conditions existed in Maguindanao, Cotabato City and Sultan Kudarat when the State of Emergency was proclaimed by the President. The only remote justification for the proclamation could be National Security but that may be justified only when one factors into the circumstances the rebellion of the MILF. But as previously mentioned, the authorities, however, had taken pains to delete the word 'secessionist' in the Martial Rule Proclamation 1956 in order to exclude the existing rebellion of the MILF from its coverage probably out of extreme caution so as not to drag the Moro rebel forces into the fray.

In the words of Justice Isagani Cruz: "Emergency," as contemplated in our Constitution, ... may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. Cruz, Philippine Political Law, 1998, p. 95.

Of the causes enumerated by Justice Cruz, again only rebellion could be used to justify the proclamation of the state of emergency in the local government units concerned but only if the MILF secessionist war is factored into the circumstances.

Records

This is evident in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committee's definition of "national emergency" which appears in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government service. Record of the Constitutional Commission, Vol. III, pp. 266-267. ]x x x x x x

MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

Supreme Court's view

It may be argued that when there is a national emergency, Congress may not be able to convene and, therefore, unable to delegate to the President the power to take over privately-owned public utility or business affected with public interest."

We take note of the Supreme Court explanation:

"Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof.

x x x x x

"... without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress."

Distinction

Distinction between ARTICLE VI, SECTION 23, and ARTICLE XII, SECTION 17 of the 1987 Constitution:

"Section 23, Article VI of the Constitution reads:

SEC. 23. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof."

"It may be pointed out that the second paragraph of the above provision refers not only to war but also to "other national emergency" to take over public utilities or businesses affected with public interest."

In my view, even if the Constitution does not provide that Congress should first authorize the President before he can declare a state of national emergency, the thing is that the president can only do so to pursue a declared national policy. And the declaration of a national policy is a function of Congress as the policy determining body of the government.

Congressional function

The Supreme Court has emphasized that in "the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress."

Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers".

"Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress. [9][124]" Cruz, Philippine Political Law, 1998, p. 94."

End State of Emergency All circumstances considered, it is submitted that it is in the national interest that since martial rule has been lifted, it should follow that even the state of emergency proclamation should likewise be revoked. If it is not revoked, the human rights of the people in the areas shrouded by the proclamation of a state of emergency are covered by the haze of the supposed state of emergency that is not even sustained by the circumstances on the ground.

Bill of Rights undermined? To be more specific, what happens now to the provisions of the Bill of Rights of the Constitution concerning the following matters?

1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the law.

2. The right of the people to be secure in their persons, houses and effects against unreasonable searches and seizures of whatever nature shall be inviolable.

3. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

5. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health as may be provided by law.

6. The right of the people to information on matters of public concern shall be recognized.

7. The right of the people ... to form unions, associations or societies for purposes not contrary to law shall not be abridged.

8. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

9. Rights of persons under investigation: a) right to be informed, b) right to remain silent and have competent and independent counsel preferably of his own choice.

10. Right against torture, force, violence, threat, intimidation, or any other means which vitiate the free will.

11. Right against detention in secret places, solitary confinement, incommunicado, or other similar forms of detention.

12. Right to bail. Even when the Writ of Habeas Corpus is suspended.

13. Right to due process.

14. The Writ of Habeas Corpus shall not be suspended

15. Right to speedy disposition of cases

16. Right against self-incrimination

17. Right against degrading punishment: physical, psychological, degrading punishment, subhuman jail conditions

We still do not have the answers to the questions i pose. Indeed, we may adjourn but for the sake of truth and transparency and to assure our people that all is well, let the authorities reply in this forum if possible or in another forum if necessary.

Uphold Constitution

But let us not make the lives of our people in Maguindanao, Cotabato City and Sultan Kudarat more complicated than it already is.

Let us not allow the sins of one Moro family adversely affect the rights and liberties of the rest of the Moro peoples, the Christians and the Lumads of Mindanao.

Let us uphold the Constitution and respect the law. Restore civilian rule in Maguindanao, Cotabato City and Sultan Kudarat. Let us revoke the proclamation of the State of Emergency now before the human rights, the civil liberties and the democratic freedoms of our people are sacrificed on the altar of expediency or personal agenda of those in power.

Thank you.