Press Release

December 9, 2009

REVOKE MARTIAL LAW IN MAGUINDANAO

By Sen. Miriam Defensor Santiago
(Explaining her vote at the Congress joint session on 9 December 2009)

Mr. Senate President, Mr. Speaker, and distinguished colleagues:

Today, we make history. For the first time, all three branches of government will implement the
constitutional provision on martial law.1 What we in Congress do today could serve as precedent for
generations to come. Ladies and gentlemen of the Congress, we are eyeball to eyeball with history.

We start with certain premises. One premise is that a question of law should not be considered as a
question of wisdom. Law, particularly the Constitution, is supreme. Dura lex sed lex: the law is law. The
law must be upheld, even if it entails heavy sacrifices. Another premise is that, reading the Constitution is
not a mere function of literacy. Reading - and much more, construing - the Constitution is a technical
skill. We have to follow the rules of constitutional construction, collected from various Supreme Court
decisions over the ages.

The primary aid to constitutional construction is the language of the Constitution. Its words must be
given their ordinary meaning. The primary objective is to carry out the intent of the people who ratified
it. As the Supreme Court ruled: "The Constitution does not derive its force from the convention which
framed it, but from the people who ratified it." 2

The intent of the people is gleaned from what the Germans call Zeitgeist, or the spirit of the age. In
1986, the people wanted an extremely restricted system of martial law. I humbly submit that the temper
of those times provides the necessary corollary that in case of doubt, the doubt should be resolved
against martial law.

Failure to Meet Test for Martial Law

We are here dealing with martial law, which is not formally defined by the Philippine Constitution, and
which is not even mentioned at all by the U.S. Constitution, which serves as our template. I will use this
1940 definition: 3

"Martial law is the public law of necessity. Necessity calls it forth, necessity justifies its exercise, and
necessity measures the extent and degree to which it may be employed. That necessity is no formal,
artificial, legalistic concept but an actual and factual one: it is the necessity of taking action to safeguard
the state against insurrection, riot, disorder, or public calamity. What constitutes necessity is a question
of fact in each case . . . .

"Martial law is the public right of self-defense against a danger threatening the order or the existence of
the state. When the ordinary civil authorities - the police - are unable to resist or subdue a disturbance,
additional force, military in nature, may be applied. The extent of military force used depends, in each
instance, upon the extent of the disturbance."

Hence, I humbly submit this general test for constitutional martial law: Is martial law a necessity for the
existence of the state? The answer is "No." I further submit this particular test: Is there an actual
rebellion, and does public safety require martial law? Again, the answer is "No."
The Constitution imposes two conditions for martial law: there should be a state of actual rebellion; and
public necessity requires it. These conditions do not exist today.

The First Condition: Actual Rebellion

The Penal Code defines the crime of rebellion as: "rising publicly and taking arms against the Government
for the purpose of removing from the allegiance to said Government or its laws, the territory o f the
Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces, or of
depriving the Chief Executive or the Legislative, wholly or partially, of any of their powers and
prerogatives."

In other words, rebellion is open, organized, and armed resistance to established government. If there is
such a rebellion, why have we never seen any such footage in the TV newscasts or on the internet? Are
we now adopting the new concept of a secret rebellion? That would be a contradi ction in terms, an
oxymoron, like a woman who is secretly pregnant.

Proclamation No. 1959 (here known as Proclamation) does not even claim that there is a state of actual
rebellion. This in itself is a fatal flaw. Instead, the Proclamation claims that "heavily armed groups in the
province of Maguindanao have established positions to resist government troops." The Constitution does
not impose the condition that heavily armed groups have established positions to resist. The Constitution
imposes the condition that there is an actual rebellion. Thus, the Proclamation does not comply with the
first condition.

Furthermore, rebellion is a political offense, not a common crime. The essence of rebellion is ideological
motivation, meaning the advocacy that the existing government should be destroyed, by removing citizen
allegiance. I respectfully point out that where there is no ideological motivation, there is no rebellion. As
explained by a 1995 Supreme Court decision: 4

"By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action which
cannot be confined a priori within a predetermined bound. Its gravamen is an armed public uprising. One
aspect noteworthy in the commission of rebellion is that other acts committed in its pursua nce are, by
law, absorbed in the crime itself because they require a political character.

"If no political motive is established and proved, the accused should be convicted of the common crime
and not rebellion.. In cases of rebellion, motive relates to the act, and mere membership in an
organization dedicated to the furtherance of rebellion would not, by itself, suffice. The crime of rebellion
carries a lighter penalty than murder. Thus, it is imperative for our courts to ascertain whether or not the
act was done in furtherance of a political end. It is not enough that the overt acts of rebellion are proven.
Both purpose and overt acts are essential components of the crime." (Emphasis added.)

The Second Condition: Public Safety Requires It

The Constitution does not define "public safety," although it also uses this term to restrict the right to
travel. In the light of this lacuna in the law, I humbly submit that the emphasis should be on the public
nature of safety. The term "public" refers to the people of a nation or community as a whole.

But crimes committed by warlords against each other are basically threats to the safety only of their
respective camps. What they constitute are not threats to public safety per se, but acts of terrorism,
defined by law as the commission of a major crime, "thereby sowing and creating a condition of
widespread and extraordinary fear and panic among the populace, in order to coerce the government to
give in to an unlawful demand."
The Proclamation, unlike its omission to use the word "rebellion," does use the term "public safety," but
in a way that, out of kindness, I shall call a non sequitur, or a conclusion that does not logically follow
from its premise. The Proclamation claims that "the local judicial system and other government
mechanisms in the province are not functioning, thus endangering public safety." I am so not
understanding this! When government collapses, we call that anomie, not a threat to public safety!

Supreme Court is Last Resort

In the nature of democracy, party politics will intrude on this debate. If we in the Senate fail to convince
our colleagues in the House, then we are a sinking ship, and we will go down with this political Titanic.
But the debate does not end here. It will go on to the Supreme Court. I take the attitude that the legal
problem posed by martial law is not civilian control over the military, but judicial control over the
executive and legislative branches' delegation of authority to the armed forces.5

For my part, I do not see martial law as a new order of society in Maguindanao or the ARMM. Martial law
is the future refusing to be born. I vote to revoke martial law.

ENDNOTES

1 Constitution, Article 7, Section 18..

2 IBP v. Zamora , 331 SCRA 81 (2000)

3 Federich B. Weiner, A Practical Manual of Martial Law, 16-17 (1940).

4 People v. Lovedioro, 250 SCRA 389 (1995)

5 Michael F. Noone, Jr., "Martial Law" in The Oxford Companion to American Law, 545-546 ( Oxford
University Press: 2002)