Murders, she unwrote

The way martial law was understood in the Philippines before the 1987 Constitution (at least by those predisposed to advance its use whenever they deemed it necessary) is that by its proclamation, the whole country, or only a certain part thereof as delineated in the proclamation, is supposed to be placed under the dictatorship of the one invested with martial law authority. In short, owing to the emergency, the powers of government, i.e., the legislative, the executive and the judicial powers, were considered to be concentrated into the hand of the martial law administrator.

Thus, following his declaration of martial law in the Philippines in 1972, Marcos padlocked congress and began to legislate by way of presidential decrees, proceeded to try civilians like Ninoy Aquino before military commissions (Ninoy was found guilty and sentenced to face a firing squad), and flaunted the “political question” doctrine before the Supreme while threatening the poor justices with the establishment of a revolutionary government should they attempt to rule against him. More daringly, Marcos became unabashed in his claim that by virtue of his martial law powers he could propose amendments to the Constitution by presidential decree in a constituent capacity.

In other words, by Marcos’ conception of martial law, the only limit to his dictatorial powers flowing from it is the people’s exercise of People Power.

(It is significant to underscore that under the old constitution, President Marcos had the constitutional authority to suspend the privilege of habeas corpus upon the same grounds he could declare martial law just as under the present constitution President Arroyo can place under martial law the entire country or just any part thereof on exactly the same constitutional conditions.)

Presumably well aware of the constitutional requirements, Marcos had first dipped his toe in the water by suspending the privilege of the writ of habeas corpus, which the seemingly unsuspecting Supreme Court has ruled to have been lawfully exercised, before he arrogated dictatorial powers pursuant to martial law.

The Filipino people ran out of their known long patience and ultimately ousted Marcos. And the lesson still fresh, the people, through their constitutional delegates, decided to pare down the emergency powers of the president by deconcentrating the exercise of such powers and prescribing more stringent conditions and limitations in the 1987 Constitution, foremost of which are the following:

1) Limiting the duration of martial law to 60 days which may be declared only when there is an “actual” rebellion or invasion (a “looming” rebellion or invasion, or imminent danger thereof, is not now a sufficient ground for declaring martial law; neither is a “rebellion in the offing”);

2) Empowering congress to revoke the proclamation of martial law by a joint vote of both houses of congress;

3) Allowing the Supreme Court to determine “the sufficiency of the factual basis of the proclamation” or its extension thereby obviating a “political question” threshold challenge while mandating the Court to promulgate its decision within 30 days from filing of a petition assailing the proclamation.

Moreover, the present Constitution now expressly provides that a “state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function,” and that neither does it “automatically suspend the privilege of the writ” (of habeas corpus).

Are the new safeguards instituted in the 1987 Constitution enough to prevent a reoccurrence of a Marcos-type martial law?

Laws, by now we know, are only as good as the men implementing or applying them. Chief Justice Roberto Concepcion for instance was quite certain that the Marcos dictatorship should have been short-lived had his brethren in the Supreme Court been unanimous against Marcos in the martial law and cognate cases the way the justices of the U.S. Supreme Court were unanimous against Nixon in the Watergate case.

One of the rationales of this truism could be found in Justice Holmes’ conception of the law. According to Holmes, law is a prediction of how a judge will behave in a case before him. The bad guy, Holmes believed, cares very little about the lofty principles of law or the “vaguer sanctions of conscience” but he does care about being made to account for his infractions. Thus, if the bad guy thinks he could get away with murder, he will proceed to commit it. To Holmes, a “man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.”

So, we wonder: Why is there a continuing corruption in high office? Why did officials charged with the administration of election laws try to manipulate the vote count in Mindanao in the last presidential election? Why was Commission on Election Chairman Benjamin Abalos in the middle of a grossly overpriced NBN-ZTE project, a transaction that had nothing to do with his official functions? Why did dynastic warlords commit gruesome crimes against innocent people in broad daylight? And what makes President Arroyo so audacious today to tread a Marcosian route to stretch her hold to power?

In the Philippines, the powerful, the wellborn, the privileged will continue to do what they do whether it is receiving or offering bribes, cheating in elections, committing heinous crimes, or circumventing constitutional requirements because of the wherewithal that they have to be self-assured in prophesying what the judge or arbiter will do in fact.

Look for example at the disturbing performance of the Secretary of Justice, Agnes Devanadera, during her interpellation at the congressional hearing for the purpose of deciding whether or not to revoke the martial law proclamation. As Manolo Quezon has live-blogged, she intrepidly suggested that the operation of the Constitution is suspended during martial law so as to allow warrantless arrests and seizure. Devanadera’s pretense was in clear violation of the express language of the 1987 Constitution and could potentially scuttle the multiple-murder prosecution of those alleged to be involved in the Maguindanao massacre who are well-known to be political allies of President Arroyo. (Some commentators are seriously worried that evidence unconstitutionally obtained during the state of martial could be excluded pursuant to the “fruit of the poisoned tree” rule.) But did this haphazard judgment on Devanadera’s part even matter if at the time she gave her answers she knew, or if she could confidently prophesize, what the majority in congress will do in fact to vote against the revocation of the proclamation?

The various claims of the other President’s men in the same congressional hearing were also unclear or otherwise speculative as to whether actual rebellion within the meaning of the new language of the Constitution – not just an imminent danger thereof or something “looming” or “in the offing”- exists to justify the proclamation of martial law or its continued existence. For one, the text of Proclamation 1959 is wanting of the minimal assertion for a valid excuse to place Maguindanao under martial law. The testimonies in support of the proclamation were just as half-hearted, half-baked and half-true or simply clashing, and the attempt at substantiation was amateurish, almost laughable. But did they really count if the Arroyo regime has been secured in its prediction of another overwhelming vote of approval of the decision of the president to proclaim martial law in the same cavalier manner that a highly partisan lower house had disposed of the several impeachment complaints against her?

The predictive odds may have changed somewhat, and Arroyo wanted to be more cautious not to up the ante any further, and so she lifted the proclamation.

But remember Marcos had likewise lifted the suspension of the privilege of the writ of habeas corpus before he placed the entire country under martial law and then proceeded to perpetuate himself in power. We ask: Is Arroyo by this and her other recent conduct poised to pull off a Marcosian rerun?

We know that Marcos and the Marcoses have gotten away with murder and more, by correctly predicting the behavior the Supreme Court. (Their regional political power has remained potent in Ilocandia and Ferdinand Marcos, Jr. has even the chance to gain national political traction as guest senatorial candidate of the Nationalista Party.) Yet, unfortunately for Marcos, history was not as kind to him all the way; he failed to prophesy what the people, the last arbiter, did in fact.

What’s your bet this time?

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