Antonio C. Abaya - Why Not Martial Law?

Principally because Presidential Proclamation no. 1959, which imposed martial law in the Province of Maguindanao, is based on the wrong premise.

Article VII, Section 18 of the 1987 Constitution says: "In case of invasion or rebellion, when the public safety requires it, (the President) may, for a period not exceeding sixty days, suspend the write of habeas corpus or place the Philippines or any part thereof under martial lawâ€¦.."

The incident that triggered PP No. 1959, the massacre of 57 persons on November 23, cannot by any stretch of the imagination be considered an act of rebellion. The suspected perpetrators of the crimeâ€“members of the Ampatuan clan â€“were not rebelling against the Philippine government or its officials.

In fact, the Ampatuans were/are allies of President Arroyo and were responsible for her lopsided (but suspect) victory in Maguindanao over challenger Fernando Poe Jr in the 2004 presidential elections.

The Ampatuans were also responsible for the equally lopsided (but also suspect) 12-0 sweep of the province by her candidates in the 2007 senatorial elections.

The 54 victims of the November 23 massacre were not officials of the national government trying to assert the authority of the Philippine Republic.

Four were (female) members of the rival Mangudadatu political clan, two were (female) lawyers, 30 were (male and female) members of local and national media, and the remaining 18 were innocent bystanders who happened to pass by when the convoy was waylaid by some 100 gunmen and brutally massacred.

The four Mangudadatus, their two lawyers and the 30 accompanying media persons were not out to quell or quash a rebellion by the reigning Ampatuan clan. They were merely on their way to the Comelec office in Sharif Aguak town, to file the certificate of candidacy of their principal, Buluan Vice-Mayor Esmael Mangudadatu, who wants to challenge one of the Ampatuans for governor of Maguindanao Province, when they were ambushed.

One would have to be extremely stupid to conclude that the massacre of the 54 individuals, allegedly by the members of the Ampatuan clan, was an act of rebellion against the Philippine state.

From all appearances, this massacre was an apparent attempt of the Ampatuans, political kingpins of Maguindanao Province since 2001, to protect their turf against interlopers like the Mangudadatus.

But since neither President Arroyo nor Defense Secretary Norberto Gonzales nor Interior Secretary Ronaldo Puno nor Justice Secretary Agnes Devanadera is stupid, one must search for the real motivation for PP no. 1959.

Herein lies the clash of perceptions. Those who claim that the declaration of martial law was justified should explain how this ambush and massacre could be considered an act of rebellion against the Philippine state.

One the other hand, those who say that the declaration of martial law was unjustified can cite a credible explanation for why President Arroyo wants to have the Ampatuans â€“her allies in the 2004 and 2007 elections â€“charged with rebellion, instead of multiple murders.

Senator Rodolfo Biazon was the first to raise the warning that charging the Ampatuans with rebellion â€“ which clearly did not and does not exist â€“was a way to have the Ampatuans â€“ her allies in the 2004 and 2007 elections â€“acquitted and let off scot-free.

According to Sen Biazon, a non-lawyer, if the Ampatuans were tried and found not guilty of rebellion, then they would automatically be not guilty of multiple murders, a crime that is subsumed by the higher crime of rebellion. I cited Sen Biazon's explanation in my column of Dec. 08 titled Why Martial Law?

The eminent Jesuit constitutional lawyer and delegate to the constitutional convention that drafted the 1987 Constitution, Fr. Joaquin Bernas, SJ, has written a similar opinion in the Dec 09 issue of the Philippine Daily Inquirer.

Wrote Fr. Bernas a former dean of the Ateneo College of Law: "Murder committed in pursuance of rebellion is not considered a separate crime and is therefore absorbed by the charge of rebellion. The government must take care to prove two separate offences, that murder preceded the charge of rebellion and was not committed as part of it.

"Rebellion runs the risk of being granted amnesty, which can be pardoned by the President following final convictionâ€¦Murder done in pursuance of rebellion can then be absorbed in the rebellion charge. But if the murders were done separately, then these should be treated as a separate crime. If murder is committed before a rebellion, if it precedes the rebellion, it must be treated independentlyâ€¦."

We may therefore expect the Ampatuans to be tried for, and plead guilty to, the crime of rebellion, with the secret understanding that after conviction they will be pardoned or amnestied by President Arroyo The requisite fall guys can always be hired to testify that they took part in the planning of the murders as part of the Ampatuans' rebellion against the Philippine state.

Or perhaps it can be proven in court that the 54 victims committed mass suicide to protest the higher price of cooking gas, which may or may not constitute rebellion against the state. Under the Arroyo government, anything is possible.

What is irrefutable is that President Arroyo declared martial law on Dec 04 with the stated purpose "to arrest the Ampatuans" SEVERAL DAYS AFTER Interior Secretary Ronaldo Puno had arrested Ampatuan Jr, Ampatuan Sr., and eleven other members of the Ampatuan clan â€“and put 1,092 members of the local police under investigation -purely on Puno's authority as civilian administrator of Maguindanao Province under emergency rule and WITHOUT RECOURSE TO MARTIAL LAW.

So if Sec. Puno could arrest the major Ampatuans without martial law, why is it necessary to impose martial law to arrest the minor Ampatuans?

Justice Secretary Agnes Devanadera also said that martial law was necessary because groups of armed men, numbering 20 to 100 each were moving around the province in what to her looked like a looming or threatening rebellion.

Madame Secretary, have you never heard of the separatist Moro Islamic Liberation Front (MILF)? They have groups of armed men, numbering more than 20 to 100 each, moving around Maguindanao since the 1990s and openly declaring that they are in rebellion against the Philippine Republic from which they want to secede.

And yet President Arroyo never had the guts to impose martial law on them or arrest them or forcibly collect their firearms. In fact, the martial law imposed by PP no. 1959 on Dec 04 pointedly excludes the territory controlled by the MILF on the grounds that the government is conducting "peace talks" with the self-declared rebels. So why not also have "peace talks" with the Ampatuans, instead of imposing martial law on them?

Lest we forget, there were open rebellions by heavily armed military mutineers in Metro Manila, in 2003 at the Oakwood serviced apartments in Makati, and in 2006 at the Manila Peninsula Hotel, also in Makati. But President Arroyo did not have the guts either to impose martial law on Metro Manila then.

So I believe that there is no rational basis for imposing martial law on Maguindanao in 2009, except to give the Ampatuans â€“ political allies of President Arroyo in 2004 and 2007 â€“ room to wiggle out of the charge of multiple murders.

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