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By 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.1 What we

in Congress do today could serve as precedent for generations to come. Ladies

and gentlemen of the Congress, we are eyeball to eyeball with history.

We start with certain premises. One premise is that a question of law

should not be considered as a question of wisdom. Law, particularly the

Constitution, is supreme. Dura lex sed lex: the law is law. The law must be

upheld, even if it entails heavy sacrifices. Another premise is that, reading the

constitution 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 the

Constitution. Its words must be given their ordinary meaning. The primary

objective is to carry out the intent of the people who ratified it. As the Supreme

Court ruled: “The Constitution does not derive its force from the convention which

framed it, but from the people who ratified it.” 2

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 the

necessary corollary that in case of doubt, the doubt should be resolved against

martial law.

Failure to Meet Test for Martial Law

We are here dealing with martial law, which is not formally defined by the

Philippine 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: 3

“Martial law is the public law of necessity. Necessity calls it forth,

necessity justifies its exercise, and necessity measures the extent and degree to

which it may be employed. That necessity is no formal, artificial, legalistic

concept but an actual and factual one: it is the necessity of taking action to

safeguard the state against insurrection, riot, disorder, or public calamity. What

constitutes necessity is a question of fact in each case . . . .

“Martial law is the public right of self-defense against a danger threatening

the 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 in

nature, may be applied. The extent of military force used depends, in each

instance, upon the extent of the disturbance.”

Hence, I humbly submit this general test for constitutional martial law: Is

martial law a necessity for the existence of the state? The answer is “No.” I

further submit this particular test: Is there an actual rebellion, and does public

safety require martial law? Again, the answer is “No.”

The Constitution imposes two conditions for martial law: there should be a

state of actual rebellion; and public necessity requires it. These conditions do not

exist today.

The First Condition: Actual Rebellion

The Penal Code defines the crime of rebellion as: “rising publicly and

taking arms against the Government for the purpose of removing from the

allegiance to said Government or its laws, the territory of the Republic of the

Philippines 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 any

of their powers and prerogatives.”

In other words, rebellion is open, organized, and armed resistance to

established government. If there is such a rebellion, why have we never seen any

such footage in the TV newscasts or on the internet? Are we now adopting the

new concept of a secret rebellion? That would be a contradiction in terms, an

oxymoron, like a woman who is secretly pregnant.

Proclamation No. 1959 (here known as Proclamation) does not even claim

that there is a state of actual rebellion. This in itself is a fatal flaw. Instead, the

Proclamation claims that “heavily armed groups in the province of Maguindanao

have established positions to resist government troops.” The Constitution does

not impose the condition that heavily armed groups have established positions to

resist. The Constitution imposes the condition that there is an actual rebellion.

Thus, the Proclamation does not comply with the first condition.

Furthermore, rebellion is a political offense, not a common crime. The

essence of rebellion is ideological motivation, meaning the advocacy that the

existing government should be destroyed, by removing citizen allegiance. I

respectfully point out that where there is no ideological motivation, there is no

rebellion. As explained by a 1995 Supreme Court decision: 4

“By its very nature, rebellion is essentially a crime of masses or multitudes

involving crowd action which cannot be confined a priori within a predetermined

bound. Its gravamen is an armed public uprising. One aspect noteworthy in

the commission of rebellion is that other acts committed in its pursuance are, by

law, absorbed in the crime itself because they require a political character.

“If no political motive is established and proved, the accused should be

convicted of the common crime and not rebellion. In cases of rebellion, motive

relates to the act, and mere membership in an organization dedicated to the

furtherance of rebellion would not, by itself, suffice. The crime of rebellion

carries a lighter penalty than murder. Thus, it is imperative for our courts to

ascertain whether or not the act was done in furtherance of a political end. It is not

enough that the overt acts of rebellion are proven. Both purpose and overt acts

are essential components of the crime.” (Emphasis added.)

The Second Condition: Public Safety Requires It

The Constitution does not define “public safety,” although it also uses this

term to restrict the right to travel. In the light of this lacuna in the law, I humbly

submit that the emphasis should be on the public nature of safety. The term

“public” refers to the people of a nation or community as a whole.

But crimes committed by warlords against each other are basically threats

to the safety only of their respective camps. What they constitute are not threats to

public safety per se, but acts of terrorism, defined by law as the commission of a

major crime, “thereby sowing and creating a condition of widespread and

extraordinary fear and panic among the populace, in order to coerce the

government to give in to an unlawful demand.”

The Proclamation, unlike its omission to use the word “rebellion,” does use

the term “public safety,” but in a way that, out of kindness, I shall call a non

sequitur, or a conclusion that does not logically follow from its premise. The

Proclamation claims that “the local judicial system and other government

mechanisms in the province are not functioning, thus endangering public safety.”

I am so not understanding this! When government collapses, we call that anomie,

not a threat to public safety!

Supreme Court is Last Resort

In the nature of democracy, party politics will intrude on this debate. If we

in the Senate fail to convince our colleagues in the House, then we are a sinking

ship, and we will go down with this political Titanic. But the debate does not end

here. It will go on to the Supreme Court. I take the attitude that the legal problem

posed by martial law is not civilian control over the military, but judicial control

over the executive and legislative branches’ delegation of authority to the armed


For my part, I do not see martial law as a new order of society in

Maguindanao or the ARMM. Martial law is the future refusing to be born. I vote

to revoke martial law.



Constitution, Article 7, Section 18.
IBP v. Zamora, 331 SCRA 81 (2000)
Federich B. Weiner, A Practical Manual of Martial Law, 16-17 (1940).
People v. Lovedioro, 250 SCRA 389 (1995)
Michael F. Noone, Jr., “Martial Law” in The Oxford Companion to

American Law, 545-546 (Oxford University Press: 2002)