“Gutted Charter”
Philippine Daily Inquirer
Wednesday, December 16, 2009
Editorial, p. A14
No one had any doubts that President Macapagal-Arroyo would pat herself on the back for imposing martial law and suspending the writ of habeas corpus. And it comes as no surprise that she keeps padding the reasons for imposing martial law (the latest being to protect witnesses, although Gilbert Teodoro, Jr., if lawyer Harry Roque is to be believed, has had the four survivors of the Maguindanao Massacre under his wing, without benefit of martial law since officially, anyway, he is out of government). But one assertion of the President was particularly revealing. “Our critics drag their feet and took their time grandstanding when the situation demanded decisive action, yet we must act quickly to secure the peace and ensure justice,” she declared.
This statement ignores two basic things. The first is that she is the President, with specific duties and powers no one else gets to wield. And the public was not convinced of the decisiveness of the President with regard to apprehending and ensuring the punishment of the perpetrators of the massacre.
It did not help that one of her own spokespersons went out of her way to say soothing things about the Ampatuans—and got only a mild slap on the wrist for it, by way of Executive Secretary Eduardo Ermita who said the statement shouldn’t be construed as representing the President’s—or the Administration’s—views. The Secretaries of the Interior and of Defense also seemed, briefly, at odds with the President’s martial law judgment call.
The second is that the President is boldly accusing her critics of grandstanding in Congress. But it was her allies who did most of the grandstanding: Makati Rep. Teddy-boy Locsin and Sen. Miriam Defensor-Santiago didn’t interpellate, they lawyered for and against martial law since the Administration resource persons seemed incapable of making the arguments on their own. Her critics, for the most part, asked precisely the sort of questions Congress was supposed to be asking during a martial law situation.
The Constitution is a document born of the times in which it was written, and that was the post-dictatorship era, with its broad public consensus that our institutions shouldn’t be caught napping, or worse, end up cravenly accepting, any aggressive presidential encroachments on the constitutional territory of other branches of government. For this reason, it explicitly ordered the Congress (if not in session) to convene within 24 hours of a martial law declaration, and imposed a 48-hour deadline for the President to submit a report.
When the time came for the Constitution’s provisions to be tested, glaringly absent was Congress sharing the Charter’s sense of urgency, with Speaker Prospero Nograles taking the lead in turning the Constitution on its head by insisting that he saw no need to convene at all, since his colleagues intended to support the declaration anyway. Noteworthy was his saying so even without a ritual nod to whatever justifications the President might propound. The ruling coalition had made up its mind even before the shallow report was submitted by Ermita in the name of the President.
A Congress imbued with a sense of urgency would have formed two panels, composed of its best and brightest, to subject the President’s representatives to a thorough but organized barrage of questions, leading to two legislators summarizing the arguments pro and con prior to taking a vote. This time, the appropriate questions were all asked within the first day of the joint session, and by the second day, Congress was armed with enough information to conduct an informed vote on whether to revoke the twin declarations of martial law and the suspension of the writ.
Worst of all, Congress adjourned its joint session with an admission that the President, by lifting martial law, had singlehandedly rendered the Constitution’s martial law safeguards ineffectual. The Administration majority lacked even the force of its conviction to render a vote for the record.
This sad state of affairs doesn’t leave the Constitution in a shambles. It gutted its principles. The form was slovenly followed while the substance was blithely ignored.
“The Last Taboo”
Philippine Daily Inquirer
Sunday, December 6. 2009
Editorial, p. A10
The last taboo of the newly restored democracy the Filipino people put in place in 1986 was broken Friday evening when President Macapagal-Arroyo signed a proclamation placing Maguindanao—except for MILF camps—under martial law. Previous presidents had considered themselves bound by a broad, post-Marcos consensus: the exercise of utmost discretion in wielding certain constitutional powers—like the power to declare martial law. For this reason, even in the face of coup attempts, President Cory Aquino conscientiously asked for emergency powers from Congress instead of arrogating them unto herself.
***
The Executive Departments’ justifications range from the contradictory (a province caught up in a total breakdown of government tantamount to a rebellion, or on the verge of rebellion, said Justice Agnes Devanadera in Saturday’s press conference) to the disingenuous (government needed to undertake warrantless arrests, which sidesteps the question of why a state of emergency fortified by the suspension of the writ of habeas corpus wasn’t enough. The President has declared the writ’s suspension and martial law; Marcos allowed at least a year to pass between the former and the latter.)
_______________________________
There are few things in life more hurtful than being accused of weakness by your opponent in boxing (or any other contact sport). Of the entire speech by the President, delivered in front of public schoolteachers in Quezon City, the Inquirer has chosen to emphasize the words, “drag[ging] their feet,” and “grandstanding.” It is easy to infer from the tone of the speech what Mrs. Arroyo was hinting at: “Weak, weak, weak!” she taunted her critics. Given that the editorial staff were living and working in the safety (though not the comfort) of Metro Manila, 500 miles north of the erupting chaos in Maguindanao, the taunt must have stung. “Ouch.”
Let us outline the ideas, such as they are, put forth in the December 16 opinion above.
1. The President possesses broad and unique powers even in ordinary times. But she utterly failed to use the ordinary powers of her office to bring justice to the massacre victims. That failure should not have given her an excuse to resort to constitutional powers that are to be used only in extraordinary times.
2. It was not the critics who were “grandstanding” in Congress. It was the President’s allies who were grandstanding. The “critics, for the most part, asked precisely the sort of questions Congress was supposed to be asking during a martial law situation.”
3. The President’s lifting of martial law “singlehandedly rendered the Constitution’s martial law safeguards ineffectual.”
4. The letter of the Constitution’s martial law provisions was observed, but the spirit was not. “The form was slovenly followed while the substance was blithely ignored.”
Let us discuss these points one by one, and offer answer to the critics’ objections as best we can.
1. In the December 16 editorial, the “ordinary powers” spoken of are not enumerated. To make the editorial position clearer, let us refer to the earlier piece written the day after martial law was proclaimed, quoted in part above. In it, the editors were less equivocal in what they wanted: “a state of emergency fortified by the suspension of the writ of habeas corpus . . .” This is the most substantial exposition of the critics’ desire, the meat of their position, so to speak. They want the President to act, to bring hell to the Ampatuans and their supporters and to put an end to their ability to wage violence, and to use every means to achieve these objectives; EXCEPT that she may not call it “martial law.”
Let us record a related objection, quoted here again to avoid any confusion, which will lead us to the heart of the controversy: “[t]he President has declared the writ’s suspension and martial law; Marcos allowed at least a year to pass between the former and the latter.” This, however, only gives us a clue—two clues, in fact—about the intellectual and emotional force of the criticism of the martial law proclamation. First, there is a big difference between the motives of Marcos and the motives of PGMA in declaring martial law, and second, the Marcosian comparison makes clear that the critics’ real aim is to replay 1972 again, only with a different ending this time.
Why did the President in 2009 declare martial law and suspend the writ of habeas corpus at the same time? To carry out warrantless arrests, as even the critics accept. But the fact that the two actions were initiated simultaneously reflects the limited purpose of the martial law declaration, which is to bring justice to the murder victims and to reverse a failed security policy in central Mindanao. The effects of the simultaneous actions were that the military gained legal control over the Maguindanao police and the Maguindanao local government (what martial law meant), and then proceeded to arrest without warrant those suspected of involvement in the massacre and to efficiently collect evidence needed by the investigators (what the suspension of the writ allowed). Even the chairman of the Commission on Human Rights, Leila de Lima, usually on the opposite emotional side of the present Administration, signaled her appreciation of the benefits of martial law in a television interview.
So martial rule significantly improved the ability of the national government to assert its authority over the warlord-ruled province, and enhanced the efficiency of the massacre investigation. These were the very purposes of the martial law declaration, and the arrest of dozens of Ampatuan supporters, including the incumbent ARMM Governor who is an Ampatuan son, has vindicated the soundness of the declaration. Of course, in perfect hindsight the critics can say that such arrests could have been achieved without martial law.
Maybe, but apparently, not without suspending the habeas writ. A “state of emergency fortified by the suspension of the writ of habeas corpus” would have been immeasurably better, the Inquirer says. But what would have been the difference? The difference was in name, and in name only. As we have seen in its effects as described above, martial law had a limited purpose. But the critics do not see the effects unfolding before their very eyes; they see what is behind the unfolding. They see the sinister hand of the President, protecting her allies the Ampatuans by charging them with rebellion instead of murder. They see the President’s mind, plotting to remain in office by extending martial law over the entire country and warrantlessly arresting all who oppose her. They see a stage-managed act of barbarism—the ambush and murder of public figures—forming the ostensible basis of a malevolent power-grab. They see, in short, Ferdinand Marcos.
The memory of the dictator remains green in the minds of those who lived through his time, and no assurance by a written Constitution can erase the trauma of the experience—not even the passage of time or the changing of personalities. So raw was the association with the term “martial law” that Cory Aquino could not bring herself to declare it, despite the seven coups d’état that nearly pushed her Administration and the nation’s newly won democracy over the edge. For men and women of a certain age, the political and economic repression that they suffered under the Marcosian martial law has formed psychological scars that may never heal but only grow fresher as the years pass. Their determination that it should never be so again informs their view of martial law, against which the assaults of logic can only end in failure. “Martial law has been defanged,” says an authority no less than Marcos’s Justice Minister Juan Ponce Enrile, but his surviving victims have known him to cry wolf.
This psychological, intellectual and emotional disorder gives coherence—if it may be called such—to the critics’ otherwise irrational position. Suspending the habeas writ and declaring a state of emergency is preferable to suspending the habeas writ and declaring martial law, acting with every means at the government’s disposal but not making an “overkill,” asserting that the arrest and impoverishment of the Ampatuans and their supporters is a way of “saving” them and of keeping them from divulging election-cheating secrets—all these contradictory positions find their theoretical underpinning in the emotional battering that a responsible generation suffered under the dictatorship.
To this, the younger generation that did not live through those dangerous years must offer a consistent response, and in every way they are helped by a government that is determined to bring Philippine history forward and is not swayed by the raw emotion and unsettled scores of yesteryear.
2. Let us be clear: the President said “grandstanding;” she did not say, “grandstanding in Congress.” The distinction is critical, for the latter is simply an attempt to deflect the force of the President’s rebuttal from its real target—those in the media—to her allies in Congress.
For what does one call the Inquirer’s call to suspend the writ of habeas corpus and declare a state of emergency but not to declare martial law? Is it a principled stand on issues, or simply a grand stand to sensationalize? What can one say of the position that there must be debate, but that it must end in the revocation of Proclamation 1959? Is that the Inquirer’s definition of democracy? And what about the position that the President was not decisive enough because she let the Ampatuans go free during the first week that followed the massacre, but that she was being too decisive by arresting them during the second week (martial law was declared about 13 days after the massacre)? Did the critics imply that the Ampatuans should not have been arrested because it was already the second week?
Given the critics’ irrational arguments it is polite of the President to take them seriously and answer their objections in a full speech. In The Economizer's opinion, such idiocy deserves no reply at all.
3. The Constitution safeguards the democratic political system not just by requiring the submission of reports and the commencement of debates in a joint session of Congress, which can be superficial (there is no disputing that the Executive Secretary’s report and the debate in the joint session were farcical), but more crucially by stipulating that the Bill of Rights and the civilian courts should remain in operation even in areas where martial law is declared. During the entire time that martial law was in effect in Maguindanao, charges were filed (in civilian courts) within 36 hours against those arrested under martial law powers, in accordance with the Constitution, and the civil courts were not deprived of their authority or jurisdiction. A judicious reading of newspapers including the Inquirer shows no reports of military trials anywhere.
This is a triumph of our democratic 1987 Constitution, flawed though this Constitution is. As usual this point failed to grab the same headlines as did the matter of the “constitutionality” of Proclamation 1959, for the newspapers do not sell on good news. But there it is, and it cannot be ignored.
Our democracy also triumphs in a stronger, more lasting way. The same reading of newspapers fails to elicit anything but the most glowing review of the military’s conduct. Gen. Raymundo Ferrer commanded the respect of friends and foes alike, and the media fell all over themselves proclaiming that the sinister Gloria Arroyo would never have this man of integrity, the chief administrator of martial law, as her tool of oppression. But the very same newspapers perfectly failed to understand the military’s significance. By behaving well, by simply refusing to commit abuses, the military upheld the Constitution’s desire that the civilian courts be given ultimate jurisdiction of any dispute in areas where martial law is in effect. By simply doing their job, the military achieved the purpose for which martial law was declared, namely, that evidence be collected without interference and arrests be made with the minimum of resistance. By behaving as they did, the soldiers ensured that their rule was one that upheld democracy.
Saying that the lifting of martial law was a nefarious attempt to circumvent the Constitution, is simply a misreading of the same Constitution and a disrespectful misapprehension of the upstanding comportment of the military throughout the whole episode. Critics deserve only military discipline.
4. The “spirit” of the Constitution is determined that democracy must remain in force even while martial law is in effect. That is why the Bill of Rights continues to be observed in Maguindanao, that is why civilian courts do not cease to operate, that is why the Congress continues to be in session even if the President placed the entire country under martial law, that is why the civilian President retains control of the military during martial law. Should martial law, a Constitutional power given to the President, never have been declared? Only those who revel in their prejudices can say that the substance of a Constitutional provision is given effect only if it is not used at all.
