REVOKE MARTIAL LAW IN MAGUINDANAOBy Sen. Miriam Defensor Santiago

(Explaining her vote at the Congress joint session on 9 December 2009)Mr. Senate President, Mr. Speaker, and distinguished colleagues:Today, we make history. For the first time, all three branches of government will implement the constitutional provision on martial law.

What wein Congress do today could serve as precedent for generations to come. Ladiesand gentlemen of the Congress, we are eyeball to eyeball with history.

We start with certain premises. One premise is that a question of lawshould not be considered as a question of wisdom. Law, particularly theConstitution, is supreme.

Dura lex sed lex

: the law is law. The law must beupheld, even if it entails heavy sacrifices. Another premise is that, reading theconstitution is not a mere function of literacy. Reading – and much more,construing – the Constitution is a technical skill. We have to follow the rules of constitutional construction, collected from various Supreme Court decisions over the ages.The primary aid to constitutional construction is the language of theConstitution. Its words must be given their ordinary meaning. The primaryobjective is to carry out the intent of the people who ratified it. As the SupremeCourt ruled: “The Constitution does not derive its force from the convention whichframed it, but from the people who ratified it.”

The intent of the people is gleaned from what the Germans call

Zeitgeist

, or the spirit of the age. In 1986, the people wanted an extremely restricted system of martial law. I humbly submit that the temper of those times provides thenecessary corollary that in case of doubt, the doubt should be resolved againstmartial law.

Failure to Meet Test for Martial Law

We are here dealing with martial law, which is not formally defined by thePhilippine Constitution, and which is not even mentioned at all by the U.S.Constitution, which serves as our template. I will use this 1940 definition:

“Martial law is the public law of necessity. Necessity calls it forth,necessity justifies its exercise, and necessity measures the extent and degree towhich it may be employed. That necessity is no formal, artificial, legalisticconcept but an actual and factual one: it is the necessity of taking action tosafeguard the state against insurrection, riot, disorder, or public calamity. Whatconstitutes necessity is a question of fact in each case . . . .“Martial law is the public right of self-defense against a danger threateningthe order or the existence of the state. When the ordinary civil authorities – the police – are unable to resist or subdue a disturbance, additional force, military innature, may be applied. The extent of military force used depends, in eachinstance, upon the extent of the disturbance.”

Hence, I humbly submit this general test for constitutional martial law: Ismartial law a necessity for the existence of the state? The answer is “No.” Ifurther submit this particular test: Is there an actual rebellion, and does publicsafety require martial law? Again, the answer is “No.”The Constitution imposes two conditions for martial law: there should be astate of actual rebellion; and public necessity requires it. These conditions do notexist today.

The First Condition: Actual Rebellion

The Penal Code defines the crime of rebellion as: “rising publicly andtaking arms against the Government for the purpose of removing from theallegiance to said Government or its laws, the territory of the Republic of thePhilippines or any part thereof, or any body of land, naval, or other armed forces,or of depriving the Chief Executive or the Legislative, wholly or partially, of anyof their powers and prerogatives.”In other words, rebellion is open, organized, and armed resistance toestablished government. If there is such a rebellion, why have we never seen anysuch footage in the TV newscasts or on the internet? Are we now adopting thenew concept of a secret rebellion? That would be a contradiction in terms, anoxymoron, like a woman who is secretly pregnant.Proclamation No. 1959 (here known as Proclamation) does not even claimthat there is a state of actual rebellion. This in itself is a fatal flaw. Instead, the