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EIGHTEEN of 23 senators yesterday rejected Proclamation 1959 placing Maguindanao province under martial law.

But they could not possibly sway the 268 congressmen, most of them pro-Arroyo, to get the proclamation junked in a joint session scheduled today.

The Senate and the House, voting jointly, can revoke or uphold the proclamation by a simple majority, or 147 votes.

Speaker Prospero Nograles said majority of the 268 House members are in favor of the imposition of martial law in Maguindanao.

After an all-party caucus last night, the House agreed to a joint session with the Senate. This may not be necessary if 147 House members come up with a resolution supporting the declaration, Nograles said.

Former Senate President Frank Drilon said the Supreme Court will eventually have to rule on the constitutionality of the proclamation.

He said he did not expect Congress to muster the political will to revoke the President’s order.

House majority leader Arthur Defensor, assistant majority leader Jesus Crispin Remulla, minority leader Ronaldo Zamora and secretary general Marilyn Yap were set to meet with their Senate counterparts at the Shangri-la Hotel last night to iron out a set of rules to govern the joint session on martial law and to decide when it will be held.

Senators held a closed-door caucus. Only three of them – Senate President Juan Ponce Enrile, Joker Arroyo and Edgardo Angara – favored the martial law declaration.

Administration Senators Ramon Revilla Jr. and Lito Lapid were undecided.

Those who are against martial law were Benigno Aquino III, Rodolfo Biazon, Alan Cayetano, Pia Cayetano, Francis Escudero, Jinggoy Estrada, Richard Gordon, Gregorio Honasan, Panfilo Lacson, Loren Legarda, Jamby Madrigal, Francis Pangilinan, Aquilino Pimentel Jr., Mar Roxas, Miriam Santiago, Antonio Trillanes IV, Manny Villar and majority leader Juan Miguel Zubiri.

Those who are against martial law expressed belief that there is neither an ongoing or looming rebellion in the province.

Enrile said he is more inclined to shortening military rule in the province to less than the allowable 60 days "to pressure the executive to solve the problem of Maguindanao the soonest possible time."

Santiago, also an administration ally, said those who advised Arroyo to declare martial law "should be taken out and shot."

"They should be buried with a backhoe. It’s wrong," she said.

USELESS

Santiago said the joint session could render the Senate vote useless, because to revoke it would need at least a majority of all the Congress members, meaning 146 votes.

"The House of Representatives could block a revocation simply by being absent, or by casting no vote. Even if all 23 senators voted for revocation, there would still be no compliance with the charter," she said.

Santiago said Proclamation 1959 suffers from "doctrinal confusion," and she would vote to revoke it.

"It will hardly be worth the effort to attend the joint session, because the Senate will be atomized, but at least every senator could explain his or her side," she said.

The Constitution requires an actual state of rebellion, which is defined as an armed public uprising, she said.

"But the TV public never saw any armed public uprising against the government. What the public saw was an act of terrorism," she said.

Santiago said the only definition of rebellion in the Constitution should be taken from the Penal Code.

She said 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 the government, any part of the territory, or of the armed forces, or the powers of the chief executive, and the Congress."

NUMBERS

Nograles filed Resolution 1525 supporting Proclamation 1959, which was being passed around for signatories.

"If the resolution which I have filed will get the support of the majority of the members or a total of 147, which is a majority of all the members of Congress with the House and Senate voting jointly as prescribed under the Constitution, there’s no need for a joint session," he said.

The Speaker, after consulting with his former constitutional law professor and Constitutional Convention delegate Fr. Joaquin Bernas, said a joint session of Congress will only be convened "if the collective sentiment is to revoke the presidential issuance."

"We don’t need a joint session if we are in concurrence with the Presidential Proclamation 1959," he said before the caucus.

Nograles said that even if Congress concurs with the proclamation, Congress can still revoke it in a joint session within 60 days after its effectivity.

RULES

Zubiri was tasked to discuss with House leaders to agree on rules of procedure which will govern joint session. "Otherwise the session will be chaotic," Zubiri said.

There are no rules on the conduct of joint session under the respective rules of the two chambers.

House secretary Yap said a joint session "cannot be immediately convened due to the absence of rules governing the proceedings."

"The Rules of the House of Representatives contain no provision on the conduct of a joint session for the purpose of deliberating upon, revoking, or extending a proclamation of martial law or suspension of the privilege of the writ of habeas corpus," she said in a letter to Nograles.

IMMINENT REBELLION

Santiago said the martial law proclamation, on closer analysis, is based merely on imminent rebellion, which she said the Charter purposely excluded as a ground for martial law.

"The President was ill-served by her legal advisers. I accuse her shadowy lawyers of engaging in creative constitutional construction. If the Constitution is clear, there is no room for interpretation. The entire ‘Whereas’ part of the proclamation is an exercise in creative constitutional interpretation," she said.

Santiago lamented that the members of the Constitutional Commission voted for the use of the phrase "voting jointly" instead of the phrase "voting separately," as recommended by Commissioner Ambrosio Padilla.

Pimentel said he expects a heated debate during the joint session.

"Yun ang gusto ko mangyari kahit tatalunin nila kami sa boto, at least maipaliwanag naming kung bakit hindi dapat magkaron ng martial law sa Maguindanao," he said.

SLOPPY WORK

Escudero said the rush to justify the imposition of martial law in Maguindanao led to the legal booboo in the proclamation and should not be taken lightly.

"Republic Act 6986 cited in Proclamation 1959 as basis for the definition of rebellion is a law that creates a high school in barangay Dulop, Dumingag, in Zamboanga del Sur. It reflects the sloppy legal work done on this legal fiasco," Escudero said.

Biazon said the declaration of martial law in Maguindanao could be that first "sinister step in" absolving the close political allies of the President, the Ampatuans, for the massacre in Maguindano.

"There is no need to declare martial law which does not add anything to the problem of having to arrest and prosecute the perpetuators of the massacre. We have laws, the courts, the means – the police and their brother in arms the military. We don’t need any powers and arrangements perceived with the declaration of Martial Law," Biazon said.

Trillanes said Proclamation 1959 in Maguindanao is prone to be abused by the current administration.

"The primary issue at hand is not whether the declaration of martial law is the right policy to address the situation in Maguindanao but whether Gloria Macapagal-Arroyo could be entrusted with such enormous power," he said. "Clearly, the answer is no."

"It would likely be an opening that she is bound to take advantage of," he warned. "We must guard against every possible insidious plot by GMA to perpetuate herself in power beyond 2010."

Madrigal said of a joint session: "This is a sham. Ito ay isang malaking sarsuwela na nagpapatunay lamang na ‘di seryoso si Ginang Arroyo na parusahan ang kanyang minamanok na pamilya Ampatuan."

PETITIONS

Five separate petitions were filed by Rep. Didagen Dilangalen (1st district of Maguindanao); Sigfrid Fortun, lawyer of the Ampatuans; the National Union of People’s Lawyers (NULP) and the party-list groups Bayan Muna, Gabriela and Bagong Alyansang Makabayan (Bayan); the group of former Senate President Jovito Salonga and lawyer Harry Roque; and a group of law students led by Joseph Nelson Loyola against Proclamation 1959.

The petitioners asked the tribunal to issue a temporary restraining order as they said the declaration of martial law in Maguindanao is unwarranted and in violation of the Constitution.

Court spokesman Jose Midas Marquez said all petitions relating to the Maguindanao incident would be tackled during the regular en banc session today.

Aside from the five petitions, the other issues on the SC agenda are the petitions filed by ARMM Gov. Zaldy Ampatuan and other ARMM officials seeking to enjoin government authorities from taking control of the region and suspending local officials and employees accused of having involvement in the so-called Maguindanao massacre; the petition of the Ampatuans seeking the issuance of TRO against their arrest without warrant; and the motion of the Department of Justice seeking the transfer of court proceedings involving the Maguindanao massacre to any court in Metro Manila.

‘MERE POLICE MATTER’

Dilangalen said the Constitution narrowed to actual invasion or rebellion the grounds for declaring martial law. What transpired in Maguindanao, he said, was a case of multiple murders related to the coming elections, "which at best can be considered as a mere police matter."

"It is therefore manifestly clear that Proclamation 1959 has no sufficient factual basis and must be struck down as unconstitutional," he said.

Fortun said the local judicial system that has jurisdiction over Maguindanao is fully operational, contrary to the claim of Justice Secretary Agnes Devanadera.

He also said the Constitution allows the President to suspend the privilege of the writ of habeas corpus or place the country under martial law only "in case of invasion or rebellion, when the public safety requires it."

"Declaration of martial law is not justified on the mere pretext of the need to expedite judicial proceedings to bring suspected criminals before the proper authorities," he said.

NO IMMINENT DANGER

Fortun said even imminent danger of rebellion does not exist in Maguindanao, considering that the government has given the assurance that it has full control of the situation following the declaration of a state of emergency and the corresponding take-over of ARMM by government authorities.

Fortun also noted that the Ampatuans have already signified that they were willing to cooperate with authorities in connection with the massacre.

The NUPL and its co-petitioners disputed the government’s claim that heavily-armed groups have established positions in some areas in Maguindanao. They said this has not been confirmed by other sources except the military and executive officials.

The petitioners said mere allegations about the alleged deterioration of the condition of peace and order in Maguindanao to the extent that the local judicial system and other government mechanisms in the province are not functioning are not enough basis for a declaration of martial law.

ABUSE OF DISCRETION

Salonga’s group said Arroyo abused her discretion in declaring martial in Maguindanao, considering that the Maguindanao massacre is a police matter already addressed by her declaration of a state of emergency over the province.

"There is no one to blame for the breakdown of government functions in Maguindanao but the Arroyo administration itself, since from Nov. 27, 2009, it had shut down government offices in the province and placed them under the control and supervision of Interior and Local Government Secretary Ronaldo Puno," the group’s petition said.

It noted that the alleged acts of rebellion of the Ampatuans had already been quashed with the confiscation by the police and the military of huge caches of arms, explosives and ammunition. – With Evangeline de Vera

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