Dress her down anyway

PRESIDENTIAL Proclamation (PP) 1959 dated Dec. 4, 2009, declaring “a state of martial law” and suspending the writ of habeas corpus in Maguindanao is so inane and so baseless that even a law student will readily disown it. That President Macapagal-Arroyo has “lifted” it last night does not lessen its sheer inanity. Neither should the lifting deter the Supreme Court from chastising the government for recklessly violating our Charter. Let me explain.

Patently unconstitutional. On its face and in its essence, PP 1959 is clearly unconstitutional. The 1987 Constitution provides only two grounds to justify martial law: “invasion or rebellion.” And even when either or both of these grounds exists, the Charter further mandates proof that the “the public safety requires” its imposition. “Looming” or “brewing” rebellion is not enough. It must be actual and real.

PP 1959 cites the alleged “rebellion” of the “Ampatuan clan” who are accused of massacring 57 innocent men and women. True, the massacre is unpardonable but it does not constitute “rebellion.” Republic Act 6968 states that rebellion “is committed by rising publicly and taking arms against the Government for the purpose of xxx depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

By all accounts, the atrocious mass killing was not directed “against the Government for the purpose of xxx depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

How can our people believe that the Ampatuans would rise against the government when they completely controlled the entire province and occupied all its major public offices, including the governorship and most of the mayoralty posts? How can they publicly rise against President Arroyo when she has always been their close political ally and generous patron? How can they deprive Congress of its powers when the two congressmen representing their province belong to the clan?

Testing Congress and the Court. What happened was plain murder that could be solved with the prudent use of normal police powers. Why then did GMA belatedly impose martial law?

In my view, President Arroyo wanted an opportunity to test her hold on Congress, and more important, on the Supreme Court. Since congressional decisions are essentially partisan, dependent mainly on the “numbers game,” not on logic or legality, our legislature could be expected to close the debate on whether to validate the proclamation or not.

Anyway, the crucial forum to test the validity of PP 1959 is the Supreme Court. Several petitions have been lodged to void this edict. By lifting PP 1959 before the Court could act, the Palace is obviously hoping for a dismissal of the petitions because they have become “moot and academic.” Normally, when petitions are mooted, the legal dispute ends and courts no longer issue decisions.

In the present case however, I believe the petitions should not be dismissed. Just three years ago, in David vs. Arroyo (May 3, 2006), the Court refused to dismiss the petitions to nullify PP 1017 that declared “a state of national emergency.” Like PP 1959, PP 1017 was completely devoid of constitutional basis and by lifting it, President Arroyo wanted to avoid a judicial dressing down.

Courage and patriotism. But in a defiant show of courage and patriotism, the Court refused to heed her plea because there had been a grave violation of the Constitution and the case is “capable of repetition yet evading review.” The Court said that “there is no guarantee that PP 1017, or one similar to it, may not again be issued.” It thus struck down the issuance “to prevent future constitutional aberrations.”

An aberration the present case is. The government obviously did not learn its lesson with the dressing down it earlier got and has again undertaken a constitutional misadventure via this martial law edict. And so, the Court should not let pass the new opportunity to teach the administration the fine lessons of constitutional governance.

Should the Court cower and refuse to strike down this patently unconstitutional edict, the President would be emboldened to repeat unconstitutional acts. Feigned or real, terrorist attacks in the south by the Abu Sayyaf, in the north by leftist elements and in the Center by rogue military forces—not to mention automated election glitches and errors—could be masked as excuses to try iron rule again and again.

May I close by reiterating my separate opinion in David vs Arroyo: “Some of those who drafted PP 1017 may be testing the outer limits of presidential prerogatives and the perseverance of this Court in safeguarding the people’s constitutionally enshrined liberty. They are playing with fire, and unless prudently restrained, they may one day wittingly or unwittingly burn down the country. History will never forget, much less forgive, this Court if it allows such misadventure and refuses to strike down abuse at its inception. Worse, our people will surely condemn the misuse of legal hocus pocus (like the moot and academic theory) to justify this trifling with constitutional sanctities.”

Once again, the Court is faced with the same fire. The Palace engages with a constitutional misadventure and when our people protest, it suddenly withdraws and claims exculpation through legal hocus-pocus. The Court should not tire of firmly striking down the trifling of civil liberties. Dress her down anyway.

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