• Do we hear the Constitution crying, ‘Rape’?

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    FRANCISCO S. TATAD

    FRANCISCO S. TATAD

    I WAS the nation’s information minister from 1972 to 1980, and had to contend with all sorts of political propaganda problems throughout the martial law period, which ended in 1981. But I do not recall having to deal with the kind of problems being raised today against President Rodrigo Duterte’s May 23 martial law proclamation for the whole of Mindanao. Once President Ferdinand Marcos issued Proclamation 1081 on September 21, 1972, which I read on live TV on September 23, 1972, not a single official was heard to doubt the need for the proclamation, which suspended the privilege of the writ of habeas corpus, placed the entire country under martial law, and consequently padlocked Congress and closed down the media, in response to the rampaging rebellion of the Communist Party of the Philippines.

    No foreign government raised any doubts about it. And not even Marcos’ fiercest political enemies could claim it failed to comply with the Constitution, which authorized the President and Commander in Chief, in case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, to suspend the writ of habeas corpus, or place the Philippines or any part thereof under martial law. The biggest constitutional challenge Marcos had to face was with respect to the ratification of the 1973 Constitution, a few months after he proclaimed martial law; the process was flawed, but the Supreme Court was finally compelled to rule in Javellana v. Executive Secretary that there was no longer any obstacle to considering the new Constitution to be in force and in effect.

    No need for martial law?
    In contrast to the past, Defense Secretary Delfin Lorenzana has been quoted as saying there was no need for the martial law proclamation, which DU30 issued on May 23, in response to the violent activities of the so-called Maute terrorist group in Marawi City. These included an attack on a military outpost in Butig, Lanao del Sur in February 2016, which killed and wounded several soldiers; a mass jailbreak in Marawi in August; and on May 23, 2017, while DU30 was visiting Moscow, the takeover of a hospital in Marawi, setting up of checkpoints within the city, burning down of several government and private facilities, with significant casualties on government forces, and flying the flag of the Islamic State of Iraq and Syria (IS) in several areas.

    DU30 interpreted this last act as an attempt to replace Marawi’s official allegiance to the Republic of the Philippines with allegiance to IS. This was reminiscent of the 2013 siege of Zamboanga, when rogue elements of the Moro National Liberation Front tried to fly the flag of “independent” Bangsamoro Republik in Zamboanga and were met with the combined forces of the military and the police under the direct command of then President B. S. Aquino 3rd, resulting in a prolonged standoff that killed several civilians, neutralized all the MNLF forces except for a handful of survivors led by their leader Ustadz Habier Malik, burnt down 10,000 homes, displaced a population of 100,000 and suspended the operations of the Zamboanga international airport for a short while.

    How much of a threat is the Maute group?
    Lorenzana was reported to have told a closed-door military briefing that the Armed Forces could have contained the Maute terrorist group, whose violent activities were earlier cited as the reason for Proclamation 55, on September 4, 2016, declaring a state of national emergency on account of lawless violence in Mindanao. The earlier proclamation was grounded on the same provision invoked by the martial law proclamation, namely Section 18, Article VII of the Constitution, which provides that whenever it becomes necessary the President, as Commander in Chief of all armed forces of the Philippines, may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. Proclamation 55 has not been lifted, but may be deemed to have been superseded by the martial law proclamation.

    Proclamation 216 presumably grants the President and Commander in Chief more powers than Proclamation 55 does, except that those powers are not clearly defined in the Constitution, nor in the text of Proclamation 216. The state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civil where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus. The privilege of the writ must be specifically suspended under the proclamation. But suspension shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. Any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

    Martial law under Marcos
    In the dispositive portion of Proclamation 1081, we read the following:

    “Now, therefore, I, Ferdinand E. Marcos, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the (1935) Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of this Constitution under martial law and, in my capacity as their Commander in Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally and upon my direction.

    “In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered released by me or by my duly designated representative.”

    …As against DU30’s
    In stark contrast, DU30’s proclamation of less than 10 short paragraphs contains the following dispositive paragraph:

    “Now, therefore, I, Rodrigo Roa Duterte, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution, and by law, do hereby proclaim, as follows:

    “Section 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days effective as of the date hereof.

    “Sec. 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.

    “Done in the Russian Federation this 23rd day of May in the year of our Lord 2017. “

    The DU30 proclamation contains no details.

    Why Russia?
    The first curious point is why the last line in such an important sovereign document (jurat) should contain “the Russian Federation,” which is foreign territory, instead of “the Embassy of the Republic of the Philippines” in Moscow, which is Philippine territory. But the more important point is whether or not the proclamation is a valid constitutional document, given the President’s and the Congress’ refusal to comply with the constitutional provisions relative to the perfection of this particular document.

    Sec. 18, Article VII of the Constitution is absolutely clear and unequivocal.

    “xxx In case of invasion or rebellion when the public safety requires it, he (the President) may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such a proclamation or suspension, which revocation shall not be set aside by the President. xxx

    “The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.”

    Is Proclamation 216 a valid document?
    This means that the proclamation and the suspension are not complete and enforceable without the approval of Congress, and neither the President nor the Congress has the option to disregard or waive this requirement. The Congress is mandated to convene within 24 hours from the proclamation, if it is not in session, and within 48 hours to sit in joint session to receive the President’s report. Since the proclamation was issued on May 23, on May 25, the Congress should have already met in joint session and received the President’s report.

    This has not happened. Instead, the House of Representatives has converted itself into a committee of the whole to conduct a hearing on the President’s proclamation, while the senators maintain there is no need for a joint session and the President is not inclined at all to appear before the Congress. They have decided to rewrite the Constitution, without any authority, for their own ends. This is nothing else but violence. And it does not look any less grave than the violence inflicted upon Marawi by the Maute terrorists. At this point, the Constitution looks helpless. There is no one to protect it from the violence.

    Under the Constitution, the Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. Are they expected to know by themselves, or should others have the courage and the conviction to tell them, that the sovereignty of the State, the integrity of the national territory, and everything else we hold dear are already being raped?

    fstatad@gmail.com

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    4 Comments

    1. The president has power to proclaim and enforce ML as granted by the Constitutio. There is no need to re define ML on proclamation announcement. It is up to Congress along with SC to over rule the president ML power. By logic of Constitution, ML can be legally impose by 3 agents, president, congress and SC with rule of 2 is greater than 1. If 2 agents agree to enforce ML then it is legally binding. In contrast if 2 (Congress and SC) agents does Not agree to enforce ML then the all alone president can Not legally enforce ML. What then is another option to enforce ML because the citizens likes it. Simply lock down Congress and SC.

    2. Amnata Pundit on

      I thought it was Marawi City that was being raped by the terrorists, but I suppose seeing who the rape victim really is nowadays depends on where you stand in the political divide, right? What if the government receives reliable information that rebels of all stripes are going to stage a Tet offensive-like attack in Mindanao and/or the Visayas? Wouldn’t the president, any president, be a fool not to declare martial law ? If the constitution proves to be inadequate in defending the state Duterte should declare a revolutionary government ! Any leader of worth must do whatever it takes to defend the country. The Americans who love to preach about human rights know this very well, as shown by their human rights victims who are still languishing without trial in Guantanamo. There have been and will always be many times when exigencies trump the rule of law because man made laws cannot possibly foresee all possibilities. Everybody and his uncle knows that the ISIS is an American creation, and the American-led West are very unhappy with this president. If I were the CIA, I will bring Syria to Mindanao by launching a Tet offensive to make Duterte look really bad. Today’s Marawi is just a practice run. Lets pray for Duterte, he is the country’s last chance.

    3. Farmers Milling on

      The constitution I believe has been raped so many time by various politicians that it has lost its virtue in protecting the people

    4. No doubt Marcos is the best PH president. He has the best minds in his governmet. He padlocked congress, operated through presidential proclamations and censored the media. In his numerology he supposedly proclaimed martial law dated september 21, 1972 but in blitzcreg announced it perfectly later arresting his surprised known and perceived enemies. He jailed or silenced forever those who opposed him. We fortunately survived this far to see a confined martial law imposition in Marawi City, make a comparison and contrast, at least free to speak out our minds than was then.