8/6/2019 After Martial Law, What - BERNAS
1/2
After martial law, what?By Fr. Joaquin G. Bernas, S.J.Philippine
Daily InquirerFirst Posted 23:42:00 12/13/2009
Filed Under: Maguindanao Massacre, Martial Law
NOW THAT MARTIAL LAW HAS BEEN LIFTED, what issues remain?
Thereare remnants of the martial law declaration that remain to be
sorted out.
For one, rebellion and murder charges have been filed. What
happens tothem? The lifting of martial law does not terminate these
charges. Rebellionand murder are crimes under the Penal Code.
Prosecuting them is distinctfrom the governments task of justifying
the imposition of martial law.
One question which is still being asked is whether the charge of
rebellionabsorbs murder, such that a rebel can only be convicted of
rebellion and notof a complex crime of rebellion with murder. (I
was asked this questionprobably because an Inquirer item said I
have been teaching criminal lawsince 1962even when I was not yet a
lawyer!) At any rate, the establishedanswer to the question is that
rebellion absorbs murder if murder wascommitted in furtherance of
rebellion. However, if murder was committed for adifferent reason,
such as in furtherance of reelection or for some othermotives, it
is a separate crime.
The meaning of rebellion in the Penal Code has been amply
discussed in anumber of cases decided by the Supreme Court. If the
rebellion chargescontinue to be pursued, I am hoping that there
will be a clear statement of themeaning of armed uprising as an
element of the crime. True, the currentjurisprudential literature
says that for armed uprising to exist there must bepeople running
around and actual fighting in the streets. But there is also
theview that if a known hostile armed group is operating in an
area, what mattersis not how the hostile forces are deployed but
what effect they are achievingthat is, whether in fact they are
achieving the aims of rebellion such asdepriving the president or
the legislature in whole or in part of their powers.
This is also related to the view I expressed that it is not at
all clear thatrebellion in the Constitution is the same as the
rebellion needed for convictionunder the Penal Code. It is not
unheard of for the Supreme Court to give to aword in a law a
meaning different from what it gives to the same word inanother
law. For instance, in at least one decision the Court said
thatdefamation, fraud, and physical injuries in Article 33 of the
Civil Code are notthe same as the words defamation, fraud and
physical injuries in thePenal Code. I am almost certain that there
are other examples.
Could the same be said of rebellion in the Penal Code and
rebellion in theConstitution? After all, the two laws have
different objectives. The Penal Code
seeks to deter and punish; Article VII, Sec. 18 of the
Constitution seeks tomaintain public safety. We have had decisions
defining the meaning of
http://services.inquirer.net/tagcloud/keyword.php?tag=Maguindanao%20Massacre&id=1260&imp=http://services.inquirer.net/tagcloud/keyword.php?tag=%20Martial%20Law&id=1262&imp=http://services.inquirer.net/tagcloud/keyword.php?tag=%20Martial%20Law&id=1262&imp=http://services.inquirer.net/tagcloud/keyword.php?tag=%20Martial%20Law&id=1262&imp=http://services.inquirer.net/tagcloud/keyword.php?tag=Maguindanao%20Massacre&id=1260&imp=
8/6/2019 After Martial Law, What - BERNAS
2/2
rebellion in the Penal Code as involving massive movements, but
noneregarding rebellion in the Constitution. In the one instance
that martial lawwas declared under the 1935 Constitution, our Court
merely yielded to the judgment of the president. Moreover, in
political and historical literature,rebellion is presented as a
wide spectrum of varying levels of disturbances.
With martial law lifted, however, there will be no occasion to
discuss thisacademic issue.
Incidentally, and this is now probably also an academic matter,
I have alsomaintained that the power of the Supreme Court over a
declaration of martiallaw is more limited than that of Congress.
Aside from being able to interpretthe meaning of rebellion, the
Court can only review the sufficiency of thefactual basis of the
proclamation. The Court cannot determine whether thechoice of
martial law is the correct solution to a factual situation.
Congress has a broader power. Even if the factual basis for the
proclamationis sufficient, Congress may still revoke the presidents
decision. TheConstitution does not limit the grounds upon which
Congress may baserevocation. However, the vote needed is a majority
of all the members ofCongress voting jointly. This does not seem to
be easy of achievement in thepresent Congress.
But what is the reason for requiring joint voting? My
recollection of thedeliberations of the Constitutional Commission
is that the thinking was that theHouse of Representatives would be
more libertarian than the Senate and thuswould be more likely to go
against a president with authoritarian tendencies
and, by superior numbers, would be able to revoke martial law.
But assomeone has said, the wisest plans of mice and men have gone
awry!
There is also the speculation that President Macapagal-Arroyo
might save herAmpatuan allies through amnesty. In fact, this is not
the only speculationcirculating about what the President might do!
Indeed, the fact of the matter isthat under the power of executive
clemency the President can grant amnestygenerally to political
offenders, but only with the conformity of a majority of allthe
members of Congress. As to pardon, the President has almost
unlimiteddiscretion to grant pardon, but only to those who have
been convicted by finaljudgment.
Finally, in a situation of martial law, there are quite a number
of legallydisputable matters. To my mind, however, one thing is
certain, namely thatthe intensity of the opposition to martial law
today and the abundance of direspeculations are due, to a great
extent, to the fact that the President does notenjoy high
credibility. And her decision to run for the House
ofRepresentatives has not served to enhance her credibility.
http://opinion.inquirer.net/inquireropinion/columns/view/20091213-241862/After-martial-law-what
