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After martial law, what?

By Fr. Joaquin G. Bernas, S.J. Philippine Daily Inquirer First Posted 23:42:00 12/13/2009 Filed Under: Maguindanao Massacre, Martial Law

NOW THAT MARTIAL LAW HAS BEEN LIFTED, what issues remain? There are remnants of the martial law declaration that remain to be sorted out. For one, rebellion and murder charges have been filed. What happens to them? The lifting of martial law does not terminate these charges. Rebellion and murder are crimes under the Penal Code. Prosecuting them is distinct from the governments task of justifying the imposition of martial law. One question which is still being asked is whether the charge of rebellion absorbs murder, such that a rebel can only be convicted of rebellion and not of a complex crime of rebellion with murder. (I was asked this question probably because an Inquirer item said I have been teaching criminal law since 1962even when I was not yet a lawyer!) At any rate, the established answer to the question is that rebellion absorbs murder if murder was committed in furtherance of rebellion. However, if murder was committed for a different reason, such as in furtherance of reelection or for some other motives, it is a separate crime. The meaning of rebellion in the Penal Code has been amply discussed in a number of cases decided by the Supreme Court. If the rebellion charges continue to be pursued, I am hoping that there will be a clear statement of the meaning of armed uprising as an element of the crime. True, the current jurisprudential literature says that for armed uprising to exist there must be people running around and actual fighting in the streets. But there is also the view that if a known hostile armed group is operating in an area, what matters is not how the hostile forces are deployed but what effect they are achieving that is, whether in fact they are achieving the aims of rebellion such as depriving the president or the legislature in whole or in part of their powers. This is also related to the view I expressed that it is not at all clear that rebellion in the Constitution is the same as the rebellion needed for conviction under the Penal Code. It is not unheard of for the Supreme Court to give to a word in a law a meaning different from what it gives to the same word in another law. For instance, in at least one decision the Court said that defamation, fraud, and physical injuries in Article 33 of the Civil Code are not the same as the words defamation, fraud and physical injuries in the Penal Code. I am almost certain that there are other examples. Could the same be said of rebellion in the Penal Code and rebellion in the Constitution? After all, the two laws have different objectives. The Penal Code seeks to deter and punish; Article VII, Sec. 18 of the Constitution seeks to maintain public safety. We have had decisions defining the meaning of

rebellion in the Penal Code as involving massive movements, but none regarding rebellion in the Constitution. In the one instance that martial law was declared under the 1935 Constitution, our Court merely yielded to the judgment of the president. Moreover, in political and historical literature, rebellion is presented as a wide spectrum of varying levels of disturbances. With martial law lifted, however, there will be no occasion to discuss this academic issue. Incidentally, and this is now probably also an academic matter, I have also maintained that the power of the Supreme Court over a declaration of martial law is more limited than that of Congress. Aside from being able to interpret the meaning of rebellion, the Court can only review the sufficiency of the factual basis of the proclamation. The Court cannot determine whether the choice of martial law is the correct solution to a factual situation. Congress has a broader power. Even if the factual basis for the proclamation is sufficient, Congress may still revoke the presidents decision. The Constitution does not limit the grounds upon which Congress may base revocation. However, the vote needed is a majority of all the members of Congress voting jointly. This does not seem to be easy of achievement in the present Congress. But what is the reason for requiring joint voting? My recollection of the deliberations of the Constitutional Commission is that the thinking was that the House of Representatives would be more libertarian than the Senate and thus would be more likely to go against a president with authoritarian tendencies and, by superior numbers, would be able to revoke martial law. But as someone has said, the wisest plans of mice and men have gone awry! There is also the speculation that President Macapagal-Arroyo might save her Ampatuan allies through amnesty. In fact, this is not the only speculation circulating about what the President might do! Indeed, the fact of the matter is that under the power of executive clemency the President can grant amnesty generally to political offenders, but only with the conformity of a majority of all the members of Congress. As to pardon, the President has almost unlimited discretion to grant pardon, but only to those who have been convicted by final judgment. Finally, in a situation of martial law, there are quite a number of legally disputable matters. To my mind, however, one thing is certain, namely that the intensity of the opposition to martial law today and the abundance of dire speculations are due, to a great extent, to the fact that the President does not enjoy high credibility. And her decision to run for the House of Representatives has not served to enhance her credibility.