Press Release
December 14, 2009


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

Considering that the declaration of Martial Law has been lifted before I had the opportunity to interpellate, I would like to put on record my position.

In my opinion, the President committed grave abuse of discretion in declaring martial law without basis of an existing rebellion or invasion on the following bases:

1. Article VII, Section 18 of the 1987 Constitution has laid down very strict requirements before Martial Law can be declared. The provision is clear: martial law can only be declared in cases of (1) invasion or (2) rebellion, and only when public safety demands. Clearly, the first ground does not apply, as there is no entrance of an armed force into the Philippines for purposes of conquest.

2. Article 134 of The Revised Penal Code, as amended by RA 6968, laid down the elements of the crime of Rebellion. A perusal of the deliberations on the 1987 Constitution showed that the framers alluded to Rebellion as defined in the Revised Penal Code. The essence of this crime is a public uprising with the taking up of arms. It requires a multitude of people, it is a crime of masses. The purpose is always political. It aims to overthrow the duly constituted government. In the Maguindanao situation, there are no reports of any public uprising when the proclamation was made. In fact, even Sec. Ermita said in this chamber that, "You may be correct there was no actual rebellion going on but all indications on the ground indicated inability of authorities to undertake their duties." This is the very basic distinction between Rebellion and Sedition-- the object at which the uprising aims. Going by the statement of Sec. Ermita, the purpose of the uprising falls within Art. 139 (2) of the RPC -- to prevent the National Government, or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions. This is Sedition, and it is not a ground for the declaration of Martial Law. The courts are functioning, as stated by the spokesperson of the Supreme Court. The glaring example given by Sec. Devanadera, the refusal of the Civil Registrar to issue death certificates, this is not a ground for the declaration of Martial Law.

3. It can very well be noted that the framers intended to make martial law as rare an occasion as possible, subject only to the most stringent of requirements and the most protective of safeguards. Even if it finds basis in one of the two grounds, it is only when public safety requires it that such proclamation can be justified. And while ongoing, it did not take away the application of the Constitution, contrary to what our Acting Secretary of Justice previously said that warrantless arrests and searches and seizures without warrants are now allowed under Martial Law.

The Constitution has given the President, the Chief-of-Staff of the Armed Forces of the Philippines, three powers of graduated intensity, to use in cases of public disorder:

1. to call on the Armed Forces to suppress lawless violence or rebellion;

2. to suspend the privilege of the writ with respect to specific crimes; and

3. to impose martial law over the Philippines or over any part thereof.

I submit that the ordinary executive power and the extraordinary power to call on the Armed Forces to suppress lawlessness is enough to address the delicate situation in Maguindanao, the so-called "looming rebellion". As there was yet no actual rebellion, there was no basis to declare Martial Law. The Armed Forces of the Philippines and the Philippine National Police could've continued to keep the situation under control, with due regard to the limitations under the Constitution, even without the declaration of Martial Law. Though the declaration of Martial Law does not give additional powers to the Executive to suspend the Bill of Rights, this 3rd option shall be used sparingly, and used carefully.

In the US Landmark Case Ex parte Milligan, 71 U.S. 2 (1866), The Supreme Court ruled that Pres. Lincoln's imposition of martial law (by way of suspension of habeas corpus) was unconstitutional. "Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction."

The factual circumstances all bear to a conclusion that the declaration of Martial Law was an excess of power and an abuse of power. It does not have a basis in fact nor in law.

Should the revocation of the declaration of martial law under Proclamation 1959 have been put to a vote, I would have voted no.

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