Press Release
December 7, 2009

Transcript of Sen. Santiago's interview

On Congress going into joint session tomorrow to deliberate on the proclamation of martial law

If the Congress gets bogged down in the deliberations in the proclamation of martial law it is possible that the proceedings in the budget might be delayed. If that is so, by January 2010 we will be operating on a reenacted budget, and that means that instead of Congress determining how much money will go to which agency, it will then be the Office of the President that will determine where the savings from the last budget will be going. That is why it is necessary for Congress, in order to preserve its power of the purse to finish immediately the deliberations on the martial law proclamation.

I regret very much, even as an administration ally, that tomorrow at the joint sessions I will have to vote to revoke the proclamation. Number one, the Constitution is clear. When the Constitution is clear, there is no room for statutory constitutional construction. In effect, the proclamation written by the president's legal advisers is an interpretation of an already existing constitutional provision. That is not allowed. I will have to call that "creative constitutional construction". The provision says that the president can proclaim martial law only when there is a rebellion. If you read the "Whereas" part of the proclamation, you'll notice that it is laying the groundwork on the premise for a possibility of rebellion. In other words, it is incurring in the reader the anticipation of a possible rebellion that might occur but in the near future. The rebellion has not occurred.

Plus, the Penal Code defines rebellion as a crime committed by persons that publicly take up arms against the government with the purpose of removing allegiance to our government in any of the following: any part of our territory, any part of the armed forces, or any part of the executive power, or any part of the legislative power. So I ask the television audience, Have you seen any footage of people in Maguindanao rising up publicly, armed, and proclaiming that they are trying to get the allegiance of the Filipinos in Maguindanao from our own elected government or trying to acquire for themselves part of the Philippine territory, or a part of the armed forces, or exercising part of the executive or legislative powers that are given to the proper authorities under our Constitution? I never saw that. So, if we have not seen those things, there is something wrong with the optics of the officials who advised President Arroyo. They are seeing ghosts. They are claiming a facility which is not granted to ordinary people like you and me. To see ghosts where other people see nothing is a talent in itself. Unfortunately, it is not admired by Philippine society after its experience with martial law. That is the problem. There is no reality to the facts as they exist today, and the arguments posed have no relation to Constitutional law. The US Constitution does not include a provision on martial law. Our Philippine Constitution, initially patterned after the US Constitution, included a martial law provision for the sole reason that at that time we were a colony of the United States and we were under a commanding general of the colonizing power. That is why the Americans insisted on putting a martial law provision in our 1935 constitution so they could have additional powers to subdue the indios at that time. So I don't even see why there should be a martial law provision no matter how watered down the version is under our present constitution. This is a colonial institution that should never have been included. But since it is already there, you'll notice that for us in Congress to be able to revoke the proclamation, we will need a majority of all members of Congress, which means one half of the total number�all the members of the House of Representatives plus all the members of the Senate, divided by two, plus one. That should be 146 votes. Assuming arguendo, that the entire Senate tomorrow, all 23 of us, vote to revoke, still that is of no moment; the Senate vote will be useless because what we need is 146 votes. And just to not put too fine a point on it, nonetheless, if the House of Representatives want to uphold the larger law provision, we will get direct flack for it. All they have to do is simply be absent, or as is tradition in Congress, they can just stand up to the microphone and say "I do not cast a vote." We will never be able to raise 146. So in effect, tomorrow Congress will not revoke the proclamation. It's not that dangerous as it is, but it might be dangerous as a precedent; it might serve as a bad example for future instances.

And pursuant to the presumption in the Rules of Court, I am perfectly willing to grant President Arroyo the presumption of good faith. However, although it is in good faith, the method she has chosen is without consonant with the Constitution. You cannot manufacture a rebellion on paper. You have to go to the ground and see people rising publicly in arms. What you have seen are photos of 57 corpses, and therefore I have suggested repeatedly that the charge should be terrorism, not multiple murder. If they were to charge these people with rebellion, as it seems to be the case, then they will in the final analysis suffer a penalty lower than that for multiple murder. And remember there is a suggestion that rebellion is a political crime, then the perpetrators would qualify for pardon or amnesty. However, it is necessary that the political crime should be ideologically motivated. These people have not even expressed any semblance of ideology, and therefore they cannot even be considered political offenders. They should just be considered terrorists out and out, and our jurisdiction considers terrorists as criminals. They are in effect treated as "megacriminals." So it is not even worth the effort of going to the Senate, but again, it might be happy hour so that I can educate the members of the House of Representatives on their historical mistake.

If Congress tomorrow, swamped by the votes of the representatives, we will not be able to raise a majority vote, then the emergency martial law administration will proceed. Then the next step will be for her critics to file a case before the Supreme Court. The Court will then go to the factual basis for the proclamation of martial law. But I doubt very much there is going to be any intelligent report or any other confidential report that will convince the judges sitting in the Supreme Court that there is actual public rebellion taking place right now. There is a good case to be made for the fact that possibly in the near future rebellion will be undertaken because we've these caches weapons, but the Constitution is not concerned with what is going to happen tomorrow. It is only concerned with today. Today there is no rebellion, so we do not comply with the strict requirements of the Constitution. That is the problem of the administration.

If there aren't going to be miracles tomorrow, we will only be party to what is already a doomed scenario. The Senate is doomed. We are only given the power to revoke; if we don't revoke, then it continues for 60 days. After the 60th day, again we possess power to extend. If the Senate intends to block the extension, still we will be defeated at the hands of the representatives.

The imposition of martial rule will go on for 60 days, then the next threshold question will be "Shall we extend it?". Of course if they already got the proper vote, then they will get an extension if they win.

I am also voting to revoke because at present the president already possesses sufficient power to meet the emergencies raised by the Maguindanao massacre. She is already commander-in-chief; if you are commander-in-chief, you just go down the line and hit on the head with the butt of your rifle every general you can and say "Why don't you do your proper jobs?", "Why do I have to do this?", "Why did you ever allow the situation to develop into critical proportions?". Ano sila, mga duwag? Takot silang lahat eh. Either takot sila o binayaran sila.

Basically, if we go deeply into this matter, that is all what martial law means in the Constitution after Marcos. It simply means that the president calls out the armed forces. Martial law does not stop the Constitution from operating or the civil courts from continuing to adjudicate cases. It does not grant the president any additional power, except the already-granted power of calling out the armed forces and exercising her powers as commander-in-chief. So when the president martial law, she is in effect admitting that she failed as commander-in-chief or she failed to call out the armed forces, or that they wish not to obey her. Her adviser should have thought that possibility.

Martial law basically means the law by the military because the civilian authorities are no longer functioning. It was actually a concept borne out of the need for government to function while under attack by a foreign state since the civilian population can no longer handle the crisis. But in our case because of the Marcos experience, our Constitution watered down martial law that it no longer mean anything except the power to call out the armed forces or for the president to exercise her power as commander-in-chief. The presidential advisers should have thought of the implications of this proclamation of martial law. They should not have rushed into the matter. They should, if they were proper politicians in the best sense, have consulted with the leaders of both the Senate and the House and asked how their constituents or members feel about this. They should be taken out and shot. They should be buried with a backhoe.

On the report that the courts in Maguindanao were not functioning?

It is true every judge gets afraid of some major criminal; it becomes a matter or conquering your fear. According to the Supreme Court, there is a fair judge or at least there is a judge from a neighboring province that is willing to go and issue orders, and the Supreme Court will give him the proper authority. That puts an end to the argument that there are no courts functioning. The Supreme Court said that their courts are functioning. There are many judges who refuse to open court sessions because they are afraid to say anything for or against the warlords, but they are able to convince at least one judge in the neighboring province.

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