Martial law confrontation in Congress

I. The documents

To help readers follow tomorrow's debates, reference to some documents are in order and some issues that might arise.

First, some background readings on martial law. There's Fr. Joaquin Bernas' July, 2009 series, What is martial law? (1) and What is martial law? (2) and here is a portion of the Records of the Constitutional Commission of 1986, in which Commissioners discussed what would constitute rebellion: should it require overt acts or could the chief executive act on a perceived danger or risk of a rebellion?

Record of the Constitional Commission, Vol. II, Pp. 411-413

Then there is the President's Proclamation 1959, which imposed martial law on Maguindanao except for MILF camps in the province. The document itself was marred by a typographical error, see Raissa Robles' blog for details.

Then there's the President's Report to Congress, in compliance with her constitutional obligation to submit a report to Congress within 48 hours of martial law or the suspension of the writ of habeas corpus being proclaimed (she did both).

PGMA Report on Proclamation No. 1959

Congress, acting as one body (tomorrow's session will be like reliving the Batasan Pambansa of the Marcos years, with many of the same characters) will be tasked with approving, rejecting, or modifying the President's martial law proclamation and her suspension of the writ. The Supreme Court for its part, tasked with evaluating the factual basis for the proclamation has already manifested, through its spokesman, that it contests one of the President's assertions (see SC contradicts Palace on judiciary in Maguindanao).

Winnie Monsod herself, tackles other assertions made in the report:

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II. The issues

A good summary can also be found in Business Mirror's Government's basis for martial law,

The first issue is whether the President was correct in imposing martial law. As a believer in the interplay of two court -that of the Court of Public Opinion and the Court of Law- I believe everyone, from the Executive to the Legislative to the Judicial Departments are taking the Court of Public Opinion into consideration as this is plays out both in Congress and in the Supreme Court. My view is that public opinion is divided, and that even those who approve of martial law in Maguindanao are careful to point out theirs is a conditional support: it shouldn't be extended, either in terms of the 60-Day timeframe imposed by the Constitution, or in terms of territory; and most definitely, should not be used to help keep the ruling coalition in power or to expedite amending the Constitution.

The debate on the question of whether the President was correct in imposing martial law in turn seems to be focusing on two things. First, whether the President's actions were in keeping with the situation on the ground: was martial law the only recourse or the correct action to undertake? And second, whether her decision complied with relevant laws: the Constitution as the basic law and the Revised Penal Code which defines rebellion. Lawyers are wrangling on whether rebellion actually took place, or even if it did, when it began.

Here's Atty. Edwin Lacierda summarizing this issue:

For example, Jesus Dureza's four-day Maguindanao diary contains two items that could either weaken the administration's assertion of rebellion or strengthen it, both from the same day, "D-DAY, Nov.26 (Thursday)":

6:00AM-Early morning, government forces took over and occupied the ARMM facilities and other buildings and premises in Maguindanao province. Armed elements loyal to the Ampatuans were taken by surprise and gave up their firearms without resistance... 11:40AM, Helis took off enroute Gen Santos City... But again something happened. About a few minutes airborne and while still climbing and gaining altitude, I first noticed some flapping sound outside. I thought, maybe some loose parts of the chopper. The noise kept coming, intermittent. I looked down and maybe I saw flashes but I was not sure. Suddenly the Huey banked sharply to the right and simultaneously, several short bursts from our two Huey gunners at the back. The bursts startled all of us. The evasive maneuver by the pilot also jarred us. All of us kept our heads low as the Huey steeply climbed. My staff Jerry and Col Mac who were seated beside the open Huey doors ducked. The soldier at the back shouted, "ground fire, sir". We still climbed. The flapping sound from outside could not be heard anymore. The gunners later told me ground fire sounded like flapping from the air. The evasive action and the machinegun bursts were SOP. At 2,000 feet altitude, we cruised. That's when I saw on the Huey floor an empty shell from the bursts of the M-60 machinegun on board. I picked up the empty shell, then pocketed it for good luck.

(See also Teodoro forewarned of 'massing' by Ampatuan followers: it will be interesting to see whether the public decides to focus on his, so far, unnoticed role in the whole thing, from the time he tried, and failed, to broker peace between the rival clans)

Fr. Joaquin Bernas in his Monday column What powers can the President use? believes in both forums (Congress, whether it decides on the basis of law, or administration opinion, or public opinion; and the Supreme Court deliberating on the basis of facts and law) that,

In the face of all this, the President has chosen the martial law option. I do not see either the Supreme Court or Congress revoking her decision now. Moreover, if she asks for it, Congress can extend martial law beyond 60 days.

He suggests that the Revised Penal Code isn't necessarily the sole basis for determining if rebellion took place in Maguindanao:

The Penal Code says: "The crime of rebellion ... is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives." If the Penal Code is to be followed, the government would have to show that what is happening now satisfies the definition of rebellion as a criminal act. A crucial fact to verify would be whether there has been and there is an ongoing "rising publicly and taking arms against the Government" to achieve at least one of the enumerated goals. But is rebellion as a criminal act defined in the Penal Code the same as rebellion for constitutional law purposes? My view is that it is not. My view is that the requirement of "rebellion" for purposes of constitutional law is satisfied if there exists an armed force whose activities have the effect of preventing the government from implementing its laws in any part of the Philippines.

On the other hand, Atty. Edwin Lacierda, in an open letter to fellow lawyers who graduated from the Ateneo de Manila University, believes that Fr. Bernas has modified his past opinions and that his present views don't bode well for securing justice for the massacre victims:

This opinion is dangerous! First, any public official with his security escorts who is not happy with a government sanction, barricades himself in his provincial building and prevents government work without claiming to have disowned allegiance to the Republic can now be charged with the crime of rebellion and not merely sedition. Second, it is elementary that in a criminal case, one has to prove all the elements of a crime. Otherwise, the case will be dismissed. In Bernas' opinion however, even if the Ampatuans do not remove their allegiance from the government, there is already a case for rebellion. But that will not wash in the courts. If there is no proof that Ampatuans have seceded from the Republic, there will be no case for rebellion and the charges will be dismissed. And last night, I understand that they have professed their loyalty to the Republic and to GMA. So, where is the rebellion insofar as the criminal prosecution is concerned? A Motion to Quash will be sufficient to dismiss the case.

Which brings us to the second issue: whether the President's proclamation of martial law will help propel what most people really want: justice for the victims in the Ampatuan Massacre.

The recent acquittal of Nur Misuari whose attack on the military and civilians in 2001 led more than 100 people dead, brings up anxiousness in some quarters that rebellion charges might lead to murder charges for the Ampatuan Massacre being subsumed and if the government case for rebellion ends up dismissed, it will result in the murder charges being dismissed as well. The Department of Justice claims this won't be the case. The Justice Secretary, however, while forcefully insisting she wouldn't merge the charges during the FOCAP press conference yesterday, afterwards publicly mulled over the implications of the massacre taking place as part of a rebellion: in that case, she opined, the murder charges would be subsumed into rebellion charges.

This will be tricky going for the government. Talking to foreign correspondents, Interior Secretary Puno was emphatic about negotiations still continuing to bring the Ampatuans back within the fold of the law and allegiance to the government; the resolution of a political problem, however, brings up troubling questions of whether this would be at the cost of prosecuting the Ampatuans for murder. Much depends on what the eventual government timeline for events is, hence my pointing out Dureza's diary and the failed Teodoro negotiations with the clans and tip-offs of what they were up to.

The clan patriarch, Andal Ampatuan, Sr. was whisked away from a private hospital to a military one, and remains in government custody, which has the added benefit of his being unable to reach the media. This is relevant not in terms of prosecuting murder, but in terms of his being incommunicado offering the government the comfort of knowing he can't spill the beans on certain aspects of the formerly close relationship between the Ampatuans and the President, the military, and the police; neither can the clan comment on what, exactly, is revealed (or suppressed) in terms of the raids on their various properties.

III. What's at stake

My own views are outlined in my columns, A necessary provocation, Caught in the act and Playing to the gallery, and this previous entry, Outflanking her enemies (June, 2009) . I consider the "analysis of the Ampatuan massacre" by Bertini "Toto" Causing as extreme and improbable in terms of it's neatly tying everything together. But still, Philippines faces tough questions over alliance with warlord as an Agence France-Press report points out.

I'd like to share a summary of opinions I got from contacts in the ARMM, and they basically amount to this: the region has been under martial law for forty years, and the clash between the government and the Ampatuans has more to do with power blocs colliding and less with ordinary Moros who are trying to keep from getting trampled in the tussle. That securing justice will be thwarted if government's solution to slaying the monster it created, is to then anoint a successor to the Ampatuans as paramount warlord clan.

Gail Ilgan, in Disarm the dangerous, pointed out her misgivings about demands for immediate action and by the military, to boot (pardon the pun):

I believe TV, radio, and newspaper personalities who are weighing in on this matter should disclose their personal assumptions on institutions they trust and not trust that warrant their goading the military to do police functions. They should come out and say that they do not believe the PNP to be up to the task and that is why they insist for the soldiers to take a more proactive role beyond the Army's show of force in Sharif Aguak that is intended "to provide ready support to the police in the eventuality of the outbreak of violence." Of course, we all understand that TV, radio and newspaper personalities are cautious about coming out to say that police credibility at this moment is below sea level and that arresting the Ampatuans is a job they expect the military to do. And I do not believe it's because of their ignorance about the distinction between police and military functions. Or is it? They're pussyfooting on their assumptions that Maguindanao's Finest is incredible because such would logically lead to publicly advocating for the declaration of martial law in Maguindanao. Martial law anywhere in these islands is a specter no self-respecting media practitioner in the human rights age would openly suggest to bring back. But reading between the lines, martial law in Maguindanao is what these TV, radio, and newspaper personalities feed to the public as the appropriate course of action in order to "arrest them all" and make the rest of us feel at peace. We want peace, no arguments about that. Personally, I agree that the best way to do it is for all of us to recognize the Highlander rule: There can only be One. There should only be one armed force in these islands. Every other armed force has to disarm or be disarmed for peace to a reality.

In Martial law in Maguindanao: The genie is out, ANC's Glenda Gloria ponders the implications of the military stepping in:

It is easy to romanticize martial law, especially when it covers a limited area, as something the government must do to finish off a clan and bring to justice those responsible for the worst crime ever committed against non-combatants in recent history. It is also easy to forget what--or who--really gets empowered by martial law. It is certainly not the judiciary, or a Cabinet department, or the barangay executives. As an Army colonel put it in an interview: "It was already 'martial law' in Maguindanao before government signed the declaration. We've been in control of the province since after the massacre." Of course, the generals will say that's a lie. Over the last few days, joint police-military units have uncovered armories disguised as warehouses, sleek firearms, and thousands of ammunitions--all government-issued--that could rival the military's. Authorities have been churning out classified information about the documented strength of the Ampatuans' private armies--personnel, firepower, their hideouts. Are they telling us they didn't know? In recent years, the bulk of police and military resources--logistics, intelligence, combat--have been geared toward key conflict areas in Muslim provinces, Maguindanao among them. Because intelligence is intense toward the Moro Islamic Liberation Front (whose base includes Maguindanao), it therefore becomes unthinkable for private warehouses and huge armories (even if underground) to be left undetected by security forces, unless they're playing blind. And any Army or police officer worth his salt will not deny that since 2001, no battalion, brigade or division commander or police director in the area got assigned without the blessings from the patriarch, suspended Gov. Andal Ampatuan Sr. One proof of this is the case of an Army colonel, who had managed to prolong his stay in the area despite charges he had been pocketing Cafgu funds, among other questionable acts. It took an AFP-wide "cleansing" of the Cafgu battalions 2 years ago for him to be finally relieved from his juicy position of arming, training, and "disciplining" the Ampatuans' Cafgus. Yet, the AFP dropped any charges against him even after a thorough probe. Imagine him watching TV news nowadays from the comforts of his military desk. Imagine all cops and soldiers previously assigned to the province listening now to their superiors who, after each operation, express shock at the "mind-boggling" firepower of the Ampatuans. Watching all these raids is akin to seeing a scorned but pampered wife finally--after many years of playing deaf and blind--confronting the other woman in her palatial home and confiscating all her jewelry. It's a sickening feeling, made worse by the fact that now deployed in Maguindanao are young officers--idealistic, passionate, patriotic to the core--who in due time will find out all about this. And who, because of martial law, will be made to believe that civilian governance has been an utter failure. And who, because of martial law, will be made to believe that indeed the military can rule--efficiently and effectively. This isn't some misplaced, unfounded fear. Just look at how the Gringo Honasans, the Danny Lims, the Sonny Trillaneses, and the Ariel Querubins began their journey as young men.

Two other pieces also make for informative reading. Here's another one by Gail Ilagan, Tectonic movement, in which she zeroed in not just on the Ampatuans, but the dynamics between organized power blocs in the area (it is significant, based on this article, that the President's martial law report points to MNLF or ex-MNLF alliances established by the Ampatuans, while government itself in its martial law proclamation tread carefully around the MILF and its camps):

Me - well, I refer to the Ampatuans as the ambulance. You happen to be on the road when their long line of black, expensive cars is out, you had better take the wayside and let them pass. Not only are their drivers trained to get ahead of every other car, one lives in fear of getting too near something that invites mortar fire. As their cars are viewed, so too are their mansions. I suspect that if houses in Juna and Nova Tierra were movable, the residences next door to the Ampatuan fortresses would have relocated. Failing that, the neighbors must have raised their life insurance premiums to protect the next generation. But that is all about the Ampatuans in Davao. The Ampatuans in Maguindanao are a different story. In Maguindanao, the order of things is for them to be at the upper end of wealth distribution and that is where they have been for some time now. Such was the order of things when Maguindanao became part of the ARMM. Today, the Ampatuans hold political power not only in Maguindanao, but also in the ARMM. It hasn't always been that way. At least four former high-ranked commanders of the Moro National Liberation Front (MNLF) I talked to last year understand that the 1996 Final Peace Agreement carried a gentleman's agreement for the ARMM governorship to always be in MNLF hands. This would allow for the political will to push for the realization of the terms of the 1996 FPA. For a while, they said, that gentleman's agreement was honored. Then, as former MNLF combatants settled and took leadership in mainstreaming their resident communities in synergy with government efforts for social uplift, development work kept them busy and gratified that they slowly laid down their arms at their own volition. After more than a decade of investing in peaceable efforts, the MNLF brought itself into a position where it would be hardpressed to take up arms again. And today, the governorship of the ARMM is not in the hands of the MNLF. This state of affairs does not make the former MNLF combatants very happy. They feel that without the ARMM leadership in tune to the spirit of the 1996 FPA, the peace agenda would not be served or pursued. It seems that the national government does not share the MNLF's concern with the 1996 FPA and its erstwhile intentions. It is however concerned with its peace negotiations with the Moro Islamic Liberation Front (MILF). Today's ARMM governorship is a reminder to the MILF that the national leadership has a power base in the contested territory. With the MNLF alienated from the corridors of government power and the MILF reminded that theirs is not the only Muslim might in the ARMM, some semblance of order indeed is in place, one that serves the interest of the current administration. There is little by way of commitment to the peace process that the PGMA administration has demonstrated so far, save for lip service. It does seem interested in a semblance of order, for things to stay the way they are. For, with the wealth distribution glaringly disparate, with violence always a threat in the horizon, with the unending post-conflict rehabilitation needs just crying out to be met, Maguindanao and the ARMM keep development funds coming in.

And here's Francisco Lara's article on how the whole thing came to pass:

Collusion and Collision in Muslim Mindanao

Additional in-depth readings are Muslim rulers and rebels by Thomas McKenna and John Sidel's Capital, coercion, and crime: bossism in the Philippines.