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Today, we make history. For the first time, all three branches of
Constitution, is supreme. Dura lex sed lex: the law is law. The law must be
upheld, even if it entails heavy sacrifices. Another premise is that, reading the
the ages.
Constitution. Its words must be given their ordinary meaning. The primary
objective is to carry out the intent of the people who ratified it. As the Supreme
Court ruled: “The Constitution does not derive its force from the convention which
the spirit of the age. In 1986, the people wanted an extremely restricted system of
martial law. I humbly submit that the temper of those times provides the
necessary corollary that in case of doubt, the doubt should be resolved against
martial law.
We are here dealing with martial law, which is not formally defined by the
Philippine Constitution, and which is not even mentioned at all by the U.S.
Constitution, which serves as our template. I will use this 1940 definition: 3
necessity justifies its exercise, and necessity measures the extent and degree to
concept but an actual and factual one: it is the necessity of taking action to
safeguard the state against insurrection, riot, disorder, or public calamity. What
the order or the existence of the state. When the ordinary civil authorities – the
nature, may be applied. The extent of military force used depends, in each
2
Hence, I humbly submit this general test for constitutional martial law: Is
martial law a necessity for the existence of the state? The answer is “No.” I
further submit this particular test: Is there an actual rebellion, and does public
The Constitution imposes two conditions for martial law: there should be a
state of actual rebellion; and public necessity requires it. These conditions do not
exist today.
The Penal Code defines the crime of rebellion as: “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 Republic of the
Philippines or any part thereof, or any body of land, naval, or other armed forces,
established government. If there is such a rebellion, why have we never seen any
such footage in the TV newscasts or on the internet? Are we now adopting the
Proclamation No. 1959 (here known as Proclamation) does not even claim
that there is a state of actual rebellion. This in itself is a fatal flaw. Instead, the
3
Proclamation claims that “heavily armed groups in the province of Maguindanao
not impose the condition that heavily armed groups have established positions to
resist. The Constitution imposes the condition that there is an actual rebellion.
Thus, the Proclamation does not comply with the first condition.
the commission of rebellion is that other acts committed in its pursuance are, by
law, absorbed in the crime itself because they require a political character.
convicted of the common crime and not rebellion. In cases of rebellion, motive
carries a lighter penalty than murder. Thus, it is imperative for our courts to
ascertain whether or not the act was done in furtherance of a political end. It is not
4
enough that the overt acts of rebellion are proven. Both purpose and overt acts
The Constitution does not define “public safety,” although it also uses this
term to restrict the right to travel. In the light of this lacuna in the law, I humbly
submit that the emphasis should be on the public nature of safety. The term
But crimes committed by warlords against each other are basically threats
to the safety only of their respective camps. What they constitute are not threats to
public safety per se, but acts of terrorism, defined by law as the commission of a
extraordinary fear and panic among the populace, in order to coerce the
The Proclamation, unlike its omission to use the word “rebellion,” does use
the term “public safety,” but in a way that, out of kindness, I shall call a non
sequitur, or a conclusion that does not logically follow from its premise. The
Proclamation claims that “the local judicial system and other government
mechanisms in the province are not functioning, thus endangering public safety.”
5
Supreme Court is Last Resort
in the Senate fail to convince our colleagues in the House, then we are a sinking
ship, and we will go down with this political Titanic. But the debate does not end
here. It will go on to the Supreme Court. I take the attitude that the legal problem
posed by martial law is not civilian control over the military, but judicial control
over the executive and legislative branches’ delegation of authority to the armed
forces.5
Maguindanao or the ARMM. Martial law is the future refusing to be born. I vote
-End-
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ENDNOTES
1
Constitution, Article 7, Section 18.
2
IBP v. Zamora, 331 SCRA 81 (2000)
3
Federich B. Weiner, A Practical Manual of Martial Law, 16-17 (1940).
4
People v. Lovedioro, 250 SCRA 389 (1995)
5
Michael F. Noone, Jr., “Martial Law” in The Oxford Companion to