The heinous massacre (Maguindanao massacre) of civilians in Ampatuan, Maguindanao deserves competence of the highest order in the gathering, preserving and evaluation of evidence as well as in the subsequent arrest and prosecution of its perpetrators. It should also be the platform for a sober approach that will comprehensively address the issue of private armies of misguided politicians. Any meaningful solution should be led by civilians preferably those who can remain independent of influence from national public officials who have openly declared partisan interests in the upcoming election.
The reported declaration of Martial Law in Maguindanao should be assessed in this light as well as in terms of its compliance with the very stringent requirements contained in the 1987 Constitution.
The President should also observe an extraordinary level of transparency and accountability with this declaration. She must clearly demonstrate why martial law needs to be declared. The proclamation of Martial Law can be used as a means to gain unfair advantage in the upcoming elections or as an excuse to declare a failure of elections contrary to the peoples will. The need for transparency and accountability is even more urgent given the unnecessary proclamation from the spokespersons of the Office of the President that the incumbent has remained friends with those widely suspected of having committed the atrocities in Mindanao. The need for transparency and accountability is also necessary in the light of the role of the suspected perpetrators in the controversies surrounding the 2004 elections.
Under the 1987 Constitution, martial law can only be declared in cases of invasion or rebellion and only when public safety demands it. Rebellion requires that there is at least a taking up of arms publicly directed against an existing government. Martial law cannot be declared because the state has failed to prevent massive human rights violations by leaders that the national government itself has nurtured. Martial law cannot be proclaimed to cover up the lack of professional competence in the gathering, preservation, evaluation of evidence and in the arrest and detention of the perpetrators. Martial law is also not the proper legal response to the issuance of a writ of amparo in favor of the Ampatuan family.
A report on how the proclamation was executed must be made within 48 hours of its proclamation to both the House of Representatives and the Senate. Congress must convene within 24 hours after it is proclaimed. Any proclamation of martial law by the President can only have a maximum effectivity of 60 days. This can be revoked (or extended) by Congress. Any revocation by Congress cannot be overturned by the President. In case martial law has been proclaimed, the electoral ambitions of all members of the House of Representatives and the Senate should be put aside so that they can observe their obligations required in the Constitution.
The proclamation of martial law does not supplant the civilian bureaucracy. It does not supplant the operation of the Constitution including its provisions for the protection of individual and collective rights. It does not supplant the operations of local government nor the fact that local governance is subject to existing law. Martial law does not automatically suspend the writ of habeas corpus or justify illegal arrests and detention. In other words, it is not authority for the Commander in Chief or the military to replace civilian government. Certainly, the public should be encouraged to engage the courts should there be any violation of any provision of law or the constitution.
Abuse of executive privilege will only tarnish the memories of those who have been martyred by the violent excesses of misguided public officials. I call for vigilance for competent, transparent, accountable government as well as for the protection of human rights of peoples in Mindanao.
Quezon City, December 5, 2009
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