Martial Law is unconstitutional.

I’ve been anxious to write about Gloria Macapagal-Arroyo’s martial law declaration in the province of Maguindanao but my home has been deprived of Internet connection these past few days. I’m now blogging from an Internet cafe.

The first thing I’d like to address is the basis of the declaration. Although a great number of people, among them staunch critics of the Arroyo regime including a professor I deeply respect and admire, thinks that the proclamation is legally justified, for me the proclamation is unconstitutional.

The Constitution provides that, when public safety so requires, martial law may be declared in the event of either invasion or rebellion. Based on the limited reports I am getting (no Internet, boo), the Regime is claiming that since government services have ceased to function in Maguindanao, the province is in a virtual state of rebellion.

The reasoning behind the Regime’s equating anarchy (which, by the way, the Supreme Court disputed by saying that the courts were still functioning prior to the declaration) with rebellion escapes me. There was never any statement from anyone questioning the Constitution and the duly-constituted government, nor was there any mobilization of any form of armed force against the government. Yet the Regime insists that there is a rebellion, albeit only implied. Weird.

But does this “implied rebellion,” as differentiated from an actual rebellion (where there is an actual take-over of government facilities by armed forces hostile to the State), constitutionally justify martial law? I think this question is similar to the debate on whether so-called constructive resignation, as differentiated from expressed resignation, justify Joseph Estrada’s removal from the presidency in 2001. For me, the answer is no. But let’s leave that to the lawyers. Instead, let’s address another important operative clause in the Constitution’s martial law provision: the phrase when public safety so requires. Did the implied rebellion in Maguindanao reach a point where public safety required martial law? To answer this question, we have to answer another question: Did the implied rebellion reach a point where the government could no longer enforce the law within its normal, non-emergency, powers? The answer is no.

This is elementary political science, and even the AFP and Ronnie Puno (both are reportedly against martial law) know it. Just as it didn’t take a martial law declaration to quell the actual rebellions led by the military’s Magdalo faction in 2003 and in 2005, the “implied rebellion” in Maguindanao could be also quelled through the government’s ordinary, non-emergency powers.

For instance, since the virtual rebellion has not even reached the stage of armed mobilization, the Department of the Interior and Local Government could suspend the supposed leaders of the virtual rebellion- the Ampatuans- from their local positions and have them arrested through, say, mobilization of a couple of batallions of PNP operatives, with support from the Armed Forces of the Philippines. Two batallions would be enough to intimidate the Ampatuans’ private army, which could then be disarmed. Government services could then be restored by installing officers in charge of the province’s local government.

The government does not need martial law to do these. In short, public safety does not require martial law under the current circumstances in Maguindanao. Ergo, the martial law proclamation is unconstitutional.

Now, what is the implication of this martial law? Why did Arroyo had to resort to it? I will write about these tomorrow since my fifteen minutes in this Internet cafe is already over.

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