Saturday, June 20, 2009

Writ of Habeas Corpus and Why we must act now

There are only two legal prerequisites in the declaration of martial law in the Philippines. Under Section 18, Article 7 of the 1987 Constitution, the President as Commander-in-Chief may declare martial rule only if either of these two conditions exists: a state of rebellion or invasion.

Let's not discuss about invasion since this does not and will not happen in the future. Let's just discuss about rebellion. What are the legal prerequisites that define the existence of rebellion?

Philippine jurisprudence defines rebellion or insurrection as an act:

"committed by 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 Philippine Islands or any part thereof, of any body of land,
naval or other armed forces, depriving the Chief Executive or the Legislature,
wholly or partially, of any of their powers or prerogatives. (As amended by R.A.
6968)." (Article 134 of the Revised Penal Code of the Philippines, ACT NO.
3815," AN ACT REVISING THE PENAL CODE AND OTHER PENAL LAWS")

There must be two conditions present for rebellion to exists: an armed public uprising must be present and the purpose must be of removing allegiance from the government "or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, whooly or partially, of any of their powers or prerogatives."

Now, then, I would not delve into how the Supreme Court defines or construes the crime of rebellion, for the law is clear on that. What I would like to expose here is the immediate effects of such a declaration. In our jurisdiction, the most obvious effects of a declaration of martial law is the suspension of the writ of habeas corpus.

Under our laws, a suspension of the writ or questioning the rationale behind the suspension is at most a political question (Barcelon vs. Baker; Montenegro vs. Castaneda). President Elpidio Quirino did just that in suspending the writ of persons in Central Luzon to quell a rebellion there. The Supreme Court did nothing to intervene.

However, in Lansang vs. Garcia, the Supreme Court declared that it has the power to determine whether the decision to suspend has factual basis. This is a reversal from the two earlier decisions in which the Court practically said that the president has the sole and ultimate discretion.

Writs are automatically suspended when the government declares martial rule, being, as what the Supreme Court said in Aquino vs. Enrile, that "it has the right to protect itself against those who want to destroy it." Having said so, the Supreme Court again reverted back to the Barcelon and Montenegro decisions when it said that the rationale behind such suspensions are solely exercised by the Chief Executive in Garcia-Padilla vs. Enrile.

Yet, when the Marcos regime ceased to exist, the SC again went back to its ruling in Lansang and declared that it has the power to determine whether the suspension is, in fact, based on factual and existing conditions of rebellion.

Effects of the declaration of martial rule

The immediate effects is the suspension of the writ. The second effect is the calling out of the Armed Forces to quell the rebellion by arresting and prosecuting those who are taking part or took part in the event. In People vs. Hernandez, the SC says that people arrested during a rebellion may not be charged with any other offense except the crime of rebellion. For example, if a rebel killed a police officer at the height of the rebellion, he may only be charged with the crime of rebellion and not complexed with homicide or murder (this is the prevailing doctrine, revisited in Enrile vs. Salazar case)

The writ of Habeas Corpus, says US Constitutional expert Paul Mishkin, is a writ of liberty, whereby it allows a person to exercise the fullest freedoms and rights guaranteed under a democratic state. No one, not even government, may arrest and detain a person , except if that person is committing or has committed a violation of the penal statutes of that state.

Therefore, a suspension of such writ allows the State to impose measures against its citizens. It may conduct arrests, occupy private businesses and momentarily suspend the workings and processes of democracy. All rights guaranteed under the Bill of Rights are suspended. Unlike the 1935 Constitution, however, civil courts remain in operation even during the period of martial rule.

Under the 1987 Constitution, the suspension may only be within a period of sixty days. However, during this period, any citizen may go to the Supreme Court and question its validity. The Chief Executive is also required and specifically directed by the Constitution to report to Congress within 48 hours the factual basis for such a declaration. Congress, in turn, votes whether to sustain such a declaration or quash it.

The fears of people

What the people fear about this is the reality that this present administration exercises its powers in the most tyrannical and in wanton fashion that defies reason. There is a factual basis for such fears.

In Presidential Proclamation 1107 when Mrs. Arroyo availed of such powers to quell the purported "Oakwood Mutiny" rebellion, she did it without considering the real construction of Section 18, Article 7 of the 1987 Constitution. Clearly, the rebuke she got from the Supreme Court in David vs. Macapagal-Arroyo says much about her tendency to do things in a reckless fashion that violates the very democratic principles of our society. PP 1107 says much on how this administration resorts to legal perfidy or constitutional innocuousness to justify its stay in power.

In the case of the Oakwood mutiny, the very name of the event speaks for itself--it was a mutiny allegedly committed by a group of soldiers. What these idealistic officers occupied was a posh hotel in Makati. They never occupied a naval facility nor a military camp. They never really called for people to rebel. It was just a glorified or bizarre way of doing a press con.

There was even no "armed public uprising" in the first place, since those who only inside Oakwood had arms. I did not see any other person bearing arms outside Oakwood, except maybe a few soldiers guarding the hotel.

So then, when Executive secretary Eduardo Ermita threatened to declare martial law in case protestors against House Resolution 1109, was it just a hollow threat or a real one?

If, for example, protestors carry sticks and brooms during Mrs. Arroyo's SONA, would that justify a declaration of martial rule? No.

If, say, they shout invectives against Mrs. Arroyo and mass themselves infront of that brass statue in EDSA, would that, be interpreted as rebellion? Again, no.

If, say, Patricio Mangubat and all cyber activists really went out of their perfumed rooms and flood the streets and join those thousands of warm bodies calling for the removal of Mrs. Arroyo from power, would that be rebellion? Of course, no.

That's different when we protest not just by using our laptops or shout ourselves out hoarse but we also carry machetes or guns or armalites or we have bombs or grenades in our hands, that would really be rebellion. And, of course, we'll surely and like lambs, meekly line up for jail.

But, of course, like I said, this administration is different from the others, not just in the way they steal our monies, but also in the way they bend the rules and the law in order to get what they want.

I would not be surprised that, if they see a Bayan Muna flag bearer or a Sanlakas member holding a stick pole, Ermita and Mrs. Arroyo would team up and proclaim martial rule the minute they see these people in the streets. Ermita would say that stick is a bladed weapon and a threat to democracy.

Or, when they see the face of Satur or Teddy Casino in their TV screens down that dark garrisoned monitoring basement of theirs inside the palace, Ermita and Mrs. Arroyo, along with her fat hubby, immediately think of declaring martial rule and call out the armed forces. Those words of Satur really hurt. And these conos don't want nothing of this.

More vigilance and More Actions

So, now, what I'm trying to say is simply this---let's heed what Senator Kiko Pangilinan urged us to do---remain vigilant and even heighten our campaign against this despotic regime.

Don't follow other people's call for sobriety. No. You don't act calmly when you're being killed or you're being raped. No.

I hate to say this but all the more do we fight this government, a menace of democracy. You just don't retire to your rooms and just type your anger away---you need to join those mass of people out there in the streets and protest how things are getting fucked up and how this government shows irreverence on the state of things.

These people who call for sobriety, of the Gandhian way of showing dissent, are clearly mistaken. Or they're simply members of the conscience block of the elite. As I wrote some entries ago, these people are stooges of the elite class. They don't want an authentic revolution. They simply want us to toe the line and not change things up because that would surely affect their economic status.

All the more you kick, you protest, you shout, you holler, you type those word bombs and you hold those stick and poles ever tighter. "No cause is left but the most ancient of all, the one, in fact, that from the beginning of our history has determined the very existence of politics, the cause of freedom versus tyranny" says Hannah Arendt.

"The objector and the rebel who raises his voice against what he believes to be the injustice of the present and the wrongs of the past is the one who hunches the world along" adds Clarence S. Darrow.

And what Ralph Waldo Emerson clearly wrote a century ago, " Every actual state is corrupt. Good men must not obey laws too well."

And I say, let's push forward so that tyrants will never ever think of ever occupying that Palace and never ever dream of destroying the very institutions of governance and never ever tinker with our democracy.