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.
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.
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.”
According to ANC Alerts (Twitter) “Ricky Carandang [reports] Ermita, Gonzales, Devanadera, Ibrado already at Batasan Pambansa for joint session of Congress. Still no quorum.”
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.
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?)
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?
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?
Pangilinan: Ampatuan security personnel assigned to them were recalled. Was there resistance?
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?
Pangilinan: Nov. 26, you took over physical control of capitol, municipal halls; any firing?
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?
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.
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.
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.
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?
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?
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?
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.
Session suspended to allow Congress to answer its collective call of nature.
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.
(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.
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.
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?
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.
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?
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.)
(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.)
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?
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.
(coverage interrupted by report of military trucks bringing evidence to General Santos City ambushed in Ampatuan town, Maguindanao)
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)
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.
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.
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.
Session suspended until Monday, 4 PM.