The Long View: The lion and the fox

The Long View
The lion and the fox
By Manuel L. Quezon III
Philippine Daily Inquirer
First Posted 23:37:00 12/27/2009

DIZZYING CHANGES IN POLITICAL allegiances have everyone wondering what they are all about and, more importantly, what they say about the leaders whose tents are suddenly expanding to include those who’d been trying to destroy those tents in the first place. In a nutshell, if politics is addition, is it worth the price?

Machiavelli, who has a reputation for being amoral, famously wrote, “It should be understood that there are two types of fighting: one with laws and the other with force. The first is most suitable for men, the second is most suitable for beasts, but it often happens that the first is not enough, which requires that we have recourse to the second.”

And here enters one of his most famous pieces of advice: “Since it is necessary for the prince to use the ways of beasts, he should imitate the fox and the lion, because the lion cannot defend himself from snares and the fox cannot defend himself from wolves. Therefore, it is important to be a fox in order to understand the snares and a lion in order to terrify the wolves.”

This is particularly true of the presidency which confers power on those who seek it, to the extent that its seekers are often prepared to do anything and everything to obtain that power. And yet, in and of itself, obtaining that power enables marvelous things, not least the opportunity to do good. But neither can the presidency be achieved by one person nor its powers be effectively wielded by going it alone, thus the need for coalitions, for constituencies. But with either of these comes the inevitable need to compromise as each follower, each ally, joins the effort with different motivations and priorities in mind.

A candidate, therefore, even if possessed of a moral compass that guides all his public actions, must be like the lion and the fox. Elections are just points that, together, form the line of a public career. A candidate, both in seeking power and wielding it once elected, must have an idea of the direction in which the line of his political career is headed. Will it stop dead, because the leader has reached a point where he deems compromise impossible? Should impossibility even be in a leader’s political vocabulary?

Writing in Slate, Bruce Reed observed, “In recent years, the political world has come to dismiss principled compromise as an oxymoron.” Reed pointed out that the late Ted Kennedy showed “that it is possible to stand one’s ground and still seize every chance to make steady progress… Kennedy never had a problem summoning his followers to the ramparts one day and negotiating on their behalf the next.” The party faithful loved him for it; his political foes respected him for it.

As the Washington Post in its obituary pointed out with regard to Ted Kennedy: “He collaborated with a Republican president, George W. Bush, on education reform; with a Republican presidential candidate, Sen. John McCain (Ariz.), on immigration reform; and with an arch-conservative senator, J. Strom Thurmond of South Carolina, on major crime legislation.” Kennedy was able to do this because he never lost focus on who he was fighting for, which enabled him to pursue working at times with those he usually spent time fighting against.

He condemned Bush for the Iraq War but would not let his condemnation condemn children who could be aided by educational reform. He bitterly opposed Republican efforts to roll back public benefits but embraced McCain, a Republican stalwart who shared his social justice aspirations for immigrants. He was one of the leading lights of civil rights legislation but worked with an unrepentant racist, Thurmond, on making criminal laws more responsive to the poor and those traditionally disadvantaged in securing legal protection.

Returning to Reed’s commentary, here’s this gem: “Ted Kennedy was as steadfast a champion of his beliefs as the Senate has ever seen, but he always understood what too many in Washington forget: Every cause is better served when principle takes a seat at the table, and no cause moves forward when its champions walk away.” This is the human aspect of politics that those too focused on self-righteousness forget.

Kennedy, writing in Newsweek near the end of his life, said of his lifelong obsession with health coverage: “I long ago learned that you have to be a realist as you pursue your ideals.” For example, to the critics of his health plan who kept projecting its costs, he asked: What are the costs of inaction? You must move forward, even if inching along most of the time; but prepared, always, to seize the day, especially if, over time, you become more convinced of the rightness of your cause.

And yet, change is a funny thing: in refusing to compromise, you might forestall it forever, yet if you compromise too much, don’t you risk watering it down so much that it becomes meaningless? Kennedy seems to have pondered this question and came up with an answer that in the end gained him the respect of friends and foes alike. Change must be pursued relentlessly, but with an eye to incrementally achieving results as much as trying to achieve spectacular successes.

This reminds me of one of my favorite stories concerning Dominic Savio and Don Bosco. Obsessed, to the point of neurosis, with sanctity, Dominic Savio started putting sand in his soup for self-mortification. Don Bosco cheerily but bluntly disabused the young boy of the notion that this was either genuine piety or that suicide was a wise path to Heaven. If you want to live a life as an authentic witness to ideals, it begins by avoiding the temptation to be so self-righteous as to end up self-destructively neurotic.

Ted Kennedy said of his brother, Robert: “He should be remembered simply as a good and decent man, who saw wrong and tried to right it, saw suffering and tried to heal it, saw war and tried to stop it.” Not alone, but in the company of others.

The Long View: Wander Woman

The Long View
Wander Woman
By Manuel L. Quezon III
Philippine Daily Inquirer
First Posted 22:49:00 12/23/2009

BACK in 1986, an American editorial cartoon showed Ferdinand Marcos in pajamas, his fist raised in the air, a scowl on his face, and a blasé Hawaiian customs officer saying to him, “Yes, Mr. Marcos, besides martial law do you have anything else to declare?” Thus, in india-ink cartoonist’s lines, was the fall of the Great Dictator exposed.

What must have it been like in December 1985, when the Marcoses spent what turned out to be their last Christmas in power in Manila? We now know it was their last, but no one knew at the time that it was. Marcos might have been aging and ailing, but his KBL was firmly entrenched, he knew all the ins and outs, he seemed to have all the aces. After all, he wouldn’t have called for snap elections if he didn’t think he was playing with a marked deck.

And yet we know from Carmen Guerrero Nakpil that the Marcoses had been treading water for over two years. Recalling August, 1983, she wrote, “I asked [Imelda] whether she and the President had watched Ninoy’s funeral on TV, and she said, yes, they’d done so, together, in his bedroom. And that they’d been crushed, struck dumb by the enormity of what they were seeing on the video screen. She added that they had felt overwhelmingly humiliated because they had little inkling of the public mood, and that Marcos had said, ‘So, after all these years, all our efforts, our trying and striving, it has come to this?”’

Nakpil concluded, “Ninoy did not die that day on that sunny Sunday afternoon in August 1983 at the Manila International Airport, for that was when he began to live forever in the hearts of his countrymen. It was Ferdinand Marcos who died that day, and he knew it.”

Nakpil’s brother, Leon Ma. Guerrero, once observed that “There is in every man a secret and obscure instinct that gives him a warning of his fate,” though in every man too there must be an often superior compulsion to believe fate can be changed or mastered by a summoning of the will. If Marcos knew his fate, he could also have believed he could change it.

The final holiday of the person whom the website Hot Manila posthumously called The Man of Steal comes to mind, together with the question of whether his final holiday in power was spent in a delusional state of mind, because of the lady whom the country may yet end up calling Wander Woman. She is spending what, theoretically at least, is supposed to be her final holiday in power, too: a final holiday as prelude to what so many devoutly wish will be either imprisonment or exile.

In August of this year, Cory Aquino was laid to rest and President Macapagal-Arroyo, by all accounts, having temporized over whether to come home, made her dawn visit to the Manila Cathedral, then held a Mass at the Palace and then stomped off to seclude herself, leaving her loyalists at first waiting for instructions then quietly sneaking off to go home and watch the funeral on TV. Did she do the same? And did similar intimations of her political mortality afflict her mind in a manner similar to what the Marcoses experienced 26 years before?

She knows more than most what it is like for a president to see power slipping through his fingers, the fair-weather friends slipping away, the hallelujahs from the faithful faltering, the isolation and paranoia as those who have feasted at the presidential table scramble for seats at his successor’s. Raul M. Gonzales, her father’s press secretary, once recounted that as he contemplated having to leave office, depression drove President Diosdado Macapagal to drink. In one White Horse-addled moment, Cong Dadong even toyed with calling out the military. Gonzales recounted that he had to remind his boss that Marcos had made inroads in the military, and Ilocano officers would disobey orders to deny Marcos the presidency, and, with a sigh, Macapagal relented and dropped the idea.

In Macapagal’s day, elections were held in November, and presidents were inaugurated on Rizal Day, December 30, which is one reason the Quirino Grandstand faces the Rizal Monument and the Independence Flagpole that commemorates our becoming a sovereign republic in 1946. Defeated presidents thus had to endure a final Christmas in the Palace.

My father once told me about visiting the Garcias during their last Christmas in the Palace, and he said it was one of the most depressing things he’d ever experienced. It was like a wake, with President Garcia as the living dead. Hardly anyone bothered to show up, and there was sepulchral silence in the Palace’s great staterooms.

Those were days, however, when an unwritten tradition guaranteed defeated presidents peace and quiet after they left office, the people’s depriving them of a mandate apparently being punishment enough, making persecution by their successors politically unpalatable. Since 2001, this hasn’t been the case: when Ms Arroyo approved the arrest of Joseph Estrada, she was, in a sense, signing her own warrant of arrest. She has long disclaimed any desire to be popular, but she has surely hoped against hope she could, at least, count on some residual goodwill.

August proved, and events since then have repeatedly underscored this, that she will have neither peace nor security once her time in the Palace is up.

Marcos, talking to Time’s Hong Kong bureau chief Roy Cowan in 1974, said, “’Never make a big decision when you’re angry, hungry or happy.” It’s hard to see how, in the coming months, the President’s decision-making won’t be done while under the influence of one, if not many, of these emotions. To contemplate the disgrace of imprisonment or exile is an invitation to try to trick fate. The alternative is an editorial cartoon, circa 2010, with a Portuguese or Spanish customs agent asking the blasé question, “Si, besides martial law, Señora, do you have anything to declare?”

Published platforms

See my previous entries, Platforms and Platform time begins November 30.

In chronological order, the platforms thus far, are the following.

Juan Carlos delos Angeles

His platform is the party platform and preceded his candidacy.

Ang Kapatiran Platform

Joseph Ejercito Estrada October 21, 2009.

His platform was announced during his proclamation rally, but no text has been released to date.

Benigno Aquino III November 28, 2009.

Noynoy Aquino Platform of Government Our Common Credo

Richard Gordon November 28, 2009.

Manifesto for Change

Manuel Villar Jr. December 15, 2009.

Issued as coalition document in response to Makabayan Coalition; no other document issued; Loren Legarda also says her platform has been adopted by her running mate.

Nacionalista Party Platform Legarda Plataporma

Gilbert Teodoro, Jr. Not published yet.

According to Lakas-Kampi-CMD Secretary-General Francis Manglapus, the platform will be published after the holidays.

The Long View: The platform problem

FORMER SPEAKER NEWT GINGRICH ONCE gave a concise definition of a party platform in 1994 when he explained the difference between his proposed “Contract with America” and the Republican party platform. “A platform,” he said, “is what we believe.” In contrast, his proposed “management contract” was a 10-bill legislative agenda that he hoped voters would support in order to achieve the numbers required in Congress to pass them within 100 days of the session.

Senate President Manuel Villar Jr., interviewed by Ricky Carandang back when he was still shopping around for a vice-presidential candidate, shared an interesting opinion about party and coalition platforms. “Lahat kami iyan lang ang sasabihin,” he confided, to Carandang’s television audience, “lahat ng kandidato sasabihin iyan. We will say the same things … we will have the same platform.” He added, “for after all, a platform… dadalawang speechwriters lang iyan tatanungin ka. Anong gusto ninyo, 3-point agenda, 10-point agenda, 15-point agenda o 25-point agenda?”

Recently, on my show, UP Prof. Prospero de Vera pointed out that the backbone of Villar’s presidential campaign isn’t the NP but rather, the network of managers of Vistaland, of which Villar told Carandang he remains firmly in charge since he doesn’t intend to divest himself until he wins the presidency. Just how seriously Villar takes the NP is shown by its website, which still includes a link to the site of Teofisto Guingona III, who is now an LP candidate.

Which may explain why the Nacionalistas, who pioneered the party platform in 1935, didn’t bother with a party platform for the first presidential contest since 1969 in which the party has come out as a serious contender. The closest thing to a platform was finally produced upon the insistence of the Makabayan Coalition, to formalize its alliance with the NP at the end of the intricate maneuvering that resulted in Ferdinand Marcos Jr.’s exorcism from the KBL and being born-again as an NP guest candidate to satisfy those whom Argee Guevarra once (infamously) called “Joma’s Witnesses.”

Makabayan having done the hard work of crafting a platform, Villar signed with admirable speed on Dec. 15 a “statement of shared principles”; and though Makabayan insists the statement is not the NP platform, that may be as close as its coalition ally is going to get to producing a platform-type document (Loren Legarda’s nine-sentence platform apparently having lasted as long as the newsprint in which it appeared). After all, neither the NP nor Villar’s own site bothers to reproduce the much-vaunted shared principles statement—or Legarda’s platform, which she says Villar has adopted, too.

This tokenism, however, still puts the NP ahead of the Frankenstein coalition, which is still waiting, if the scuttlebutt is true, for Alex Magno to finish fleshing out its platform for the President’s anointed tandem. This, despite the PaLaKa convention at which—after praising the President to high heavens (“dapat nating ipagmalaki ang Presidente!” he said)—the Annointed One talked of a platform remarkably similar to the President’s current 10-Point Agenda. It must really be a headache for Magno to try to accomplish the kind of makeover the Frankenstein coalition expects: it is not enough to keep the President out of sight, and therefore out of mind; the usual suspects have to be gentrified, too.

As far as platforms go, Ang Kapatiran has the oldest, unchanged for some time now; Joseph Ejercito Estrada announced the adoption of one in Tondo; Benigno Aquino III published his platform and had his slate’s candidates sign on to a “Credo” of shared principles on the day he formally filed his candidacy, while Richard Gordon has a combined manifesto and platform. All four studiously dotted their i’s and crossed their t’s, as did the Comelec-rejected Nicanor Perlas.

PaLaKa’s platform problem is, of course, uniquely theirs to wrestle with, just as the question of a platform is one the Aquino-Roxas tandem had to hammer out because, as anyone who has bothered to watch Aquino grilling officials during budget deliberations over the years knows, he’s the sort of detail-obsessed legislator who wants facts and takes a hand in deliberations on policy. (But then hardly any member of the public has observed or noticed this because budget deliberations put media and the public to sleep.)

On the other hand, Gordon, Kapatiran and Perlas have platforms that aren’t coalition documents but rather, distillations of their personal beliefs, unencumbered by coalition dynamics. The luxury of beliefs—personal or collective—is something, on the other hand, that has been calculated as inessential to the electoral bottom line of the NP’s principal. It would be interesting, if only the tight-lipped circle of corporate types surrounding Villar would talk, how much time was allocated to the “Mission/Vision” exercises of their principal’s various corporations.

There remains some confusion about what a platform is or supposed to contain. A “declaration of the principles upon which a person, a sect, or a party proposes to stand,” is one such definition; a document “stating the aims and principles of a political party” is another. Yet there are voters who want nothing less than either a full legislative agenda (which puts the cart before the horse, as a party or coalition standing for election cannot plan without knowing what its numbers—and therefore, what is realistic—will be after the elections) or a sneak peek into a budget (when, aside from the administration candidate, other candidates won’t know the real score of the budget or the state of the bureaucracy until it enters office, particularly since so much has been kept secret by the present dispensation). Still, there’s been a healthy interest in political platforms this time around, much more so than in 2004.

The Long View: ‘Perlitang Tinola’

The Long View
‘Perlitang Tinola’

By Manuel L. Quezon III

Philippine Daily Inquirer
First Posted 22:11:00 12/16/2009

The Long View: How the President called the public’s bluff

The Long View
How the President called the public’s bluff

By Manuel L. Quezon III

Philippine Daily Inquirer
First Posted 23:46:00 12/13/2009

Now you see it, now you don’t

In one fell swoop, Congress and the Supreme Court has been rendered unable to exercise the Constitutional oversight they’re supposed to, when presidents impose martial law or suspend the writ.

This brings me to something I wanted to point out, considering Day One and Day Two of the joint session of Congress convened for the purpose of deciding whether or not to revoke martial law: the power, as Rep. Locsin suggested on TV in response to the announcement of the lifting, of martial law lies in its being more of a psychological tool than a legal one. When martial law was imposed, the Ampatuans were dared, in effect, to call the President’s bluff. They did not, they folded. But having folded, they then have ample opportunity, within the limited comforts of their various holding cells, to see just how toothless martial law really is.

If you go over the testimony of the Secretary of Justice, she seemed to propose that martial law allowed for warrantless arrests, searches and seizures and that with most other aspects of martial law (as commonly understood) having been stripped away under the present Constitution, that warrantless arrests and searches were the main legal benefits of martial law.

Senator Pangilinan questioned the search and seizure part, while most other questions suggested warrantless arrests were justified strictly in the sense that rebellion is a continuing crime. By the second day of her testimony, Sec. Devanadera chose to be mute and defenseless in terms of the “legal impediments” question that Sen. Biazon zeroed in on: perhaps, by this time, she was conscious of the implications of the points raised by Pangilinan and that any murder-related evidence might end up tossed out by the courts on the “fruits of the poisoned tree” principle.

Not to mention the rather shaky grounds for asserting there was a rebellion instead of say, sedition taking place.

Sen. Gordon, too, had begun to dangerously zero in on official accountability for arms and ammunition secured by the Ampatuans, officially or not, from the Department of National Defense and the Philippine National Police: he was quite obviously springing a trap not just for Defense Secretary Norberto Gonzales, but for his predecessor, who at about the same time was reiterating that the President had allowed him free rein in running the Defense department.

So all in all, the time had come to pull the plug on martial law, because whether or not the Palace had the numbers in Congress and possibly even in the Supreme Court, the political points the President initially scored had begun to be whittled away.

Perhaps on the assumption that while the cat is away the mice will play, trouble began to erupt in other provinces and the appeal of an administration ally, Rep. Dimaporo, for martial law in his province and a similar appeal by a Catholic bishop, might’ve led to an uncontrollable martial law fad on one hand, precisely pushing the President to a line even the admirers of her imposing martial law in Maguindanao expressed misgivings about, and on the other, for various armed gangs and rebel groups to step up their activities, thinking the military and police are overstretched.

Also, in terms of Congress and the Supreme Court, subjecting the Palace assertions of rebellion and its legal interpretation of martial law powers to too sustained a scrutiny, might’ve ended up laying down too many precedents other than the main one the President wanted to establish by being the first chief executive to proclaim martial law under the present Charter.

The President has once more exercised her powers and then pulled back before any conclusion permanently limiting her options in the future can be reached.

The public will now be looking to see not only if things calm down in Maguindanao, but whether the case against the perpetrators of the Ampatuan Massacre will have the book thrown at them or not.

CIDG-CIDU vs. Governor Datu Andal Ampatuan Sr., et al., IS No. XVI-INV-09L-00816 for Multiple Murder, will be the next arena on December 18, 2009 at 2 PM at the 3/F Multiple Purpose Building, Padre Faura, Manila. State Prosecutor Rassendell F. Gingoyon with Prosecuting Attorney Xerxes V. Garcia will be front and center on this one.

The initial stage will be the presentation of affidavits and other evidence, and a corresponding (what, 60 day?) period given the Ampatuans’ attorneys to respond; witnesses and even the lower-ranking accused will have to be secured for that time frame, just for starters; families of the victims, those intent on prosecuting the case, will have to be secured, too; there was initial talk of four survivors of the massacre and they will have to be secured, too. And the long tedium of the case will provide many opportunities for witnesses to recant or change their stories, or disappear, or, God forbid, families to “lose interest” in the case. And for the government’s actions to be scrutinized and its interpretation of what martial law makes legally permissible, challenged.

If any institutions deserve credit, on the whole, it’s the armed forces and the police, for being careful to avoid giving the impression they were chomping at the bit to relive the days of 1972.

Liveblogging Joint Session on Martial Law: Day Two

For a background on the issues, see Martial Law konfrontasi. For yesterday’s liveblogging, see Liveblogging the Joint Session of Congress on Martial Law. Today’s session is scheduled to resume at 2 PM and will extend possibly to midnight.

2:05 PM

TV shows empty session hall. Ricky Carandang reports five hours have been used up of the total twenty hours (ten hours for each chamber) allocated for interpellation.

2:16 PM

Rep. Palatino Tweets Sen. Pangilinan sole senator in session hall; on TV Sen. Zubiri says he, Angara and Enrile huddled in an anteroom somewhere; Sun-Star Tweets “Reps. Teddy Boy Locsin, Raul del Mar, and Boyet Gonzales are scheduled to interpellate the resource speakers in the joint session.”

2:46 PM

According to ANC Alerts (Twitter) “Ricky Carandang [reports] Ermita, Gonzales, Devanadera, Ibrado already at Batasan Pambansa for joint session of Congress. Still no quorum.”

2:47 PM

Session resumes. Sen. Pangilinan to interpellate. One minute suspension for resource persons to assume their seats. Carandang explains quorum assumed as existing from previous day unless questioned.

2:51 PM

Session resumes.

Pangilinan makes opening statement: we are interested in justice for the victims, a terrible tragedy in our country we would like to see how something like this can be or should be avoided, whether actions taken to avoid repeat; whether or not martial law has legal basis. Yesterday Sec. Ermita admitted “you may be correct there is no actual rebellion going on” (to Rep. Lagman) yet Sec. Devanadera said she concluded there’s a rebellion going on. May we have categorical statement?

Ermita: I would wish to be understood in terms of actual fighting, action; but I would request I defer to the Sec. of Justice, that is the context in which I spoke.

Pangilinan: May we have reiteration of position of Secretary of Justice?

Devanadera: There was actual rebellion at time martial law was proclaimed; per jurisprudence actual clash of arms is not required; rebel armed groups were in strategic offensive positions.

Pangilinan: Actual clash of arms is not necessary to establish rebellion?

Devanadera: Actual clash of arms is not necessary. That is essence of jurisprudence.

Pangilinan: I’m confused. Your own report to President quotes actual taking up of arms and public uprising is not necessary for rebellion… No armed clashes and hostilities prior to declaration of martial law and up to today?

Devanadera: I would like to appeal to record of PNP… (redirected to PNP)

PNP: There was an actual encounter between Special Action Force and rebels… three days ago. No casualties.

Pangilinan: Any other clashes?

PNP: Not that I know of, but firing of guns in other operation.

(AFP asked same questions: clashes? casualties?)

AFP: None.

Pangilinan: Let’s go back to March 2000. MILF rebels numbering 700 attacked nine army camps, town halls, 400 civilian hostages, 36 people killed and 160,000 displaced persons. Sec. Davanedera was there an armed public uprising?

Devanadera: I would say that.

Pangilinan: So it was an armed public uprising? Was martial law declared then? No. November 2001, Sulu-Zamboanga, 200 MILF fighters launched mortar attacks on military camps in Sulu, 160 people killed, eventually Nur Misuari accused of rebellion. Would you say this was armed public uprising?

Devanadera: That was armed.

Pangilinan: But martial law not declared then. August 16, 2008, North Cotabato… MILF occupied homes, looted barns, displacing thousands of people, at least 40 killed. Armed public uprising? Martial law declared?

Devanadera: Yes, No.

Pangilinan: Present situation: no clashes per AFP. One clash per SAF. Where is the armed public uprising? Where is the basis to say there is a rebellion? In addition, are we correct in saying rebels have not attacked any government installations? No raiding of camps; no physical takeover of government offices.

(Pangilinan reiterates past public armed uprisings, no martial law; one clash -after martial law- and absence of armed public armed uprising.)

Pangilinan: 2,400 estimated armed rebels; combatants. How many charged with rebellion?

Devanadera: Uh…

Pangilinan: 17 filed yesterday?

PNP: Rebellion charges vs. 24.

Pangilinan: Where are the rebels now? We identified they were massing up, in several areas, where now?

AFP: (lists locations, numbers)

Pangilinan: They are moving around? Engaging in attacks? Any reports?

AFP: None. They continue to bear arms and refuse to submit to authorities, we have to call on them to surrender.

(AFP and Pangilinan discuss revocation of licenses for arms; done 2nd day after massacre)

Pangilinan: Arming of these civilians, per Pres. Ramos, was by virtue of an executive order?

Ermita: An order has been issued some time ago, even during time of past presidents…

Pangilinan: But Pres. Arroyo signed order deputizing civilians for counter-insurgency?

Ermita: Well, I have to check, but past presidents authorized civilian auxiliary force, under supervision of designated officers (commissioned and non-commissioned).

Pangilinan: Many involved in massacre were CVOs with authority to carry arms by virtue of E.O. by Pres. Arroyo?

Puno: E.O. 546 basically brought in the PNP to assist AFP in supressing insurgency, among provisions was allowing deputation of police auxiliaries from Barangay Tanods and civilian organizations… This ranges from traffic enforces to municipal licensing to disaster operations, so involves virtually any sphere of barangay activities. Deputation as police auxiliaries necessary for the carrying of arms.

Pangilinan: So if carrying arms, deputized then?

Puno: Either deputized or carrying illegally.

Pangilinan: Per Caro, 23rd Nov. on Day 1, were there efforts to thwart police investigations? When police arrived on scene of the crime? Resistance? Problems? Was site abandoned?

PNP: On 1st day of incident, it was AFP that were the first to reach… (redirected to AFP)

AFP: There were no clashes.

Pangilinan: On Day 2, regional/provincial directors of PNP relieved. Did they resist?

PNP: No.

Pangilinan: Ampatuan security personnel assigned to them were recalled. Was there resistance?

PNP: None.

Pangilinan: How many recalled?

(20 PNP, 5 AFP recalled)

Pangilinan: 23 civilians, 18 PNP taken into custody; 4 SCAA companies (347 people) deactivated… Any resistance?

PNP: None.

Pangilinan: Nov. 26, you took over physical control of capitol, municipal halls; any firing?

PNP: None.

Pangilinan: On Day 4 there was inquest when Ampatuan Jr. arrested; so judiciary functioning… I’m establishing this because obviously at that point it looked like if there was a rebellion or a looming rebellion, it didn’t seem government was having a hard time -until, as claimed by this report, Ampatuan Jr. was arrested. Now deliberate and synchronized moves, per report that paralyzed government: who undertook them? Rebels?

Devanadera: May I refer to PNP? (Pangilinan reiterates report said rebels).

Pangilinan: Crippled local justice system per report. Dilangalen yesterday explained three judicial salas: one vacant because judge died; two other RTC’s on leave, two judges in Saudi Arabia with government permission. So three RTC’s function because of government inaction or approval. Interesting to note 8 NTCs, 7 of which are vacant because government unable to fill up, not because of rebellion. Before martial law, 5 warrants of arrest issued at Kidapawan, yes?

Devanadera: But we had to go to Supreme Court, that’s not normal.

Pangilinan: You mean with martial law you don’t need warrants?

Devanadera: Neither arrest or search warrants required during martial law.

(Pangilinan seems surprised; says his view is right against illegal searches or seizures continues to be available even uder martial law; what is suspended is privilege of writ; now Justice Secretary says searches and seizures allowed)

Devanadera: We confirm that is our position, charges filed will be for rebellion.

Pangilinan: How many operations of searches and seizures?

PNP: Around 8 to 10.

Pangilinan: All without search warrants?

PNP: Yes.

Pangilinan: So martial law suspends other parts of Bill of Rights?

Devanadera: Yes, for charge of rebellion.

Pangilinan: Murder cases filed before and after martial law?

Devanadera: For murder, before martial law, 12 charged; after, total 71 respondents for multiple murder. 1 filed (Ampatuan Jr.) before courts 83 murder charges pending. 24 cases of rebellion.

Pangilinan: Seems government more interested in pursuing rebellion than murder… Which has stiffer penalty? Murder or rebellion?

Devanadera: Reclusion perpetua for both, non-bailable.

Pangilinan: 57 counts of multiple murder, times 40 means 2,280 years. Penalty for one guilty of multiple murder. For rebellion it’s 40 years maximum. We should focus on murder, that sends stronger signal.

3:29 PM

Rep. Locsin: Not without irony I stand here defending martial law; nowhere has martial law been better justified or based on such incontrivertible facts. Facts that call for the most extreme exercise of police power; power not legal quibbles or legal semantics. Look at bodies, arms stockpiles. Is armed rebellion required? Where then is definition of invasion in Penal Code? Since legalization of Communist Party, ideology not required as component.

Situation has deteriorated beyond lawless violence to an obstinate refusal to render civil government by duly-constituted officials, ironically the Ampatuan. Like pornography, in a swiftly-changing world, a Justice said he could not define it but knows it when one sees it; here, unless one is morally-blind, is rebellion; illegal usurpation of offices officials formerly held; to use their powers to frustrate the law, to perpetuate injustice and impunity. This state of affairs calls for martial law however you quibble with words. Calling out armed forces was tried and found wanting; proclamation was addressed to armed forces as it was to Maguindanao: sending signal soldiers no longer to obey politicians they once obeyed and pandered to in misguided policy of deterrence. Now soldiers only beholden to law, to Executive and to Congress. Sends signal to soldiers and police they no longer have to be respecters of special persons, but laws of the state.

Thus are soldiers and police emboldened to do their jobs properly to achieve specific aim of proclamation, to arrest anyone and everyone remotely connected to massacre; no Constitutional immunity to arrest, only arrest without warrant; but I hope to crush them does not mean crushing one warlord only to set up another.

Martial law is the smallest atonement the government and Ampatuans can make for worst crime in our history: the government for arming them, Ampatuans for using them. But what of MILF? Willoughby says martial law must have specific aim, and once accomplished, martial law lifted; after all it can be reimposed again and again, as it can be reviewed as frequently. Martial law in Maguindanao has not occasioned a single abuse; soldiers kicked down Amapatuan Sr.’s door -that is not a crime in law; lese majeste not a crime, the door has no rights; the soldiers kicked the door, they forgot to kick the governor.

Our soldiers have secured fundamental rights of ordinary people of Maguindanao, whether they realize it, as we know Stockholm syndrome; government has addressed snarling refusal of a renegade provincial government; constituting a threat so certain its actuality can only be established beyond cavil by executive action. Any reasonable person knows the situation to be a state of conflict: no man in this country is so high as to be above the law, as the Ampatuans believe. The Ampatuans were the first to impose martial law without any basis; their unending thirst for power could only be slaked by murdering anyone opposing; it could only be countered by army.

True, courts functioning, offices open for business -but only for monkey business. Where it mattered, it didn’t function, as in civil registrar refusing to issue death certificates, I guess because he could not put mass suicide as cause of death for massacre victims.

Mr. Senate President, in military theory, capability amounts to intent: acts of Ampatuans brought their actions within historical precedents for martial law; as Sec. Puno amptly compared, as if battalions of AFP had gone renegade. How many are the loyalists of Ampatuans? 1,000? 2,000? Even 50 is enough; even clashes of AFP with MILF forces of that number resulted in what, 25% casualties? We were to leave our armed forces sitting ducks until Ampatuans drew first blood?

I hear danger is, if this succeeds, it will convince public to demand do it better? Well what of it? Let public suffer, paralyzed and terrorized by monsters, just to prevent soldiers from proving it can do it better? These are not soldiers of Marcos: our soldiers are securing rights for everyone against depredations of this warrior clan. Why instinctive distrust of those without whom this country would be smaller by 1/3? What is is their recompense? Ingratitude. Leave martial law, it should not take too long.

Teodoro Locsin Jr Pro Martial Law

3:45 PM

Senator Santiago says she prefers to read short academic paper on martial law. A question of law should not be considered a question of wisdom. Law must be upheld even if it entails heavy sacrifice. Second, reading constitution is not question of literacy, it requires technical skill, involving constitutional construction: words given ordinary meaning, with view of carrying out intent of those who ratified it. Constitution does not derive force from convention but ratification.

In 1986 people wanted extremely restricted martial law in response to earlier time. This binds it to strictest reauirements. 1940 definition, our Constitution not defining it, will suffice: martial law is rule of force, self-defense by the state.

I submit this general test for constitutional martial law: is it necessary for existence of state today? No. For Maguindanao province? No.

Is there an actual rebellion and does public safety require it in Maguindanao? No. There must be a state of actual rebellion, not imminent, and public safety must require it; neither exists in Maguindanao today.

(Cites Penal Code provision)

Show me the rebellion? Are we now adopting new concept of a secret rebellion? Like a woman secretly pregnant? An oxymoron! Proc. 1959 does not state actual rebellion.

The essence of rebellion is armed public uprising.

Supreme Court says motive relates to the act; the crime of rebellion carries a lighter penalty than murder; imperative for the courts whether acts committed with aim to pursuing a political agenda: revulsion against government compeling him to destroy government. Not enough, per Supreme Court, both purpose and overt acts are essential to prove the crime.

Supreme Court is categorical: acts must be accompanied by purpose of destroying government. Since I have not heard, shown, presented, any statement of ideology by so-called rebels, I say again: show me the rebellion!

I humbly submit focus must be on public aspect of safety; crimes committed by warlords against each other are dangers to their respective safety, not to the public per se; what they committed were acts of terrorism -sowing fear and panic among populace to coerce government to give in to unlawful demand.

Government committed non sequitur in proclamation; citing local judicial system non-functioning; this is anomie! Not a danger to public safety! We are debating on the basis of law! Party politics will intrude into debate. If we cannot convince colleagues in the House then we will go down with this political Titanic. But then we go to Supreme Court. For my part, I do not see martial law as a new order of society; martial law is future refusing to be born! I will vote to revoke.

Miriam Santiago vs Martial Law

4:59 PM

Rep. Golez. Let me repeat what has been said earlier, this is historic moment. Awesome display of democracy in action. We’re lucky to be alive today to witness this unprecedented joint session. This would have been made more awesome with presence of President.

Would the Executive Department agree that martial law is a power that should be used very sparingly, only in the most extreme of circumstances in order to defend the Republic and fight threats to territorial integrity?

Ermita: Affirmative.

Golez: I did study of martial law in Canada, Egypt, Ireland, Israel, Pakistan, USA, Poland, Thailand… The exercise has been very sparing. Even in Philippines, only two instances prior: 9/21/44 with Laurel; 9/21/72 with Marcos, a gap of 28 years. Now another, with gap of 37 years; no jurisprudence, really, since first was Puppet Republic and 1972 jurisprudence doesn’t apply.

Devanadera: I confirm, past martial law declared quite sparingly, and that we have a new concept of martial law under 1987 Constitution therefore jurisprudence on elements of rebellion may not necessarily apply.

Golez: Advice of legal experts say in USA, Federal Martial law banned since Lincoln?

Devanadera: I would subscribe to that.

Golez: so Americans don’t recognize national kind of martial law, only state governors.

Devanadera: In the USA, but our Constitution explicit on who can declare martial law: only the President, either for entire country or part thereof; exclusive power to exclusion of other branches.

Golez: So framers of Constitution saw it fit to be more liberal in application of martial law than so-called model of democracy, the USA?

Devanadera: Yes.

Golez: How long do you think should this martial law last, without extension? In Executive Department’s opinion?

Devanadera: Decision whether to end at 60th day or before would have to be done with consultations and based on facts submitted by law enforcement agencies. In general terms, lifted as soon as objectives of declaration are somehow achieved.

Golez: AFP PNP very impressive, report they’ve achieved so much; if 90% of mission accomplished maybe time to lift martial law? My concern is this exercise is going to be a very protracted exercise -any possibility martial law will be lifted over the weekend so when we come back, this question will be moot and academic?

Devanadera: Anything is a possibility; Executive Branch continously evaluates; as soon as conditions on the ground warrant it will be lifted.

Golez: Forthcoming? Or still looking at long period, weeks?

Devanadera: This body can also validate status on the ground as we’ve been required to submit report; one thing Executive can assure is periodic, in fact daily evaluation of conditions on the ground.

Golez: (delves into dictionary definitions of martial law: military acts as police courts, legislature, etc.) Your opinion?

Devanadera: I can’t see Power Point… (definition repeated: military controls an area, acts as police…)

Golez: Any chance military will act as courts?

Devandera: Definition not applicable to the kind of martial law we have…

(wrangling over absence of specific definition in Constitution)

Golez: Is DILG still maintaining list of private armies?

Puno: We maintain a list, all these things are being monitored.

Golez: Was Ampatuan part of this list before Nov. 23?

PNP: Yes.

Golez: So PNP was aware Ampatuan maintained armed group. What action was taken to disband this private armed group?

PNP: Effort is to monitor and conduct operations against those possessing firearms, Ampatuan armed group reported on my officers supervising civilian armed groups, this was the, uh, status of data…

Golez: If this Ampatuan armed group was disbanded before Nov. 23 this massacre would not have happened?

Puno: That is correct. What PNP does is monitor amnesty program; up to Oct. 30 we urged registration; there was problem with so many authorizations; after amnesty objective was to segregate and account; Oct.-Nov. this was done; beyond this, objective was to undertake expanded, enlarged program versus illegal firearms, this is what’s going on now; in response to your question, as of Nov. 30 they had not yet registered all the firearms they were supposed to under provisions of amnesty. We were not yet at the point they were going to be disbanded; but we had received reports.

Golez: I was informed travel from Awang airport to Ampatuan, arms bristling to naked eye could be seen. Final question: on multiple murder case, on mass murder case: this will be treated as a crime under Penal Code and not subsumed under rebellion?

Devanadera: Yes, because mass murder not in furtherance of rebellion and so cannot be subsumed under rebellion.

4:30 PM

Session suspended to allow Congress to answer its collective call of nature.

4:58 PM

Session resumes.

Senator Cayetano begins with typical bible quote. This is precedent-settting session. I’m used to fighting bad presidents, first time fighting a bad precedent.

There is no doubt all want justice; all of us are fed with what is happening with private armies, the feudal system nationwide. It is unfair for people in Mindanao to believe we don’t care about the massacre; we are also supportive of AFP and PNP; but in fighting a monster we should not become one in the process. And so, we should refer to Constitution: we are for justice and reform, but is martial law an instrument for reform or a device for survival of the state?

Three issues before us. First. What are relevant facts? Officials provided those or at least, report. Second. Based on facts, is law being applied correctly? Assuming facts are true, does that constitute rebellion? There are elements to crime, do facts fit elements? This answers whether President can impose martial law. Supreme Court can examine facts. Third questions is discretion: should the President declare martial law?

Let me start with should the President declare martial law? We know administration has contemplated martial law before. So many scandals, and no one believed there would be a peaceful transfer of powerl things settled down and now this; but let us not speculate.

People in these areas want reform: remove feudal system, fear, buying elections. Rest of country asking what is the next move of Arroyo administration.

What can you do under martial that you cannot, without it?

Ermita: From my experience martial law today different from martial law under 1973 Constitution or in 1972 under 1935 Constitution. Our authorities able to invite people, suspects to be investigated because of suspension of writ; I can say that at present we’ve been able to accomplish so much since Dec. 5 because AFP able to unearth arms, enter premises, which wasn’t possible without martial law; PNP able to hunt down people, as prior to martial law judges couldn’t even issue warrants of arrest or seizure orders. Now what remains is to see if we have done enough, forces in the field have to report.

Devandera: Two questions. Can President declare martial law? (refers to Constitution: President to the exclusion of all other branches empowered to do so). Should she declare martial law? Because it’s exclusive prerogative of President, then should should be answered in affirmative.

Cayetano: I was referring to factual and legal basis. Assuming your report correct: moving to should, it’s up to her if she will; but up to us whether to revoke and citizens, to judge; this is precedent-setting whatever our decision is. For example if Binay, Trinidad removed, if government says there are armed people, government might declare martial law. What can we do when there’s martial law that we can’t without it? I submit you can do what you’re doing now, without martial law. Raids -possible with out martial law. Invitations -possible without; holding people -possible, 72 hours with suspension of writ, 36 hours with writ.

Devanadera: We have to view Proc. 1959 under existing conditions. We have seen quality and quantity of arms, ammunition in Maguindanao, with such magnitude, ordinary law-enforcement group or task force will not be able to address existing problems. Under martial law coupled with suspension of writ, law enforcement agencies able to make necessary arrests unimpeded by usual requirements of law, and warrantless searches implemented as part and parcel, inherent in implementation of martial law, and we have General Order regarding that.

Cayetano: Agree and disagree. Agree under normal law enforcement, cannot address Maguindanao problem. Disagree because there is the calling out power; second there is suspension of writ; third comes martial law. All military is doing under calling out powers. Not only military but PNP moving.

Devanadera: Calling out power or declaration of state of emergency was already done at onset. However as proven by reports, calling out power was not sufficient.

Cayetano: Why, what did martial law add, setting aside warrantless searches, what else did martial law add to calling out powers?

Devandera: After arrest of Ampatuan Jr., something else happened, not ordinary lawlessness, not only looming rebellion, but actual.

Cayetano: Is it not possible to address rebellion without martial law?

Devanadera: You may declare martial law; this is up to exclusive power and judgment of President.

Cayetano: But we can review, and unlike Supreme Court which only looks at facts, we can look at judgment. Whether President exercised sound judgment. Congratulations on achievements but everything you’ve accomplished could have been achieved under calling out powers.

Devenadera: But there was actual rebellion.

Cayetano: Assuming actual rebellion, why couldn’t this be tackled by calling out powers? Under martial law powers, what was added? Without martial law, was there another way to arrest them?

Devanadera: Yes we may do that but it depends on the size of the magnitude of the rebels and the quantity and quality of the arms, and President exercised sound judgment to use martial law. That’s why we’re here to comply with Constitution.

Cayetano: Has President ever made mistake in judgement? I remember her saying I… am… sorry, I made a lapse of judgment…

Devanadera: Is that agenda for today?

Cayetano: No but at question here is soundness of President’s judgment. Arrests, seizures could have been accomplished under calling out power and ordinary laws. There is also the Human Security Act-

Devanadera: That would be difficult, the element of demand.

Cayetano: Before they rebelled, they already had arms but they weren’t rebels; after massacre they were rebels-

Devanadera: Factual basis was after arrest of Amaptuan Jr.

Cayetano: But after massacre they became rebels; before arrest, they were armed; after the arrest, they became armed groups; but while they opposed being arrested they did not declare secession like MILF. Public suffers from misunderstanding -that only martial law could have accomplished what you needed to do. So for example, civil courts only malfunctioned in Maguindanao, not nationwide; Supreme Court functioning, gave you substitutes.

Devanadera: Your question is, are there other means of addressing the problem other than martial law? Constitution grants President that extraordinary power; Sec. 18 does not require some other means of addressing an extraordinary problem; Constitution intends this sole prerogative of President subject only to Congress…

Cayetano: But used sparingly. I’m trying to find out what went through mind of President, security group, why -or merely to establish a precedent? Cannot view martial law solely in terms of Maguindanao, but also what’s been happening in country over nine years. Defense Secretary for example, while expressing personal view, has proposed revolutionary government. If I were him, wouldn’t he then ask me what I’m asking now? So what basis do you have for suspending Bill of Rights during martial law, with regards to searches and seizures?

Devanadera: Only for searches in fulfillment of martial law to quell rebellion: for example, when arresting people, we cannot remove other duty to look for example, for arms, part and parcel of implementing martial law to quell rebellion. Presence of arms and armed groups that make the particular offense rebellion.

Cayetano: Question is, what law tells you that if there’s martial law, you do not need a search warrant? Experts in criminal law say exceptions, like plain view, brandishing a gun. But that doesn’t need martial law; where does it say during martial law, Bill of Rights suspended?

Devanadera: We should not lose sight of objective, an extraordinary police power addressing extraordinary situation; if suspension of writ can be done, then lower right against searches must necessarily be part and parcel of quelling rebellion.

Cayetano: So Arroyo administration theory is suspension of writ suspends other rights? If illegal search, you cannot use evidence. That’s the danger – the risk all evidence will be thrown out by the courts. Then the Ampatuans will go free. Fruits of poisonous tree doctrine. So what military is now collecting may not be used as evidence. For example, Ampatuan residence aren’t going anywhere, surrounded by troops; to obtain warrant would be safer than risk creating an Arroyo doctrine saying you can suspend Bill of Rights in martial law.

5:33 PM

(Ermita reads Archbishop Quevedo statement into the record, supporting martial law)

Cayetano: Can you explain to us decision-making process of President, Puno said he was initially against it; who recommended, who was there, how was decision reached?

Ermita: The Cabinet National Security Group met after massacre, composed of DND, DILG, DOJ, DFA, NSA, AFP PNP heads. Briefing given by AFP and PNP on details that happened on Nov. 23 massacre or incident. Questions from Cabinet, President informed of deployment of forces, especially additional forces. Hence basis for issuance of Proc. 1946 declaration of state of emergency…

Cayetano: Who recommened to President?

Ermita: Not one individual, series of exchanges, discussion, whether existence of state of emergency needed to be upgraded to suspension of writ, martial law.

5:40 PM

Deputy Speaker Raul del Mar: The bone of contention, discussed amply, is the matter of whether there was a state of rebellion at the time the proclamation was made. Strong arguments there should be an actual clash of arms, actual firefighting vis-a-vis the opinion and arguments of Executive panel that confluence of events and situations they narrated constituted likewise a state of rebellion. Let me ask Sec. of Justice if she is aware of opinion of foremost constitutionalist, and member of Constitutional Commission, Fr. Bernas and his position in PDI (quotes Bernas’ opinion that if Penal Code to be followed, government has to show if there is ongoing rising against government; but if rebellion as required for constitutional law only that threat is there, then Penal Code definition need not be met).

Devanadera: Bernas’ discussion is in consonance with the way martial law provided for under 1987 Constitution. In modern times, anyone can bomb anything with use of cell phone and computers, therefore what is important in what Bernas wrote is that there is the presence of an armed force, and most important, effect and importance of armed force, which has effect of depriving chief executive of ability to implement laws. Then deprivation can be considered rebellion for purpose of fulfilling basis for martial law.

del Mar: What offense cited in cases filed? Multiple murder or rebellion?

Devanadera: Those arrested for participation in rebellion, then rebellion charges for 24 people; in cases where evidence warrants that they participated in multiple murder, CIDG filed complaint with DOJ for multiple murder and they will have to go through regular preliminary investigation.

del Mar: I recall in 2003 there was a coup known as Oakwood Mutiny, during the standoff between government and rebels, a state of rebellion was proclaimed by the President, even if there was no actual clash of arms, no firefighting. Response?

Ermita: You are referring to Oakwood Incident, I recall there was that uprising by some officers, after the event, they all were arrested and charged with rebellion, fact remains as far as authority was concerned that was an act of rebellion.

del Mar: In that incident, not a single shot was fired.

Ermita: You’re right.

del Mar: What now? What are your plans or timeframe? Will you use entire 60 day time period if proclamation not revoked, or have you made progress such that you are ready to recommend a shorter period to lift the same?

Ermita: We wish to inform this body we will have to ask our units to come up with a report, to see how things are going, what extent power of military and police has to be exercised under proclamation.

del Mar: What is feedback from people of Maguindanao? What are their sentiments? Accepting, welcoming, martial law? Vehemently against? You would have clear idea by now how proclamation is received in area.

Ermita: The AFP, PNP state we have not received any complaint, and that is why I read into the record a very important statement by no less than the Archbishop of Cotobato, it seems there is general acceptance and satisfaction with proclamation of martial law in area.

(del Mar asks if arrests documented, names listed, families concerned informed; Ermita says units have records of arrests and relatives properly informed; no one kept incommunicado or in isolation)

del Mar: Last night colleague joked proclamation might be lifted before we finish our voting; but that is my earnest hope.

5:55 PM

Sen. Gordon pounds Defense Secretary on definitions of rebellion. What is objective of their rebellion?

Gonzalez: They want to continue their control over Maguindanao.

Gordon: Rebellion to you? They were armed and permitted for a long time? With our permission! So where’s rebellion there?

Gonzalez: They were making it difficult for the President to exercise her powers…

Gordon: So why did they talk to President’s representative? Dureza?

(Enrile asks Gordon not to hector Gonzalez)

Gonzalez confirms Gordon’s assertions: Dureza went; Ampatuan Jr. taken into custody; facilities secured; arrests undertaken; Amaptuan Sr. arrested; and no firefights each step of the way.

Gordon: In short, the government had liberty to attack For there to be rebellion, there has to be a purpose. Who is their ally? MILF?

Gonzalez: No. They have become big enough.

Gordon: Did we give them mortars?

Gonzalez refers to chief of staff; Ibrado says he will check; Gordon says no, you are chief of staff, tell me; Ibrado we are checkingl; Gordon says he will accept; quizzes Ibrado on caliber, armament specifics; Ibrado runs down list; Gordon asks if aware .50 cal machineguns taken? Yes? Runs down list of arms; Gordon shows picture of munitions..

Gordon: These pictures of ammunition show PNP, DND, government arsenal markings. May I ask how these people got firearms and ammunition -marked 2009!

Gonzalez: I don’t have an answer right now, I am having it investigated.

Gordon: Has anyone been investigated? There are receipts, registries, people are liable for loss or sale, if you find DND-AFP issued armaments in the hands of the enemy, doesn’t it shake and rattle your bones that they end up in hands of enemies? Are you doing anything to apprehend these people? There are serial numbers! Where are the people who sold these to the enemy? Where is the report?

Gonzalez: We are studying.

Gordon: Maybe we have rebellions because everything is being studied!

(Gordon zeroes in on difference between rebellion and multiple murder; President is asking us not to revoke martial law; as a lawyer, if we declare martial law and suspension of writ valid, then lawyers of Ampatuans will insist their clients charged for rebellion and murder subsumed; it’s like we’re giving passes to the murderers)

Devanadera: The massacre happened Nov. 23. Martial law after arrest of Ampatuan Jr., that was when rebellion determined. So in murder cases, they were prior to martial law; after martial law, where evidence is for murder, that will be filed but if warranted for rebellion, then accordingly charged.

Gordon: We must be clear because attorneys of Ampatuans will try to prove reasonable doubt; but why did it take over 50 people to die, when government knew the Ampatuans had mortars, etc. Leaves sour aftertaste that after that, then claim of rebellion; it’s clear to me you’re using it to apprehend; but no factual basis for martial law. If these people are rebels you haven’t caught all; you haven’t caught all 100 involved in massacre; then some murderers can claim status of rebels; but didn’t murderers hide corpses? Hide and destroy government property, vehicles? Therefore they will insist, not on 57 counts of murder, they can insist on 1 count of rebellion?

Devanadera: Only if crime committed in furtherance of rebellion.

Gordon: Only if you can prove murder; but most would be charged merely with rebellion (more wrangling with Devanadera). Now isn’t it duty of DND to trace serial numbers and lot numbers?

Gonzalez: We can check if numbers in our inventory but not correct to assume all serial numbers in our possession.

Gordon: My father was assassinated. Americans were able to trace firearm, where bought. I am chagrined DND Secretary cannot trace; Teodoro said we have too few soldiers and guns, hence easy to trace.

Gonzalez: I will try.

Gordon: Today’s Human Rights Day. If we make martial law easy because of tyranny of numbers and not because we thought it through, we’d go against the intention of this Constitution which I voted and campaigned against, to put safeguards in place to limit martial law. Consequence will be late night arrests, etc. I don’t want government to confuse public between rebellion and murder; rebellion is crime against public order, but activities of government have not been disrupted and Sec. Puno in charge of ARMM, even Ampatuan Sr. When this issue is forgotten, the culprits might be amnestied. Let’s be careful -government by its own admission supplied arms to Ampatuans. Now because of one Ampatuan, the whole country is taking a hit. Is it true AFP (via spokesman Brawner) on Nov. 30 said no need for martial law?

AFP: That is correct, during that time.

Gordon: But now you need martial law?

AFP: Yes.

Gordon: What has changed since then? Because I have another statement from Sec. of National Defense.

AFP: As said yesterday and today, that conditions that uh, existed, uh, that the… the presence of armed group impeded chief executive from exercising…

Gordon: I asked you earlier, you were unimpeded in securing capitol, etc. Are you engaging in firefights, have soldiers died? Isn’t it true 100 hostages in Agusan? Martial law there now?

Ermita: I would venture to say Brawner’s statement on Nov. 30, in view of spokesman at the time, no need, but he’s not privy to meetings of higher authorities, therefore not in a position to be declared, he thought it was safer to say that; but in continuing activities of armed forces, they started discovering the presence of armed groups, and at the time in the process of disarming CVOs, therefore, meanwhile, investigating units started having difficulties in getting witnesses because they were afraid for their lives; only martial law did witnesses come out and evidence was unearthed. I wouldn’t be surprised if even Sec. of Defense wouldn’t know, at the time, if situation called for martial law. So what happened between Nov. 30 and Dec. 4 to justify martial law, well we’ve explained all of that…

Gordon: This worries me, I assume when a spokesman speaks, he knows what he’s doing. Now as for the rest, President can call out armed forces, not necessarily use martial law. I’m also bothered by allegations justices afraid to do their jobs, we don’t need martial law, you could assign security to judges… 57 people were killed mercilessly, butchered, disfigured, the photos are incendiary. But if we declare martial law, the issues may be diverted: 57 souls died, including passers-by; instead of speeding up action of government, why did President have to send a representative, why didn’t police swoop in to conduct arrests immediately!

Ermita: We wish we could say we should have done that, but there’s such a thing as due process, you can’t just snatch people on mere suspicion, it requires sending investigators, and finding things out… At least we avoided hot-headed procedures in 1972, now soldiers, police know how to methodically do things.

Gordon: I do commend the soldiers and police doing their job; but I do not commend those who helped the Ampatuans increase their powers.

6:30 PM

Rep. Maza zeroes in on Palace statements insisting President not turning her back on friendship with Ampatuans. Are they still friends?

Ermita: We know the Amaptuans committed horrible crimes; let the axe fall where it should; so for now, our President has no relationship with Ampatuans whatsoever; and the statement you quoted was personal statement of Lorelei Fajardo, was not President’s sentiments and she was called to task.

Maza: Aren’t they allies?

Ermita: They were, when they weren’t breaking the law; but now that they broke the law, you can be assured they are not.

Maza: Is it true Maguindanao gave President 200-300,000 votes in 2004?

Ermita: It does not mean that a big margin was achieved by breaking the law, big margin does not mean someone becomes immune to the law.

Maza: Political and not just legal context required for martial law. President had authorized CVOs, Cafgus, to be extension of PNP, Arroyo signed 546.

Ermita: Yes, but President did not sign E.O. to favor any one side, like Ampatuans. Applied to similarly-situated local executives as required.

Maza: E.O. 546 was issued after the death of a relative of Ampatuans, so they required security; so one response of President was to arm private individuals to help secure Ampatuans?

Ermita: It applied to all, not to address a particular need.

Maza: Two issues existed; one aspect is the horrible massacre; the other is warlordism, existence of private armies. Correct, these were the two main problems?

Ermita: Yes.

Maza: Why did responding to these require martial law?

(all sides reiterate government response, arguments pros and con, etc. Devanadera insists that since massacre not undertaken in furtherance of rebellion, murders cannot be subsumed into rebellion charges; neither side concedes. Maza gets PNP to certify no arms issued to CVOs; AFP says firearms only authorized for Special Cafgu -organized by local government units- and that firearms issued have been recovered; more wrangling over source and number of arms.)

7:02 PM

(The discussions are getting redundant. In my opinion, Locsin laid out case for the government, Santiago, the case to reject martial law. Will update if anyone comes up with anything new.)

8:15 PM

Sen. Villar: First, we should not forget those who were killed in the massacre. Second, Maguindanao was a rich province, based on my readings, back in the 19th Century; now it is one of the poorest provinces. In this declaration of martial law, and the massacre, the effect on the province is great. Minimum wage in Maguindanao is 200 Pesos a day; many people have no jobs; the Human Development Index is comparable to Swaziland…

What will happen to Maguindanao now? We know the effect will to wreck commerce and tourism, not just there but in Mindanao and the entire Philippines. If martial law ends, what will happen to the people of Maguindanao, they may end up neglected by the government. Somehow, something must be done to minimize or mitigate the effects of the situation Maguindanao, the ARMM, and all of Maguindanao. The government must have a clear program concerning what it will do.

Ermita: Maguindanao is one of the poorest provinces. Even before the massacre, the government had programs for livelihood, emergency employment, infrastructure; because of this, you can be assured the President has instructed departments to come up with specific programs and projects, with or without martial law, as is being done in all poor provinces. We are trying to minimize effects on commerce.

Villar: I wish answers will be more specific, it’s extremely important for provinces to be left to fend for themselves; we shouldn’t underestimate effects of the massacre and martial law on the region and the country, I want these concerns to be addressed by the government. In addition, I’d like to know, what are the plans after martial law is lifted, what will the system of government be? Will those who need to be replaced by dismissed?

(Ermita passes question to Puno) Puno: In terms of local officials, Local Government Code and Oranic Act provides for placing officials, by means of normal process of successor, or powers of regional governor of ARMM; in areas where there are failures of election, powers of appointment for governor.

Villar: Names of those to replace those to be replaced, are they ready?

Puno: Yes.

Villar: Good to have an idea, it’s helpful to know if there are names because there might be a breakdown, it’s comforting to know indications there will be replacements on hand, especially if martial law becomes protracted. But best of all if martial law lifted soonest. Many arguments for or against martial law, but I’m bothered by effects on economy. To Sec. Ermita, can you answer -because of foreign coverage of the situation, placing us in a bad light- is government doing something to prevent national image being destroyed, or to mitigate effects of bad publicity on the economy?

Ermita: We are truly endeavoring to return the area to stablity and I’m sure the whole world is following our efforts to prove to the world the government of the Philippines is doing all it can to restore stability. Department of Foreign affairs has been instructed by the President to produce and distribute information materials so they can answer questions about what is hapening and the steps government is undertaking, that the President is doing what is necessary to provide relief to the situation and improve our national image, by explaining what the developments and responses will be.

Villar: What is our view now, on CVOs and how will we reform them so as to avoid future incidents of this type?

(Ermita passes question to Puno or PNP) Puno: Just to clarify, CVO applies to all civilian volunteer organization, they’re not Cafgu… CVOs assist the government whether for disasters or security, peace and order, and when they are used for peace order it’s not automatic they’re attached to security agencies; only when CVOs are deputized as police auxiliaries are they authorized to bear arms, this is widely misunderstood by the public. Now it is against the law, at the first sign of trouble, just to arm CVOs, they need authorization and permits from PNP.

8:33 PM

(coverage interrupted by report of military trucks bringing evidence to General Santos City ambushed in Ampatuan town, Maguindanao)

8:40 PM

Rep. Dimaporo: I oppose revocation of martial law. The discussion is too legalistic… I would like to clarify with Gen. Ibrado, that there was no resistance?

AFP: We employed 4,000 troops in that area and when they entered the armed group of Ampatuans recognized superior firepower of our force.

(Dimaporo reiterates government arguments; his questions oriented towards reiterating his desire for martial law in portions of his province; but Ermita -who is tired, refers to PNP as Constabulary- responds situation in Maguindanao more grave; but will note concerns of Dimaporo)

9:04 PM

Sen. Biazon goes through military documents, pointing out orders given for military to restore basic services, to suppress lawless violence; commends heads of AFP and PNP for insisting on clear, unambiguous mission orders and clarifying powers that had been left vague in civilian orders; says the generals issued a joint letter of instruction to soldiers and policemen giving terms of reference for activities and powers to exercised: spelling out, in particular, the constitutional restrictions on martial law. Biazon suggesting military and police officials more scrupulous about constitutional safeguards than civilian superiors.

Biazon asks if orders to military to restore government services isn’t tantamount to supplanting civilian authority.

Devanadera: Joint letter directive must be interpreted with consideration of different references; military will not supplant civilian authority, military is to provide security to enhance civilian authority.

Biazon: But Instruction Number One ordered military to restore government functions. As a martial law administrator, how is officer supposed to do that? A soldier cannot order, for example, provincial board to meet. Martial law does not supplant legislative assemblies. Military cannot compel them to meet or convene. Question: if an elected chief executive of a locality disappears, isn’t it the assembly will provide somebody, or designate someone to perform executive functions and powers?

Devanadera: Regarding the local government succession in ARMM, let me refer to Sec. Puno.

Puno: Actually joint department order, General Order, joint letter of instructions need to be taken together; there is no mention anywhere of a martial law administration; the correct title of officer-in-charge is commander of the joint security coordinating center, this describes activities to be undertaken by military police; these orders were undertaken as implementation of Proc. 1959 and General Order 11; they state that everything to be done within limitations of Constitution. AFP joint actions shall support objectives, to restore government functions, suppress lawless violence. These were understood by corresponding services was that they were called upon by civilian authorities in area to restore civil government.

Biazon: If I received these, I would ask, what does mission number one mean, telling me to restore, not to assist, government services. For example, what resources will I use, for example, to ensure payment of 13th month pay, as administrator in the province, is that my job?

Puno: Orders instructed suppression of lawless violence; supplementary orders clearly state military and police shall support, with reference in turn, to Proc. 1959; what specifies specific acts for commander is joint letter of instructions issued by AFP-PNP.

Biazon: As a former soldier, with receipt of these documents I would still be confused. To Sec. of Justice, you made two remarks in the form of answers. One, you made a reference to the fact that when the martial law directive was made, there was rebellion, on Dec. 4. Why did you use past tense?

Devanadera: To be very clear on that, might have just been a grammatical error.

Biazon: Second, your remark where you said martial law was declared because of what had got to be done, should be unimpeded by the usual requirements of the law. Martial law was declared to remove those impediments required by law, what impediments?

Devanadera: What uh, what is clear is that at the time of the proclamation of martial law, at that time, it was already determined that the actual rebellion has started, and uh, I don’t know if I just…

Biazon: You are not answering my question. What were the impediments required by the usual requirements of the law that needed martial law to remove them..,? What are these impediments?

Devanadera: At the time…

(heated response from Biazon, who demands what are the impediments)

Devanadera: The existence of a rebellion.

Biazon: Oh my God, that is not answering my question! What are the impediments presented by the usual requirements of the law that had to be removed by means of martial law?

Davanadera: What is being quelled is rebellious acts, we can regard these as the impediments…

Biazon: Secretary of Justice cannot present the impediments.

9:27 PM

Sen. Roxas makes inquiry about evidence being transferred at night (with reference to ambush a few minutes earlier). Enrile instructs AFP and PNP to provide a “cogent explanation” why possible evidence to a crime were being transported at night.

9:30 PM

Rep. Dilangalen: Here’s a text message, a certain Capt. Ballaga, Scout Rangers Special Forces, is with a group of military sources, now in compound of Ampatuan Sr., they are going to desecrate three of the tombs of children of Ampatuan, Sr. This is offensive to religious sensitivities… Soldiers plan to sleep in the house because first time they will be sleeping in a mansion. This is one of the abuses reported to us; the other day in provincial hospital of Maguindanao they tied down men and touched private parts of women there.

Speaker says he is sure the authorities will do utmost to verify the information. Enrile asks Chief of Staff to look into the matter and submit report to joint session, as this might have very serious implication about conduct of men in uniform during martial law.

AFP: We have already communicated to our troops no such action will be done.

9:34 PM

Session suspended until Monday, 4 PM.

The Long View: Kicking and screaming

The Long View

Kicking and screaming

By Manuel L. Quezon III

Philippine Daily Inquirer

First Posted 19:10:00 12/09/2009

MY UNDERSTANDING IS THAT IN THE 1986 Constitutional Commission, Francisco “Soc” Rodrigo bitterly opposed making the two chambers of Congress vote together, as essentially a unicameral body, to approve or reject martial law. The proponents of the scheme argued, as Fr. Joaquin Bernas, SJ, recounted last July, that “the House of Representatives would be more protective of liberty and could then neutralize the vote of the Senate.” It was a peculiar assumption, considering how both chambers reacted to martial law in 1972, with the House being more willing than the Senate to come to terms with Marcos.

It seems that at one point Rodrigo pointedly proposed that if an exception to the bicameral nature of Congress was going to be dispensed with, then the commissioners should have the courtesy of not including the future Senate and assign responsibility to the House, for what was being proposed was to simply annex the Senate to a House decision.

Still, the proponents of merging both chambers to deliberate on martial law and the suspension of the writ were probably correct, as far as they understood those who had lived through the dark days of the dictatorship. After all, in 1989, faced with a real rebellion, both chambers convened, and stood their ground: where once the Batasan had been the dictator’s kennel, representatives gathered in defiance of Gregorio Honasan and friends. The Senate undertook similar moves.

But that was under Speaker Ramon Mitra while today we have Speaker Prospero Nograles. The latter and his colleagues practically had to be dragged, kicking and screaming, to play host to a joint session. Not that they had any doubts over the outcome; it was just they didn’t even want to bother with a ritual rubber-stamping of the President’s actions in Maguindanao. With public opinion, at best, divided on the appropriateness of the President’s proclamation, a joint session presented too many opportunities for raising inconvenient questions. Both about the President’s mixed motives—pushed to action by public indignation over the Ampatuan massacre, on one hand, and paralyzed by that possibility that either the Ampatuans might start spilling the beans or uninformed investigators on the ground might discover evidence embarrassing to the administration, on the other—and the House being less interested in oversight and more in finding yet another excuse to demonstrate obedience to the President.

As it is, Andal Ampatuan Sr. had to be whisked away from Davao Doctor’s Hospital by means of a ruse so that even as he was being transferred to a military hospital, there wouldn’t be the risk of his blurting something out to the media. Trying to avoid comparisons to Marcos’ martial law, the government has given the media some latitude in Maguindanao, to the extent that the discovery of a sackful of voter’s ID’s in an Ampatuan property couldn’t be suppressed. Any more discoveries like this, and the Frankenstein Coalition will end up in the dock along with the Ampatuans.

Even Archbishop Orlando Quevedo’s defense of the administration was marred by the courts in Cotabato City going on holiday to mark the Feast of the Immaculate Conception. Prosecutors in General Santos City were informed that their intention to file rebellion charges within the 72-hour deadline imposed by the Constitution was thwarted by the Catholic holiday leading to the closure of the courts. Which raises the question of whether the archbishop ought to be charged with rebellion for preventing government from doing its job.

“I hired him as a man, but he serves me like a dog,” a former president once said of a particularly bootlicking subordinate. The same can be said of our legislators whom the Constitution expected to have a sense of urgency and independence in the face of a presidential proclamation of martial law. The speaker himself at first said he felt a state of emergency sufficed, though in the same breath he did venture the opinion that Congress couldn’t comply with its constitutional requirements because it would be difficult to muster a quorum.

In the end, it seems a quorum, for whatever reason—patriotism or the pork barrel—could be mustered, but the speaker kept venturing a preference for expressing approval by inaction, while grousing about the Senate and the public relations disadvantages of having to take its opinions into consideration until the moment both chambers actually start functioning as a merged body. There will be grandstanding, he grumbled, and fewer of them than us, he complained. And to what purpose, the subtext of all his commentary went, other than to make our desire to let the President be more difficult? What inconsiderate bastards.

Without the benefit of martial law or the resources of the Department of Justice, the Commission on Human Rights has, in the meantime, focused on the Ampatuan Massacre, leading to all sorts of inconvenient possibilities, ranging from the possibility there remains a 58th victim to unearth, and other massacres to uncover, raising questions similar to the ones that have cropped up to bedevil the President and her apologists with the official to-do about unearthing the Ampatuan arsenal: How can you feign surprise and dodge culpability for these discoveries?

The night before Congress was due to convene, Executive Secretary Ermita filed an amendments to the flimsy report of the President, deleting the sentence “More importantly, a separatist group based in Maguindanao has joined forces with the Ampatuans for this purpose.” It might give the impression, Ermita said, that they meant groups other than the Ampatuans themselves. Which only goes to show that martial law was a public-relations exercise, not a well-thought out means to achieve either justice or an authentic rule of law.

Liveblogging the Joint Session of Congress on Martial Law

(For a backgrounder see my entry Martial Law konfrontasi.)

4:08 PM

Ricky Carandang reports quorums exist and joint session will begin shortly. Expected to last until 9 PM with continuation tomorrow. Each chamber will have 10 hours alloted for questioning; administration officials will testify as “resource persons.”

4:11 PM

Both maces in their stands, signifying session has begun.

4:14 PM

Kabataan Party List Tweets “opening prayer asks for discernment, wisdom on whether or not to revoke martial law, justice for victims of Ampatuan massacre.”

4:17 PM

UP Law Dean Leonen on ANC expresses opinion House members may actually display some independence because it’s an election year. He expects administration officials to supplement President’s report with “new evidence” of rebellion. ANC Alerts Twitter account reports Leonen’s opinion: Rebellion case vs. Ampatuans to continue even if Congress revokes martial law in Maguindanao.

4:19 PM

The Lobbyist Twitter account reports Senate seated to left of rostrum (facing it), House to the right. Senate has quorum. Roll call of House ongoing. 147 votes required to approve/reject martial law.

4:26 PM

Rep. Cuenco quizzing Speaker on rules adopted for joint session. Asking if motion to revoke Proc. 1959 can be amended? Nograles: No. Cuenco: Sixty days or nothing? Nograles: Yes. Rules submitted for adoption; Senate approves. House moves to consider President’s report.

4:29 PM

One minute suspension per House Majority Leader Defensor.

4:31 PM

Session resumes. House and Senate move to include the supplementary report to President’s report. Zubiri moves to suspend session momentarily to allow arrival of President’s representatives.

4:38 PM

Session resumes. Speaker informs body AFP Chief of Staff Victor Ibrado will be late, plane arrives from China later; DND Sec. Gonzales is in Singapore and won’t be appearing until tomorrow. Underlings will substitute for both today. Enrile formally confirms he also received phone calls Speaker mentioned.

4:40 PM

Sen. Roxas is recognized: points out schedule was not secret, joint session moved 24 hours; why can’t Gonzales make it? Enrile says he can’t answer, respectfully suggests Defense Secretary be asked when he appears. Roxas: why not Ermita, since he approves all travel? Enrile asks Ermita to answer. Ermita replies “because of important mission… negotiations between GRP-MILF requiring DND Sec. be accessible for immediate consultation.”

4:43 PM

Camarines Sur Rep. asks why constitutional law authorities haven’t been invited. Speaker says purpose of joint session is “merely” to listen to factual basis for Proc. 1959.

Sen. Gordon: We make history today. First time for a joint session to review factual basis of martial law. This is not a surprise; Constitution is clear Congress must be convened. I feel very disappointed and diminished that Sec. of National Defense who I saw last night in a hotel, and the Chief of Staff will not be here. To my mind if I may be so bold, we are a co-equal branch and we must review, it behooves administrators of martial law to appear before representatives. Their non-appearance suggests government case is weak; their leaving indicates everything under control (proceeds to disquisition on checks and balances). Expresses dismay at executive department’s brushing off Congress.

4:49 PM

Enrile makes soothing comments about Gordon’s speech.

Rep. Dilangalen: Cites Constitutional requirement for President to submit Report; parliamentary inquiry: why is the President not here? This is history. Speaker: the President has substantially complied with Constitutional requirement. Dilangalen: That’s a given matter, does the President not have any courtesy of informing us personally? I ask this because I’m from Maguindanao, Datumanong and I very much affected; considering historical significance of this event, we thought if President declared martial law, we also believe the President should be here and explain to us. Only Datumanong and I can experience what it’s like to represent an area under martial law; she may not consider this important to her? Why is she not here?

Speaker cites rules providing only the appearance of those already sent by chief executive.

4:53 PM

Brief recess to permit representative of Chief of Staff to take his place on the floor. Leonen on ANC bothered by Speaker answering for chief executive when Executive Secretary is there as alter ego of President. Leonen agrees with Dilangalen that President ought to have appeared.

4:58 PM

Session resumes. Secretaries Ermita, Puno, Devanadera, PNP Chief Versoza, Gen. Maclang representing Gen. Ibrado attending.

Sen. Pimentel raises parliamentary inquiry: Reiterates President’s non-attendance; she cannot be compelled, but contends, since no precedents to go by, furnishing copies to legislators is not the report per se? Enrile: President has option to report in person or in writing; she opted to report in writing that “appears to contain facts” enough for deliberations; no grounds to compel President; Constitution precisely accorded her options.

Majority floor leader tries to introduce administration representatives…

Rep. Teddyboy Locsin: parliamentary inquiry. Points out Dilangalen is forum shopping -go to ShoeMart! While Supreme Court will inhibit itself while Congress deliberating; this is appropriate forum. Dilangalen tries to respond, Speaker insists on responding first. Dilangalen: no, Locsin’s statement was preposterous and out of order! Speaker: Dilangalen has every right to speak. Dilangalen: I advise my classmate to read Constitution; why bar me here? I move he be declared out of order. Speaker: Chair has responded. Dilangelen: What about my motion to declare him out of order?

Session suspended.

5:17 PM

Leonen on ANC suggests there may not be a majority to decide question either way; suspensions allow lobbying on sidelines.

5:23 PM

Rep. Palatino Tweets 189 representatives responded to roll call; 70 representatives absent.

5:33 PM

Carandang reports House leadership trying to prevent a vote on motion to declare Locsin out of order; would set precedent to brawls; Dilangalen brought to House lounge to cool off. (I guess this is why Nograles wanted to duck having a joint session at all, he can’t herd cats properly. Enrile must be chuckling.)

Vote calculations per Twitterer gino510: “24 Senators+270 Reps=290 Members provided that all posts are occupied. Majority is 148.”

5:42 PM

Session resumes.Locsin withdraws remarks to avoid offending Dilangalen. Dilangalen grudgingly reiterates why Congress convened: issue is whether or not we will revoke -revoke only!- Proclamation 1959. We are going to make a “political rrrrrrrreview” of whether to support revocation or allow for sixty days. Points out Supreme Court’s role. Locsin erupts: If this continues, I might change my mind!

Session suspended.

5:46 PM

Session restored. House majority leader asks for Maguindanao Rep. to be recognized for “one sentence.” Recognized for “a very brief remark.” Dilangalen tries to be soothing in turn, peace is made. “I forgive you Teddyboy.” Generally hilarity in Congress ensues.

House Majority Leader moves to recognize Sec. Ermita.

Ermita (in folksy uncle style): President issued Proc. 1946 to supress lawlessness in Maguindanao due to Ampatuan Massacre. Accordingly law enforcement agencies were mobilized to apprehend lawless elements involved in massacre. A day after proclamation, witnesses surfaced identifying Andal Ampatuan Jr. as leader of 100 armed men who undertook carnage; hence he was put under government custody and multiple murder charges eventually filed. Arrest of Ampatuan Jr. would have resulted in expeditious apprehension of other suspects but situation proved to the contrary; the Ampatuan group have since used their strength and political position to deprive President of power to enforce law and maintain public order and safety. Proc. 1959 is a faithful exercise of her sacred and prime duty to preserve and defend Constitution, execute laws and do justice to every man. There exists in Maguindanao an armed force whose effect is to prevent government from enforcing laws. PNP will give briefing.

5:54 PM

Roxas requests hard copies of written presentations. Dilly-dallying over secretarial question. Ermita: hard copies will be provided but we need Congressional staff to help in reproduction… Roxas says OK.

5:56 PM

PNP’s Caro poised to give presentation; Rep. Golez interjects that Ermita’s verbal report varies from hard copy; this is supposed to be report by President, for the record, is verbatim authorized by President? Ermita: The report is authorized by President, it will be shown in substance very similar to original report.

5:58 PM

PNP’s Andres Caro, director of operations: Report on prevailing situation in Maguindanao, gruesome murder; actions taken, implementation of Proc. 1959. Background: even before gruesome murder, gubernatorial race expected to be hotly contested by two clans with known rido: Ampatuans and Mangudadatus. Mangudadatu sent his wife, etc. to file candidacy papers; at 10 AM 11/23/09 eight “behikels” were flagged down in a checkpoint manned by members of Maguindanao PNP and CVO’s; thereafter abduction occurred as convoy brought 2.5 KM away from national highway. After receiving information convoy was abducted, 64th IB PA launched rescue op at 11AM, got there 1 PM met PNP official Dikay who said they had no knowledge; acting on information provided by informants, troops proceeded eastwards; about 1:45 PM troops met two men armed with M-16 rifle and shotgun claiming to be CVOs of Ampatuan, taken into custody for interrogation: at about 2PM troops stumbled upon gory crime scene.

At about 3PM Buluan Mayor Mangudadatu on helicopter spotted massacre. (recounts grisly scene). 22 unburied cadavers, 5 vehicles processed at about 8 PM.

(PowerPoint summary of activities presented: 2 CVO’s taken into custody; aerial reconaissance udertaken; crime scene processed)

Day 2: Additional investigators dispatched; grave sites identified. Sketch of relative position of victims presented. PNP and AFP had to bring in fresh troops as existing troops implicated; augmented investigators and forensic scientists because of enormous casualties. President issued Proc. 1949 declaring state of emergency that evening.

Day 3: All permits to carry firearms outside residences, mission orders cancelled; exhumations in gravesites 1, and 2, including unearthing vehicles; disarming of 4 auxiliary companies of Ampatuans; 18 implicated policemen investigated; 21 CAFGU’s taken into custody.

Day 4: Conducted joint operations (AFP-PNP): check points, choke points, patrols and security to vital installations; security details provided in ARMM capitol, office of governor, Maguindanao capitol; various municipal halls. Very important development: arrest of primary suspect Andal Ampatuan Jr. on 11/26/09, subjected to inquest proceedings in General Santos City and then flown to Manila for detention at NBI. Various PNP officials relieved, transferred to Camp Crame for further investigation.

PNP reiterates Ermita’s line verbatim: Arrest of Ampatuan Jr. would have resulted in expeditious apprehension of other suspects but situation proved to the contrary; the Ampatuan group have since used their strength and political position to deprive President of power to enforce law and maintain public order and safety.

Adds: local government offices closed, ranking officials refused to discharge functions. Civil registrar refused to issue death certificates supposedly on orders of Ampatuan, Sr. Judges went on leave, etc. “duly verified information disclosed Ampatuan group was behind closing of offices and simultaneous absence of judges.” Movements of their troops confirmed: estimated over 2,000 armed combatants from various areas in possession of more than 2,000 heavy firearms; Ampatuan group consolidated, with over 1,000 strategically deployed or prepositioned in Maguindanao (cites areas, troops, arms, including armored vehicles). PNP’s Caro consistently refers to Ampatuans and troops as rebels.

(PNP essentially reading the President’s report verbatim)

6:23 PM

PNP’s Caro Rattles off discovered caches of arms. Discovery of bogus markings on vehicles: all confirm rebellion, first, removal allegiance, and depriving chief executive of her powers and prerogatives and ability to maintain public order and safety. While government conducting ongoing operations; public safety still requires martial law and suspension of writ until time such rebellion is completely quelled.

Since martial law imposed Dec. 4: AFP/PNP operations have arrested 64 suspects including Ampatuan Sr., Zaldy Ampatuan and others. To date, arrests and searches in houses of Ampatuan residences, government offices, etc. and disarming of forces resulted in confiscation of 929 assorted weapons and high-powered firearms and 430,000 rounds of ammunition and 4 armored combat vehicles and others painted with official markings. The fact remains Ampatuan clan and followers remains a formidable force that must be confronted head-on by AFP-PNP with full force of law and backing of Congress.

PNP presentation ends.

6:28 PM

House majority leader moves to begin interpollations. Rep. Plaza reiterates request for hard copy of report. Rep. Antonino: for clarity, noticed in presentation, certain acronyms used; can PNP say what CVO for example, mean? Or RAG? Nograles: That shall be answered at the proper time.

Sen. Zubiri moves Sen. Aquino be recognized to begin interpollations. Sen. Roxas asks: Report rendered by PNP official constitutes President’s report in entirety? Enrile: Understanding of Chair is President submitted report to Congress and materials being presented by resource persons are in support of her report. These are evidential matters being presented to establish facts in report of President. Roxas: This is mechanism by means President is rendering report, so utterances of police official is in effect President’s report in writing? Is presentation what was contemplated in Constitution? For chambers to determine what to do relative to martial law, if this is report, then discussions must be circumscribed by contents of report, no new facts can be brought into discussion? Then our discussions will focus only on what Gen. Caro has rendered before chamber.

Enrile: Sec. 18 of Art. VII says if President suspends writ or declares martial rule, the President is required, mandatorily to submit report of that fact to Congress. Now, the Constitution did not define contents; I assume from experience, report requires justification for martial law in Maguindanao; President has to tell members of Congress the factual basis upon which she acted. This is new innovation under present Constitution… We received a copy of this report, more or less general description of facts being presented to this chamber, so the purpose of resource persons is to buttress the report so we will get the, uh, facts, and determine whether indeed the event that justifies martial law, which is, is there rebellion, which can only be justified by narration by events on the ground, whether there was, indeed, a public rising for an objective defined in statute books as rebellion.

Roxas: So precisely, Executive Branch being given opportunity to support whatever was contained in written report, I wish to put on record that the Executive Branch has set forth the elaboration by Gen. Caro.

Enrile: I would liken it to a pleading in a court to detail the facts to spell out the conclusion that indeed there was a rebellion.

Roxas: Caro a stipulation of facts?

Enrile: No, in the nature of evidence; I don’t know if it was proper to have placed him under oath, in fact he was testifying before Congress.

Roxas: What officials doing is to render support for President’s report.

Enrile: Yes.

6:40 PM

Rep. Rufus Rodriguez: Parliamentary inquiry on terms of reference. We have Proc. 1959; then 20 pp. report of President signed by Sec. Ermita, then Ermita’s report different from 20 pp. report; then Caro’s report, then Ermita’s letter deleting paragraph from 20 pp. report; so what is basis of interpolation? Compares Proc. 1959 to Marcos’ Proc. 1081 which detailed basis for proclamation. Government today only alleges possibility of rebellion. What are we to consider?

Nograles: You can interpolate later and ask those questions based on documents available to you and documents being photocopied for distribution. Majority Leader of Senate has already recognized Aquino. Please allow first Senator who has taken the floor to be recognized.

(Representatives keep firing off parliamentary inquiries anyway)

6:45 PM

Aquino: to Puno, to lay predicate for 1st question. Papers quoted Puno as not having agreed to martial law?

Puno: Until situation developed where police officers went absent on leave and joined rebel forces and significant portion of civilian armed volunteers joined rebel group, up to that point I did not believe martial law required. After receiving reports separate rebel armed group was formed, we concurred with martial law.

Aquino: Brawner made statement no need for martial law in Maguindanao or elsewhere because of “level of normalcy.” Gonzalez on Dec. 1 made similar statement; also Puno’s opinion in undated national security briefing martial law required. To Ermita: when did change in stand take place?

Ermita: At the time briefing was given on Dec. 4, a report was presented before National Security Group of normalcy in the ground in the sense AFP had conducted operations on ground, just as PNP had been sent to area to undertake needed investigation; which means there was no actual violence on Dec. 4, hence reported by AFP and corroborated by PNP there was normalcy at that particular moment; however as pursuit went on, reports filtered and reported to Office of President and continuing conferences pointed to need for additional measures; as born out by briefing officer, situation had to be properly controlled if first to account for perpetrators, second to allow investigators to do work; and at same time gather evidence on the ground; as shown by martial law declaration, afterwards proved there was destabilization in the area, witnesses afraid to come out, judges unwilling to issue warrants, etc. This is why after Dec. 4 it continued to deteriorate.

Aquino: For clarity: no violent clashes from state of emergency; have there been violent clashes?

Ermita: Dec. 1, none; by Dec. 4, reported that some, including those not disarmed, were preparing.

Aquino: So answer is no violent clashes since state of emergency?

Ermita: No clashes, but they were just regrouping.

Aquino: May we know if any high-powered firearms with AFP-PNP markings that fell into hands of armed have been identified?

Ermita: AFP to answer question.

AFP: There are three possible bases for the firearms in the possession of Ampatuan rebel armed groups: 1. acquired from legal sources, meaning commercial companies; 2. acquired from illegal sources, meaning enterprising civilians or possibly retired personnel; 3. acquired from the past conflicts in Mindanao, remnants or residuals of conflict (MILF MNLF).

Aquino: Have they been identified as to who should be in custody of the same, would a governor however powerful have means to acquire mortars, etc. that require DND certificates; they have serial numbers, are we to get it AFP does not know provenance of weapons and how Ampatuans got hold of them?

AFP: We have accounted for weapons, 347, in special companies; the others, we are identifying and cannot identify sources because of tampered serial numbers.

Aquino: Crime laboratory can’t help?

AFP: It can.

Aquino: What powers can president wield not already covered by her calling out armed forces?

Devanadera: The only thing the President can do is to call on armed forces and police to come to a particular area, in this situation, Maguindanao…

Aquino: To suppress lawless violence?

Devanadera: Yes.

Aquino: What else, under martial law?

Devanadera: Martial law and suspension of writ, with twin exercise of extraordinary powers are addressed to quell rebellion; in calling out power, rebellion need not be present; just to address lawlessness. However in other two powers, rebellion required.

Aquino: There are no additional powers granted to AFP, PNP under martial law? Unlike in 1972?

Devanadera: Yes, Constitution, civilian government still function.

Aquino: So why is calling out not sufficient?

Devanadera: One is for lawlessness, the other, rebellion.

Aquino: Who exactly committing rebellion?

Devanadera: Ampatuan group, plus their armed forces or people heavily armed.

Aquino: These same forces were previously agencies of the state, organized under auspices of the state?

Devanadera: Yes. To defend republic and the people, now transformed into private army, following rule of their leaders now, not the republic.

Aquino: For rebellion, public uprising, armed, for purpose of removing control required?

Devanadera: Well, in that, there need not be violent clashes; we have seen in reports as submitted there was massing of these people who are heavily armed.

Aquino: Nobody has presented any evidence they are withdrawing allegiance or seceding. Caro mentioned even building in physical control of state; courts issued warrants of arrest; ARMM proposed budget to us yesterday; did any armed groups make overt statement of rebellion?

Devanadera: Courts weren’t functioning, even today. Processes availed of came from other provinces; with respect to removal of allegiance, etc. includes reports from AFP. PNP that armed men were not following orders from duly-constituted government but merely from Ampatuans.

Aquino: Is there a separatist group that is aligned with Amaptuans as mentioned by Caro, is it named and does it have leaders, unknown to general public?

Devanadera: Let us reiterated filing by Executive Secretary on Dec. 9 to correct report, that deletes that portion for clarity (reads Ermita’s communication). This substitution became necessary because…

Aquino: If there is a deletion there is no separatist group? A new rebel group?

Versoza: There is no uh, no other group allied with Ampatuans.

Aquino: Were 62 charged with rebellion rebels before or after massacre?

Ermita: After the massacre. (Proceeds to eat up Aquino’s time by reading Dec. 9 letter)

Aquino: When Puno was initially delegated to attend to disciplining local government units, were LGU officials who refused to exercise their functions, did you appoint successor, why or why not?

Puno: Supervision was what was delegated bound by organic laws that have been passed, and Local Government Code. They have autonomy in ARMM, and we only get involved in administrative cases only upon direction of President in capacity as executive; on our own we do not have jurisdiction; with respect to organic law, our power circumscribed by organic act which provides supervision in finances from national government, grants-in-aid; conservation of rights of Christians and Lumads, general enforcement. We do not have authority to remove officers, principles of succession in place.

Aquino: You are powerless when everyone from governor down to board member refuses?

Puno: Authority to suspend regional governor and only regional governor for limited period. It’s governor who appoints subordinate officials in turn.

Aquino: But if governor has already been suspended, acting governor could have reorganized and not have failure of governance.

Puno: Acting governor takes oath only tomorrow.

Aquino: So what buttresses argument local government has failed given there are those willing to take over positions, given Caro says government in custody of official buildings?

Puno: Report we received resulted from closure of these municipal halls by mayors concerned when police instructed to safeguard financial records. Necessitated control by PNP.

7:16 PM

Aquino time up. House Majority leader: Dilangalen recognized. But first brief suspension to allow Gen. Ibrado to join panel. ON TV Kit Tatad argues Ermita signing report for President makes report invalid; the obligation is specific and personal.

7:29 PM

Session resumes, then suspended again.

7:32 PM

Dilangalen recounts meeting Zaldy Ampatuan at airport, day after massacre. Invited him to see his father. They went, met Dureza, who was conferring with Ampatuan Sr., suggested Ampatuan Jr. be presented to him. Ampatuan Jr. committed to present himself for investigation -belies his having “surrendered.” Thence, inquest, NBI jail, cases of multiple murder filed. To Devanadera: what is development of case, besides Ampatuan Jr. and included as accused?

Devanadera: Status of case: vs. Unsay Ampatuan, information filed in court; Andal Sr., other Ampatuans, others: under regular preliminary investigation. Canapia, Dilon, going through different process, inquest, case filed in court. We can see for Ampatuan Sr. under regular preliminary investigation.

Dilangalen: All other respondents other than Ampatuan Jr. under preliminary investigation, filing Dec. 18? Cases of rebellion filed?

Devanadera: Yes and yes.

Dilangalen: Did PNP or military attempt to arrest or put under house arrest, the Ampatuans before martial law?

Devanadera: I am not in position to answer. (redirected to PNP, Puno)

PNP: No attempt to arrest the other Ampatuans before martial law.

Dilangalen: To Gen. Ibrado, Maj. Cabangban told CNN they had restricted movements of Ampatuans in order not to contaminate area, so anytime warrant issued, they could be arrested. This was before Dec. 4. Did this have full support, acquiescence of Chief of Staff, possible case of restriction of liberty?

AFP: Troops instructed to put up checkpoints, control points around residences but not for the purpose of restricting their movements.

Dilangalen: Reads report of raids on Ampatuan properties; Cabangbang says government tried to build case, but took long, so government gave us free hand, so we needed declaration of martial law.

AFP: The raid conducted on warehouse was done after martial law declared.

Dilangalen: Confirmation of statement of operations officer of Eastern Command, Cabangbang, that movements restricted to prevent contamination, DOJ having difficulty making case?

Devanadera: The reason no information has been filed against Ampatuan Sr. is because he has to undergo regular preliminary investigation -subpoeanas, etc. Only after prosecutors find indictment warranted is information filed in court, then warrant issued.

Dilangalen: Ampatuan Jr. presented himself to authorities; inquest undertaken; inquest requires arrest; but he was not arrested, but still seized and charges filed Branch 15 Cotobato City.

Devanadera: There is order from SC approving transfer of venue to Quezon City.

Dilangalen: No sitting judge there because judge was murdered?

Devanadera: I don’t know; all I know no judges at that time.

Dilangalen: For your information, Branch 15 vacant since death of judge, not filled by Office of the President; branch 13, 14 it is not true there are no judges; they are on travel with approval of Supreme Court. Now in whereas clauses of Proc. 1959, re: condition of peace of order deteriorated to extent public safety endangered, I hope lady Secretary informed definitely no judges there because in Branch 15 no one appointed by President for vacancy; the other judges are on pilgrimage in Saudi Arabia with approval of Supreme Court. And Supreme Court spokesman belied your assertion justice system not functioning, SC had designated judge who issued commitment order.

Devanadera: Special designation.

Dilangalen: Heavily armed groups have established positions, depriving executive of powers, etc.: let me recall provision of Constitution… Removing imminent danger thereof in 1935 Constitution. Comment?

Devanadera: Yes, present Constitution different from old; martial law allowed only with invasion or rebellion, and restrictions imposed.

Dilangalen: So clear only actual invasion or rebellion when public safety requires it is martial law or suspension of writ allowed. A few days ago Justice Sec. asserted martial law declared because of looming rebellion in Maguindanao. Referring to heavily armed groups establishing positions etc. Am I correct? Looming rebellion?

Devanadera: Let me clarify-

Dilangalen: You are referring to 1935 and 1973 Constitution not 1987 Constitution- looming rebellion not grounds…

Devanadera: We studied 1935 Charter in Ateneo. Let me explain context: attributed to me in answering a question on what happened after massacre and what came to my knowledge, when I saw reports, I thought I saw a looming rebellion, but after further study it presented to me there was actual rebellion. I have made clarifications.

Reiterates, based on evaluation, chief executive had been, in effect, deprived of ability to enforce laws… There were already reports of something that was uh, shaping, my first reaction was, is there an actual rebellion or looming rebellion, it was a question I posed.

Dilangalen: But your account suggests there was looming rebellion at time of issuance of Proc. 1959… Anway, so local government offices were closed and officials refused to discharge functions. Suppose I’ll present an order from military commander, Ferrer, directing closure of capitol and all offices, will you agree with me the closure of the offices was not because of Ampatuans but because ordered by martial law administrator? Because I present order where Col. Ferrer ordered closure of capitol; I even called DILG and inquired, before martial law, are Ampatuans under arrest, because no one could visit? Cabangban said they have to seal the area to prevent contamination so they could also easily arrest.

Devanadera: I am not in a position to comment. (redirected to AFP)

AFP Ibrado: We did not issue any order to close government offices in Maguindanao.

Dilangalen: Suppose I can present a letter? I got text message video will be sent of military physically closing offices. Now (to Devanadera), local civil registrar refused to accept registration of death certificates purportedly upon order of Ampatuan Sr. What is relationship of this to rebellion? When government official prevents functions, it’s not rebellion, it’s grave coercion; there’s grave coercion everywhere. So martial law everywhere?

Devanadera: We cannot take one uh, one uh, situation in isolation but take all reports all together. And uh, when it comes to rebellion, we have that situation based on the reports that uh, the armed uh, groups, were already in effect, depriving chief executive of its powers to enforce laws, they were already having their own organization, own government, so not anything looming, something actual.

Dilangalen: Article 144 etc. insists there must be public uprising for the purpose of removing allegiance from national government, etc. Since when did Ampatuans act to secede?

Devanadera: Armed groups formerly organized to defend republic this time was transformed into private army getting orders only from Ampatuan clan, based on reports.

Dilangalen: CVOs, Cafgus, PNP, AFP? Already loyal to Ampatuans and not Republic of the Philippines?

Devanadera: That’s in the report.

Dilangalen: But these were under supervision of the Philippine Army. Cannot be established unless under supervision of military officer. Why break in chain of command? How come PNP left and changed loyalty? During budget hearing I raised point to Puno and Versoza how come provincial director only a major? Should be full Colonel, so how come. Everything became uncontrolled because AFP and PNP not doing its functions now blaming Ampatuan or fault of AFP PNP?

(silence)

8:05 PM

Dilangalen concludes. Senator Joker Arroyo next.

Arroyo: Problem with martial law as we knew it in 1972 is that it was abused. Now martial law in 1972 was under 1935 Constitution and Proc. 1081 vesting in President sole authority to do what he could. That was the problem and we suffered 14 years. We have Proc. 1959 based on Constitution of 1987. All three branches mandated by this Constitution in implementation of martial law: President imposes, Congress reviews it, Supreme Court can decide factual circumstances. To Sec. of Justice: Supposing Congress does not revoke martial law, it continues; let us suppose there are abuses, will the Executive recognize the continuing power of Congress to review the acts of the President? In case President or agents abuses, Congress can again convene and check actuations of President?

Devanadera: There are grounds martial law can be declared; President submits itself to Congress for verification and validation; as for other actuations of Congress we submit it to wisdom of Congress.

Arroyo: Does President accept power of Congress for continuing review? If we do not revoke this, what check is there on the President, without continuing review, otherwise there can be no check at all. If we let go of you now, when can we revoke it then? A week from now, if abuses, how can we correct the situation?

Devanadera: Since there are no precedents, I will suppose this will partake of some academic discussion; I would like into powers of judiciary.

Arroyo: I cannot agree judiciary should interfere with political departments of government. Now there is power to review or revoke, left to Congress. Problem is if today we say go ahead, simple question: a week from now can we not convene to review again?

Devanadera: I would venture into proposition that Congress has power to look into basis if martial law declaration…

Arroyo: At any time? Not saying if we let you go now, you can do what you want.

Devanadera: I don’t see any impediment to Congress inviting again. For anything we can have a committee investigation…

Arroyo: We don’t want the judiciary to decide a quarrel between legislature and executive, we cannot make Supreme Court arbiter of our powers. I want clear-cut answer Executive recognizes if abuses committed, Congress power to convene again recognized. It’s as if this is a one-shot deal, we meet, either revoke or allow; this cannot be; there’s a continuing power to review.

Devanadera: Yes.

Arroyo: If that’s position we can look more kindly on this martial law.

Devanadera: I also believe judiciary in case of any abuses, people not deprived.

Arroyo: No, no, this is a provision doing away with all other provisions; the point is you must assure us Executive will also do right thing and we cannot rely simply on the promise you will do right thing; we want recognition of continuing power of Congress to review or revoke.

Devanadera: We acknowledge that proposition.

Arroyo: Has there been incident since imposition of martial law or what was it called, state of emergency, any abuses?

Devanadera: I don’t know of any. (redirected to Ermita)

Ermita: No complaint received from any sector whatsoever.

Arroyo: Power is issuance of warrants of arrest and warrants of seizure; before martial law you couldn’t seize; now you can arrest and seize provided within three days you have to file case in court. Now, uh, other than that there is no other extra power given to President?

Devanadera: Yes.

Arroyo: This 1959 identifies MILF as excluded from coverage; two encampments in Maguindanao are we supposed to understand those are untouchable because of agreement government has with peace efforts?

Ermita: This is in recognition of the fact that this administration has primacy of peace process in its mind, insomuch as two panels, GRP-MILF have agreement suspending military actions. Was felt observance of peace process necessary so as not to impede resumption of peace talks.

Arroyo: Government has been fighting MILF; despite continuing fight, this and past administrations did not see fit to impose martial law. Comes the massacre, one incident, martial law is imposed. Enlighten us why this kind of disparity, war with MILF no martial law, then this gruesome and unpardonable massacre but martial law imposed immediately?

Ermita: Administration feels we should not jeopardize objectives of peace process.

Arroyo: Let’s say Congress votes not to revoke. We have no assurance President will not, what do you call this, lift martial law because crisis is over. What then are assurances of Executive martial law will not be unnecessarily prolonged?

Ermita: In same manner basis was made taking note of report of AFP-PNP same way President will I suppose decide whether to lift. But lifting martial law will not necessarily mean state of emergency will be lifted.

Arroyo: Despite limited powers -warrantless arrest, seizures- temptation is strong military will not lift, we need assurances.

Ermita: By way of example, should authorities on ground, PNP AFP, DILG, observe control has been stabilized, therefore no more need, then I suppose appropriate decision will be made.

Arroyo: We hope it will be made, martial law is an abnormal situation, a government that operates by virtue of martial law is not a normal situation. Maguindanao is fraction of entire Philippines: but impact and image of entire Philippines affected. Effect is like Pakistan, places in Africa, etc. So, uh, well, along the way, if you could give some inputs, you have to persuade us the President means business and that the earliest time it will be lifted will be beneficial to the country.

8:28 PM

Arroyo (mercifully) ends. Short suspension to allow resource persons to have dinner, resumption after 15 minutes. (In Congressional time, this means 1 1/2 hours!)

9:21 PM

Session resumes. Rep. Edcel Lagman begins with review of circumstances that justify martial law. Emphasizes Constitutional Commission’s deleting “imminent danger thereof” as grounds. Asserts Congress lacks continuing authority to review implementation of martial law. Can only review, once, the factual basis for imposing it, and only with an eye to revoking if Executive unable to prove case of rebellion or invasion and public safety requiring martial law. Ask Devanadera if she still accepts Joker Arroyo’s proposition.

Devanadera (backpedaling from corner Arroyo pushed her into earlier) I agree with you and believe judiciary is best forum; if you want to be very literal, Constitution only specifies Congress’ power to revoke or to extend.

Lagman: Not just literal, but legal and moral. To all resource persons: did authorities recommend to President to “froclaim” martial law and suspend writ of habeas “koorpoos” because of actual rebellion in Maguindanao?

Ermita: Recommended by body to President after briefing by AFP and PNP and DILG Secretary.

Lagman: Uh, Honorable Executive Secretary, was this collective decision recommending to President, uh, based on, uh, on an actual finding by those making recommendation that uh, actual rebellion is occurring in Maguindanao?

Ermita: Not on whether actual fighting going on; the actual determination of elements of rebellion came from reports that armed groups indeed prevented authorities from exercising duties, reports of PNP, DILG and NBI that there was difficulty in obtaining warrants, because no judges willing, hence necessary to declare martial law.

Lagman: A perusal of text of Proc. 1959 would show absence of a clear, categorical statement a rebellion was actually occurring in Mindanao. Would that be an accurate reading of the text?

Ermita: You may be correct there was no actual rebellion going on but all indications on the ground indicated inability of authorities to undertake their duties…

Lagman: We are happy to note there was an admission there was no actual rebellion in Maguindanao. But the presence of armed groups would be indicative of lawless violence which is not synonymous with rebellion. Caro stated this was worst election-related violence (referring to massacre) an act of gross lawlessness but definitely not rebellion. May I ask Secretary of Justice what facts convinced her that instead of a looming rebellion, there is actual rebellion in Maguindanao?

Devanadera: Upon arrest of Ampatuan Jr., my first reaction to reports was, it may be a looming rebellion, but when I shifted to other reports, it was clear it was not something looming but it was actual rebellion, we were able to conclude because we got information heavily armed groups took very strategic positions within Maguindanao such that they were in effect preventing the implementation of laws and giving threat to public safety. (Quotes from President’s Report) So those were the events, that was the situation presented to us.

Lagman: When we look at the elements of rebellion, the elements are, public uprising, taking arms against the government, in Maguindanao, prior to the declaration of martial law. Was there a public uprising?

Devanadera: The fact there was a massing of many people who were heavily armed and taking strategic positions to prevent enforcement of the laws, to our minds this has satisfied first element of rebellion.

Lagman: That would be indicative of lawlessness, as Fr. Bernas says. The power to prevent violence was sufficiently covered by power of President to call out armed forces. Were there overt acts?

Devanadera: There were overt acts; you mentioned Bernas, he wrote in his column the Revised Penal Code is not required as sole grounds…

Lagman: You assert one basis was civil government ceased functioning, is that grounds for establishing rebellion?

Devanadera: All the events have to be considered together to appreciate that actual rebellion was going on…

Lagman: To my mind non-functioning of civil authorities would be indicative of sedition, not rebellion (cites Art. 192 of Penal Code). But sedition not ground for declaring martial law.

Devanadera: Sedition definitely, is different from rebellion…

Lagman: My point is preventing civil authorities from exercising their function is an element of sedition. Prior to Dec. 4 when martial law was declared, from the Maguindanao situationer, there is no report in that situationer of actual armed, public uprising against the government. Review the report given us to by PNP Caro, there is no mention that prior to Dec. 4 there was public uprising, an armed uprising, against the government, so that would negate factual basis of declaration of martial law and suspension of writ.

Devanadera: (Falters)

Lagman jumps in and ends his questions.

9:43 PM

Zubiri moves to recognize Jinggoy Estrada.

Estrada: (to Ermita) Proc. 1949 declared state of emergency; then ordered transfer of general supervision of ARMM from OP to DILG. Thereafter DILG issued department order authorizing task force to mobilize DILG officials to ensure functions and duties of ARMM Governor are performed in accordance with law. Were these issuances not enough to control situation in Maguindanao?

Ermita: It was thought at the time state of emergency would suffice, magnitude of the problem had not been captured by the Executive based on reports. For that matter, issuance of Administrative Order delegated authority of supervision to the Sec. of DILG in order that functions of local government would not be hampered. At that point not yet very clear situation had deteriorated “so bad” it would require martial law.

Estrada: Some personalities were pinpointed as inciting the rebellion. Who were they?

Ermita: At that particular moment only ones identified within 48 from the “happening” on Nov. 23 was the mayor (Ampatuan Jr.).

Estrada: Martial law still needed since government already functioning?

Ermita: Could not be said at that point -with arrest of Ampatuan Jr.- as situation developed, after witnesses came out after arrest of Ampatuan Jr. later only after they were convinced they’d be assured protection; only then did investigators extract information about other personalities, including well, the rest of the Ampatuans in office.

Estrada, asks Ermita enumerate municipalities in Maguindanao;how many functioning?

Ermita: 16/22 under control of Ampatuans.

Estrada: (to Devanadera) You said judiciary is not functioning? What’s basis?

Devanadera: What I said is, courts which has jurisdiction over Maguindanao not functioning in the manner we know how courts function; for example, if prosecutors need to file an information, the DOJ need not communicate with the Supreme Court for the Supreme Court to designate a judge; under normal situation you go to court, it will be raffled and judge attend to case; but not in Maguindanao.

Estrada: So you went out of your way to inform Supreme Court of problem in Maguindanao, what was response of Supreme Court?

Devanadera: They had to look for judge from another province just to attend to our filings. In same manner law enforcement agencies needed search warrants, I had to communicate with Supreme Court so a judge would issue search warrants; it took three days for Supreme Court to find a judge -from Kidapawan City. Places needed searching, law enforcement lost opportunities for search. I don’t think that’s normal courts.

Estrada: Only one judge functioning in Maguindanao?

Devanadera: I can’t say functioning; we have to inform Supreme Court for him to go to Cotabato City from Sultan Kudarat.

Estrada: Because he fears for his life?

Devanadera: That’s what we were told. (asked again about rebellion) All the acts in Maguindanao can be considered as actual rebellion…

Estrada: Did NBI report to you any lawlessness in Maguindanao?

Devanadera: NBI, especially GenSan given specific tasks, there seemed to be some kind of informal division of tasking on the field, that must be reason no such report from NBI to me.

Estrada: Who is highest commander in Maguindanao now?

AFP (Ibrado): Gen. Ferrer, also commander of Eastern Mindanao Command.

Estrada: Basis for his selection?

AFP: Highest-ranking officer… Commander ….

(Estrada and Ibrado wrangle over whether AFP considered an actual rebellion occurring, Ibrado replies they view as serious the presence of armed groups; Estrada switches to discovery of buried ballot boxes; PNP clarifies it was sack of voters’ IDs; questioning shifts to total arms confiscated)

Estrada: Why do Ampatuans have AFP “ammunitions”?

AFP: I can only account for firearms issued to Cafgus…

Estrada: Any intelligence reports of Ampatuans possessing AFP ammunition?

AFP: Well, there are so many possible reports…

Estrada: If there hadn’t been massacre, martial law, you wouldn’t have discovered arms, ammo, even alleged police cars, you mean to say you never received reports they had these things?

AFP: About hidden guns, ammo, we didn’t know they had them, but we know there are CVOs and other personalities armed and with them.

Estrada: (asks do you admit your intelligence is weak? AFP says no… Estrada shift questions to PNP): would you say you’ve been remiss in your duties regarding peace and order?

PNP: We are maintaining our functions in coordination with local chief executives who supervise local police forces, we work in coordination also with AFP and we uh, are always in coordination with local government officials.

Estrada: What serious degree of lawlessness prompted Pres. Arroyo to impose martial law and justify its continuation?

PNP: Movement of armed troops… We observed movements of armed men upon arrest of Ampatuan Jr. We saw also direction of the local government officials, especially Gov. of Maguindanao to go to their area, with CVOs being retained by members of Ampatuan family. Immediately after massacre, we also received reports of movements of armed men, and when we pursued perpetrators of crime, we were informed some had joined CVOs.

Estrada: Considering CVO’s under your control, would you say ineffective because PNP unable to control?

PNP: CVO’s under local government units. (describes CVO system)

Estrada: CVO’s armed? Who provides arms?

PNP: Yes, this is subject of our investigation… Most of those involved in massacre were in the CVOs.

Estrada: Any report arms issued to CVOs landed with Ampatuan family?

PNP: CVOs armed by chief executives, especially Ampatuan family.

10:13 PM

Speaker says next person to interpolate (last for the night) is Satur Ocampo.

Ocampo: What we are discussing is extremely serious. There is a tendency to downplay this situation. This was very serious, suspension of writ and martial law separate acts are unprecedented. Were emergency, suspension of write, martial law really called for by the situation? Report says all law enforcement agencies had been mobilized for investigation and apprehension of those involved in massacre. Things started with lawlessness -the massacre- but element of rebellion entered the picture after the arrest of Ampatuan Jr. when government expected swift apprehension of other suspects; government says contrary happened. Since then, government asserts chief executive deprived of authority… and separatist group joined forces with Ampatuans (per report, except separatist reference has been deleted).

And yet Caro made reference to the separatist word; and yet, Exec. Sec. in his amending letter, said this should be interpreted with reference to Ampatuans and no other group; while Justice Secretary says it was Ampatuan forces acting to remove allegiance. But first version of report clearly stated a separatist group -that can only be MILF. Yet Proc. 1959 exempted MILF from coverage. The one putting proclamation together was confused. As Lagman said, proclamation does not categorically state rebellion was ongoing. So it was not rebellion, but lawlessness taking place in Maguindanao.

From Dec. 1-4 the “rebels” were massing… but were they taking up arms? No report of this anywhere. Any actual engagement? You all said no, but that there was effect of rebellion as allegiance taken away from the government. I’ve been accused of rebellion, twice, and acquitted twice. Rebellion requires an overt act. When I was a prisoner under martial law -the Executive Secretary was there, you first to visit me when I was in isolation- a three year military commission could not prove rebellion against me, because no proof I took up arms. Until I escaped. When I was accused again, as a member of this Congress, Norberto Gonzales said it took nine months to prepare case against us, 139 documents, but July 1, 2007 SC said no evidence of rebellion. In my view, the rebellion in Maguindanao is ongoing -on the part of the MILF. The Ampatuans are not engaged in rebellion -their crime is the massacre- yet overnight the CVOs, Cafgus have transformed into a rebel army?

These occurences -state of emergency, suspension of writ, martia law- an admission government is useless, and requires one executive action over the other?

Ermita: Precisely, Proc. 1949 declared state of emergency, because at that point in time, determined it was adequate just to call out armed forces to suppress lawless violence; but as situation developed, as days went on and situation evaluated, they discovered this was insufficient. Hence collegial recommendation to President to resolve situation by means of martial law. Now the martial law of the past is different from martial law today, suspension of writ not automatic and not open-ended. If martial law had not been imposed, the arrest of those investigators knew had to be taken in couldn’t have occurred because they were surrounded by their armed supporters. disarming wouldn’t have been easy without martial law.

Ocampo: Proc. 1946 hasn’t been lifted, correct? So all three in effect?

Ermita: Correct.

Ocampo: You intend to use up entire 60 day time frame?

Ermita: The 60 days is the limit but I would like PNP and AFP to give us update on how suspension of writ and martial law have succeeded…

PNP: We’ve seized many firearms, vehicles, made searches at various places, private property and government property (municipal hall properties).

Ocampo: But what’s happened to massed-up forces? Standoff?

PNP: We’re conducting patrols. Sightings say they’ve moved towards the East, we encountered a group at Datu Unsay, there was shootout, also in a recon operation, they were fired upon when recovering firearms, we have also arrested persons suspected of having allowed the hiding of several armored trucks and the fake police vehicles… Also arrested persons in various municipalities and filed rebellion charges versus 24 persons including Ampatuan Sr. and Zaldy Ampatuan today. We will be analyzing… We are continuing security operations.

Ocampo: You’ve filed rebellion charges, this is the subject of preliminary investigation?

Devanadera: Inquest for rebellion.

Ocampo: What’s your success rate on rebellion charges?

Devanadera: I would not want to preempt uh, the uh, the uh efforts of the prosecution…

Ocampo: I’d like to stress why I raised the fact this is unprecedented and no proof of actual rebellion as defined in Revised Penal Code which requires actual taking up of arms. If this Congress fails to revoke martial law on these questionable bases, there is likelihood President will request extension; likelihood it will be imposed in other places, dire consequences unimaginable. Also looming suspicion by charging Ampatuans with rebellion, it’s designed to weaken case -absence of proof of rebellion will lead to Ampatuans let loose; then where would we be?

10:39 PM

Sen. Roxas: administrative matter. More than 5 hours since s0-called report rendered by PNP. Many assurance report is forthcoming, when exactly will be given this report in hard copy?

Zubiri: With House Secretariat, tasked with reproduction, let’s ask Speaker to ask Secretariat.

Enrile: Let’s ask indulgence of Senate, copying is probably still going on…

Roxas: There must be 1, 10, 50 copies already? We want to establish clearly for the record, because that in effect is narration of evidence Executive has for declaration, so maybe some copies can be secured?

Speaker: Secretariat has informed me they’ve prepared 300 sets for all of us, hard copies available tomorrow morning. If copies already available, please ensure senators get copies first.

Sen. Pimentel: As a privileged motion, the situation on ground very critical, this is why Constitution hastens checks and balances in this case, but also we have to hear people justify or criticize, so we have to spend some time… I would like to make a motion that Exec. Sec. be made to report daily on the happenings in the area of martial law.

Enrile: To whom will reports be made?

Pimentel: To Congress. To us. Time is of the essence, this is a part of our checks and balance duty, and I think Secretary is willing to do it.

Enrile: Exec. Sec. will respond if he is willing, this will require daily transmission of events in the area.

Ermite: We will abide by request and come up with latest accomplishments tom.

Pimentel: Press in Maguindanao asking they be allowed to cover activities of armed forces there. Difficult, but it can be done, US embedded media in Iraq. I also wish to make that as a proposal, accredited members of the press may accompany military or police units operating in area of martial law.

Enrile: I think this is a matter that involves a command problem on the part of the military, I am not prepared to concede we should tell commander on the ground what to do.

Pimentel: We are not demanding that but asking him if possible.

Enrile: We will ask Exec. Sec. since he is alter ego of commander in chief if this is possible so we can act on it maybe tomorrow.

Pimentel: Resource speakers not placed under oath, even if we do not ask them to take specific oath, but remind them they’re bound by oath of service.

Enrile: I think they are responsible public officials and know they will fulfill their duties as faithful public servants.

Pimentel: I am wearing black because I mourn massacre victims and I also mourn death of democracy in Maguindanao.

10:48 PM

Motions made, approved, by both chambers, to suspend session until 2 PM, December 10.

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