A day at the Laurels

Last Saturday something extraordinary happened in my life. I believe it was destiny that brought me there. Not to be melodramatic or anything, but that specific occasion is certainly one for the books. It may not be that of a big deal to some, but for a probisyano who takes interest in Philippine politics by heart, it was definitely a dream come true.

Late last year, I have written a piece about the late Salvador H. Laurel. I offered his side of the story because I felt that this man deserves a fair treatment before the bar of history. With the death of former President Cory Aquino and the consequent decision of Senator Noy Aquino to run for the presidency, the timing was just perfect. People would surely be talking about the legacy of the former president and again, the role of the obscure Vice-President Laurel could be reexamined for the younger readers. I got frustrated when my article did not generate any comments. I thought, maybe most people don’t seem to care who Doy Laurel was, and more importantly, what he did for the country. I don’t get it, how could anyone possibly think that EDSA is Cory and Cory is EDSA? She was the symbol alright, but without the moving forces that stood behind her amidst this political strife, she was just that…a symbol. Consequently, the February revolution to me, was a direct result of a long arduous process rather than a miracle from heaven. It could not have been possible had the opposition, led by Doy Laurel, remained reticent in the heat of the “protracted” political struggle. Practically alone in the wilderness, Doy stirred up the emotions of the people. Doy kept the flame burning so to speak. He valiantly fought dictatorial rule using all possible and “legal” means to help sustain the dissent and anger of the people against the rampant injustices and oppression. Never Again, was his battlecry! Now, could this be a hoax or perhaps an overstatement? I don’t think so. These are facts supported by history writers and scholars. To look the other way around just because you happen to be a devout believer of Ninoy and Cory, is outright preposterous and a narrow minded look at history. And so that article proved to be useless for quite sometime. For the longest time, that article remained unread, untouched and archived until I received an email from a person named Steve Bascos.

Steve works as staff for special projects of Madame Celia Diaz-Laurel, widow of the late Vice-president, for more than ten years now. In his email, he asked permission to re-post my article in the official website of Doy Laurel. At first I didn’t buy it. As a fledgling writer, I highly value exclusivity in all of my writings… for the simple reason that even up to this very moment, I’ve got little confidence on my written rhetoric. However, after a few exchanges, Steve finally told me that Madame Celia liked my article. My eyes suddenly grew bigger as I read the e-mail. All I could mutter was, “Is this for real?” Then a follow up, “By Celia, he meant Celia Diaz-Laurel?” My initial response was expected because Madame Celia is not only the dutiful wife of Doy but she also happens to be the author of Doy’s coffee table biography. All of a sudden, I suddenly felt edgy. I was worried that I wasn’t able to deliver Doy’s side of the story with utmost accuracy. How could this be? But it appears that Steve was telling the truth. There is indeed an official website under construction in honor of the forgotten statesman. Steve further informed me that I just earned a ticket to visit the Laurel mansion in Shaw Blvd. in Mandaluyong. I could not believe what I have just read. And so, my slightly filled calendar for the month was all suddenly marked as cancelled, as if always welcoming a new reminder: VISIT TO THE LAURELS. And so, the day did actually came.

First stop was the historic mansion built by the “Grand old man from Batangas,” Jose P. Laurel. I was told that some of the most important political decisions, be it affecting the country or Batangas, were made within the confines of the mansion. As we were approaching the main entrance of the compound, I could see an imposing 15-foot tall gate with an arbor inscribed words on top of it which reads, “Villa Paciencia.” Old balete and royal palm trees, bare witnesses to the stories of the past surround the rustic mansion. Steve then escorted me inside the mansion where supporters of Nacionalista presidential candidate were holding a luncheon meeting. At our designated table, I was surrounded by Manny Villar’s high school classmates. These not so old fellows entertained me in so many ways. Their insights on politics, business and life in general made me forget the unfamiliar and not so comfortable moment I had. They rescued me from social vultures. (By the way, I love talking to older people on social gatherings which happens not too often.)

Sitting on the left side of our table was Lorenzo Diaz Laurel, son of Doy Laurel. Larry, as friends would call him, has certainly the looks and the beguiling smile of his old man. After a brief introduction from Steve, Larry whispered to me and said, “Brod, thank you for the kind words you said about my dad.” To which I replied almost stuttering, “Oh no Larry, the Filipino people should thank your dad. We owe him a lot.” Larry nodded with a smile. Honestly, I was about to really get emotional by then. I felt Doy was the one talking to me in the person of Larry. That specific moment, I would like to believe that it was destiny taking its course. And after getting a signal from Steve, telling me it is time to go, I know it was the moment I have been waiting all day. I took no time to bid goodbye to my new found friends and let go of my brewed coffee.

Doy Laurel’s house is not far from “Villa Pacencia.” Unmindful of the endless chitchat of Larry, Steve and Miriam, this stranger was busy savoring the every little step towards what I really came for that day. And it was not too long till I found myself standing in front of the house…in flesh and bone. As soon as I stepped on the footsteps of the door, I began to imagine the faces of key political players who were Doy’s frequent visitors in this mansion. The moment I touched the door knob, I wondered if Ferdinand Marcos too touched it. My mind was really in a full circle. All these and more running in my head, I wasted no time and asked Steve to take me to Doy’s study room, as in now na! Steve, like an obedient soldier, immediately complied. Believe me, the crisp study room is far more beautiful than what you see in Doy’s official website. The pictures and paintings accentuate the wide collection of Doy. There, his book collection. I was nailed for a while. I could still not believe all of these are happening. As a book enthusiast myself, I was practically overwhelmed by his collection. His wide variety of interest undoubtedly depicts the legal scholar that he was. I saw a handful of hard-to-find Filipiniana books in his collection like Mijares’ Conjugal Dictatorship, Burton’s Impossible Dream, Ninoy Aquino’s Testament from the Prison Cell and a host of others. As I observed the entire room, it made me remember a remarkable passage from Doy’s book that struck me up to this very day as unbelievable. To all those uninformed, it was in that very room where Doy asked Cory if she intends to run for the presidency for the upcoming snap elections. Cory, as history has recorded, refused to give a definite answer. Days later, Cory eventually announced her decision to challenge President Marcos. Soon negotiations were in progress coming from both camps. Cory would sometimes deploy her emissaries to convince Doy to slide down in order to have a solid opposition. Doy’s study room, far from the prying eyes of the public, has been a living witness to all these events. If only the walls could talk as they say, history would have changed its course. I was practically in the midst of picturing all these events when Larry pulled me back to present. It was easy to pull me back…simple words such as “I saw it all.” Being the unofficial liason officer of his father during those trying times, Larry threshed out answers for the questions which are completely left out by fence sitting scholars of history. Candidly, the scenario is more like a documentary video where I get to play the role of Probe’s Che-che Lazaro, the male version, I suppose. And I would entitle said documentary, EDSA Betrayed!

Overwhelming the stories are, I, out of desperation, uttered, “Sana buhay pa si sir Doy.” Steve suddenly made a gesture pointing to a huge ancestral-type jar displayed near the window. Yes, it was Doy’s final destination…the urn which homes the ashes of the honorable statesman who could have been the 11th President of the Republic. Realizing that I was standing right in front of a great Filipino who brought a new understanding to the words, “Ang Bayan Higit sa Lahat.” Inside that urn, I said to myself, lay the remains of a man who, like his great father, lived his life for the sake of his country and his people.

I left the study room with my spirit overflowing with a new sense of patriotism. Friends have encouraged me to make money out of my writings. Or try to submit my articles in newspapers so that I may be able to gain proper recognition. Now I say to them, is this not a proper recognition? Certainly, I think it is, at least by my standards.

I was about to call it a day when I was informed that Madame Celia wishes to see me. Handing me the pre-signed coffee-table biographical book of her late husband which she wrote, was indeed icing on the cake! She wrote: To dear Chris, best wishes…I know Doy will want you to have this book. It was too much, way too much. The experience was already too unbearable for this humble follower of her husband. And so I thought, ok Pey, end of your dream. Go home. But before reality even bit me, I was lured to utopia again when I heard Madame Celia asked Steve to accompany me to the archive. At the end of the day, while going back to my reality, I was embracing seven books authored by no less than Doy Laurel himself. I walked out of Doy's mansion having more pride in myself than ever before. Thank you, Steve, Larry and Madame Celia… till we meet again.

Featured Article: Cellphones as close container in search and seizure analysis

This month, Discourses of a Free Mind will be featuring a timely article on the constitutional right of individuals against illegal searches and seizure. Usually hailed as highly technical and legal, the issue on searches and seizure has recently tapped a medium we all can relate to and we all should be aware of-cellphones. Albeit what is being discussed in this article is a landmark American case, time and again the Philippine Supreme Court has, in numerous occasions, relied on American Supreme Court decisions when it comes to constitutional issues. Ergo, the need to fully examine the ramifications on the controversial case of State v. Smith.

The author, my brother, Atty. Ernani Diaz Bonoan is a partner of the Rebolos, Sanchez & Bonoan Law Office in Cagayan de Oro City.

The decision of the Supreme Court of Ohio in State v. Smith (Slip Opinion No. 2009-Ohio-6426) brings to the fore the issue whether the search and seizure clause of the American Constitution (Fourth Amendment) prohibits the warrantless search of data found in a cell phone when the phone is lawfully seized incident to an arrest. Considering that our own search and seizure clause (Article III, Section 2 of the 1987 Constitution) is rooted in American constitution law and our penchant for mobile phones, State v. Smith deserves consideration.

The factual antecedent reveals that a certain Wendy Thomas Northern was transported to Miami Valley Hospital after a reported drug overdose. After questioning by the police, Northern then agreed to call her drug dealer, whom she identified as, Antwaun Smith, to arrange for the purchase of crack cocaine at her (Northern) residence. Consequently the Smith was arrested at Northern’s residence. During the arrest, police searched Smith and found a cell phone on his person. The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. While the record does not show when the police first searched Smith’s cell phone, it was however discovered that the call records and phone numbers confirmed that Smith’s cell phone had been used to speak with Northern. There was testimony that at least a portion of the search took place when officers returned to the police station and were booking into evidence the items seized from the crime scene. The police did not have either a warrant or Smith’s consent to search the phone.

Smith moved to suppress, objecting to the warrantless search of his cell phone. Relying on United States v. Finley ([C.A.5, 2007], 477 F. 3d 250.), the trial court denied Smith’s motion on the ground that cell phones were akin to closed containers found on an arrestee’s person and subject to search for the preservation of evidence for use at trial. Eventually Smith was convicted of trafficking cocaine, possession of criminal tools and tampering of evidence. Smith appealed arguing, inter alia, that the trial court had erred in refusing to suppress the evidence found on his cell phone. Unfortunately for Smith, the appellate court overruled the assignment of error, holding that the trial court had not erred in refusing to grant the motion to suppress.

The Supreme Court of Ohio upheld Smith and reversed the rulings of the trial court and court of appeals. In approaching the issue, the Court initially laid down the settled rule that searches conducted without a warrant are per se unreasonable, subject to certain “jealously and carefully drawn” exceptions. And one of those “jealously and carefully dawn” exception is the search incident to arrest, which allows officers to conduct a search an arrestee’s person and the area within the arrestee’s immediate control. Hence search of arrestee’s purse, shoulder bag, any container or any article in his person was considered reasonable. The raison d'être for the said exception derives from interests in officer safety and evidence preservation. Worth noting here is the pronouncement that these searches need not necessarily be conducted at the moment of arrest. The search can be conducted later when the arrestee arrives at the place of detention. The Court was however quick to caution that when the interests in officer safety and evidence preservation are minimized, this exception no longer applies.

In rejecting the view that a cell phone is akin to a close container the Ohio High Court hammered on the fact that objects falling under the banner of “closed container” have traditionally been physical objects capable of holding other physical objects. Since a cell phone does not contain physical objects or capable of holding other physical objects, then it cannot be considered a closed container for purposes of search and seizure analysis. Moreover, modern trend in search and seizure scrutiny recognize that it serves to protect an individual's subjective expectation of privacy if that expectation is reasonable and justifiable. The Supreme Court of Ohio proceeded and said:

Given their unique nature as multifunctional tools, cell phones defy easy categorization. On one hand, they contain digital address books very much akin to traditional address books carried on the person, which are entitled to a lower expectation of privacy in a search incident to an arrest. On the other hand, they have the ability to transmit large amounts of data in various forms, likening them to laptop computers, which are entitled to a higher expectation of privacy.

But cell phones are neither address books nor laptop computers. They are more intricate and multifunctional than traditional address books, yet they are still, in essence, phones, which makes them distinguishable from laptop computers. Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.

So, in view of the so called “reasonable expectation of privacy” standard, there can be no valid search in a cell phone’s contents unless a judicial warrant is obtained.

While Smith can be considered enlightening in resolving search and seizure issue in this jurisdiction, its relevance is somewhat doubtful in view of the acceptability of the reasonable expectation of privacy standard in Philippine constitutional law.

NEWS FLASH: Launching of Vice President Doy Laurel's Official Website

To mark the 6th death anniversary of former Vice-President Salvador “Doy” Laurel, on January 27, his official website will be formally launched. It is dedicated to the youth of the land in fulfillment of his fervent desire to impart to them the legacy of a proud history. He once wrote:

“History belongs to the youth, the largest and most idealistic and
energetic segment of our population.”

“If I were to summarize the forces that brought about the birth of this nation, I would readily
attribute it to the freedom fighters and the visionaries who were all young. It
was the idealism, the daring, the pugnacity, the determination and the genius
of Rizal, Bonifacio, Gregorio del Pilar and the legions of young
heroes that brought forth the emergence of our nation a hundred years ago.

“A nation is only as strong or as weak as the memory of its people as
to who they are, where they came from, and what their forebears stood for and
fought for. If the history of a nation is blurred or vague, we cannot expect
our people to fight in defense of the motherland when she is threatened. They
may even decide to abandon it and begin anew.

“But if, like a lambent flame, we are able to keep the pride, the spirit, the love,
the vision and the memory steadily burning in the hearts of our people for the
next one hundred years, then our generation would have fulfilled its task.”

Unfolding via a medium cognizable by a sector which may not have been born
at the time of his glorious political flight, the website will give us the
opportunity to know the statesman, his life, his advocacies, his faith in our
people, his love for the country and his great belief in the Filipino youth. It
celebrates the life of a man who could have been the 11th President of the Republic.

Visit his official website at www.doylaurel.com.

Reviewing the Record

What better way to jump start the new year but with a thunderous bang! Once again, New Year’s resolutions are being carved in stones almost dogmatically but only to break it in the middle of the year or even less. But let us be optimistic and hopeful as the New Year begins. Conventional wisdom tells us that as the New Year is coming we must show eagerness to welcome it as a sign of hope that better things are yet to come. Perhaps, even better than the year that is ending. And so while I was slowly eased into waiting mode, I had the occasion to look back at the year that was. Amidst all the ups and downs in my life, little did I know that 2009 was indeed a great year for me. Albeit the first six months were undeniably wobbly and uncertain, thank god it culminated with a positive swagger. I learned so much about myself because of recurring failures, broken promises, wasted relationships and so on ad nauseam. Above all this however, I became a more responsible citizen of this nation. I learned to stand by my principles and to go up against the most unpopular views on nationhood. The point I wish emphasize is this: No matter what your personal disappointments and triumphs are, did you ever ponder, even just for a second to assess your contributions as a citizen of this nation? If not, then better think about it. It would not be so much of a burden I suppose, to include in your list a revered vow to become a much better citizen this year.

Very well then, as 2010 begins, I would like to review the record by summing up some of my writings, thoughts and ideals in the year that was. I would like to believe, and I hope you will not find this as something like a “holier than thou” stance, that through my writings I was able fulfill my mission. I have written a total of 20 time-consuming essays for the year 2009 mostly covering legal and political subjects. Each and every essay has its unique touch, and relatively represents my mind-set for that day.

The Constitutional Discourses

If there is one thing which separates the Arroyo administration from post-Marcos presidencies is the way it trivializes the provisions of the 1987 Constitution. Candidly, even a freshman law student would not think twice in criticizing Arroyo’s constitutional blunders which happens almost incessantly. Constitutional change has always been a recurring theme ever since the birth of the 1987 Constitution. The disagreement does not come from the wisdom on whether the 1987 Constitution should in fact be revised or amended but, the question usually pertains to the manner on how to effect such changes. Take for instance the issue on “initiative” as a mode to propose amendments to the Constitution. Twice, the Supreme Court struck it down first, during the Ramos administration and later under the present administration. To educate the readers as to what “people’s initiative” is, I instantly buckled down to business so to speak and wrote Amending the Constitution: Revisiting the Lambino Case. Unperturbed with the proscriptions of the court, Malacanang decided to take another route to change the 1987 Constitution, this time through a constituent assembly. Thus, in my essay entitled It Takes Two to Cha-cha, the issue in this controversy pertains to the convening of a constitutional assembly as a mode to propose amendments to the 1987 Constitution. As what happened, the House to the exclusion of the Senate, unilaterally passed House Resolution 1109 solely declaring Congress as a constitutional assembly. Thus, ready to propose amendments to the Constitution. The question I must admit is really a tough one. With no judicial precedent to back you up, nor a law textbook dealing with the very issue of constituent assembly, one could never know how to systematically unpack the arguments set forth by the proponents of that resolution. Faced with this dilemma, I began my theory by echoing Fr. Bernas’ opinion from there I applied a bit of logic, and rules on constitutional interpretations to support my theory. If you will notice, lawyers and laymen alike took time to comment on that essay. Some of them agreed in toto, some offered their own interpretation while others just simply praised the author for the efforts. Because of these overwhelming reactions from the readers, I found it necessary to amplify certain issues which were left out owing to the complexity of the questions involved. Thus in the essay More the Stupidity of HR 1109 the author painstakingly attempted to persuade the reader by taking the historical route to justify his arguments-separate session but voting separately. Later on as the issue heats up, my article landed in some blogs and websites of concerned Filipinos abroad who like me, saw the need to inform the public on the evils of HR 1109. We did our part and soon HR 1109 went straight to the trash can well, at least for now.

I also had the opportunity to discuss the legal implications of Martial Law in my blog entry entitled The Power That Lies in the Little Girl’s Hands and later following the Maguindanao massacre, The Clutches of Martial Law. In both writings, I talked about the constitutional fences built upon to limit the President’s power when acting as the Commander-in-chief under a state of martial law. Because of the so-called “hang-over” perception from the Marcos regime as to what martial law is in essence, I attempted to appease the readers about its original meaning, or as understood by the framers of the 1987 Constitution when they deliberated on the martial law provision under the 1987 Constitution. In the recent Maguindanao situation, I disagreed with the Malacanang's decision to use martial law to quell the alleged "rebellion" not only because the situation fails to comply with the constitutional standards, more so the motive is highly suspect. And to those who often found themselves unaware about the legal remedies surrounding a martial law declaration, I have also offered the following essays The Writ of Amparo and The Writ of Habeas Corpus. I was elated when some of the readers appreciated my efforts and commented on various occasions.

The Political Discourses

If there is one appalling comment which infuriated my journalistic sensibilities is the one coming from a person who mistakenly calls himself a Liberal or maybe not. At the height of Noy Aquino mania and following President Cory Aquino’s celebrated funeral, I felt the need to write something objectively instead of joining the circus. And so in Liberal Party for President, I warned the readers that ours is a political culture tightly woven on populist platforms rather than principles. While admittedly I admire Noy Aquino’s character, I have serious doubts however on his ability to run the country if elected as President. To be sure, my doubts are well grounded. For one, Noy Aquino has a poor legislative track record. I barely see him on TV discussing controversial issues affecting the government and the people. But this is where Mr. Liberal decides to unleash his fury on me when I said, “Unlike his father, Senator Noy Aquino is a man of unquestionable character and motive to run for the presidency.” Like a speeding bullet, Mr. Liberal hit me with a scornful remark, “…you are so UNFILIPINO.” Wow, that sure tugged at my patriotic-strings. And as to the persistent question on whether clergymen could run and sit in public office, I offered my legal analysis in Among Ed and the State, saying that there is no express constitutional prohibition against it.

We all have our heroes that inspire us to do greatness, in our best definition of what greatness is of course. Unfortunately, my heroes belong to a different kind of category in our political history. I must say that in this respect, I prefer to take the “road less traveled.” My first venture was the essay entitled Me and Ferdinand Marcos. Obviously, the point I wish to make in that essay is that my patriotism, or love for one’s country emanated from no less than Ferdinand Marcos. My decision to take up law was partly because of him and so is my passion for writing. Most people could never understand, not in my lifetime I suppose, but I believe in his sense of patriotism. So is the late Salvador H. Laurel. My biographical essay The Honorable Doy Laurel not only seeks to tell Doy’s side of the story but to expose what really happened during the EDSA revolution. I believe I was able to deliver the story with precision and tact.(Modest aside, Madame Celia Diaz-Laurel, widow of the late Vice President Doy Laurel, considered my essay as fairly accurate. see: "Ang Bayan Higit sa Lahat" a.k.a The Honorable Doy Laurel: http://www.doylaurel.com)

Miscellaneous

Some readers faulted me for being too serious with my write-ups and advised me to lighten up a bit. In response to their request I wrote a poignant short story, my story actually, about friendship which transcends time and space all because for the love of music. Thus, My Ever Present Past article received considerable attention mostly from readers who belong to the genre of 90s music. Others however were also enlightened about the story, probably because it was far from my predictable writing style-not the “boring stuff” to quote a friend. Later on, I also wrote A Political First, a memento of my own unforgettable experiences as a fledgling student leader back in college. For personal reason, these articles were my constant favorites because I get to travel down the memory lane at anytime of the day, even without the benefit of a time machine.

In the philosophical side, heavily influenced from the writings of renowned Christian thinker Dr.Ravi Zacharias, I ventured to defend the Christian worldview against the impact of secularism in Some Thoughts on Morality and Is there a God. Previously though, I also shared my existential journey as a believer in Why I Am Still A Christian.

For about a year and a half, Discourses of a free mind has been consistent with its views on controversial issues involving the interplay of government and its subjects. I am glad that despite its shortcomings and quite a few oversights, this blog site has started to gain local recognition from various sectors of society. Kudos to Discourses of a Free Mind!

Happy New Year everyone!!!

To the beautiful Ms. Denise Laurel

Ms. Denise Laurel, or someone commenting on her behalf made the following corrections on my blog entry The Honorable Doy Laurel viz;

Hello Mr. Bonoan, I read your blog through a friend a few minutes ago and although it is all of three months late, thank you for the kind words about my Papa Doy. However, please allow me to correct your information on the question that was asked during the game show. The question was asked about the year when my grandfather was Vice-President of the Aquino Administration and not WHO was the vice president of that term. Please review the footage carefully, instead of using me as a foil to make your point. I believe your guest Cielo needs to be sure about the facts before offering her comments.

I do not intend to make this as an erratum. I am torn between being an online journalist who should stand by his words and a gentleman who should concede to a lady. But I am more oriented towards my courteous inclinations. Moreover, as already blurted out, it has been three months since this specific episode was shown and my short memory does not serve me well to exactly recall what the actual question was. Nor do I have means to verify what I believe I have heard and watched that particular day. Nevertheless, these considerations are no longer necessary as what I have mentioned in the beginning, my polite leanings urge me to accept Miss Denise Laurel’s version of the story. To besmirch a Laurel, is not one of my intentions. Rather, I only wished to magnify the political prowess and career of one great man and that is, Miss Denise’s Papa Doy.

However, as I am sincerely extending my apologies to Miss Laurel, as an on-line journalist that I am, I am not letting this chance to discuss her latter assertions in her comment which are highly technical and legal. To quote, she wrote:

“The reason why I hesitated to answer the question on the date of his being a vice president was because there had been a bit of discussion on when he assumed the vice presidency. Some quarters say that he won as vice president during the snap elections against Tolentino and therefore should have been proclaimed prior to EDSA I. Others say that the revolutionary government which was proclaimed after Marcos left the country for Honolulu was the date to determine his assumption. And of course there is the oath taking ceremony. To date, the debate goes on. I hope this gives you a little more insight on who Denise Laurel is.”

As a fervent student of the law, I believe that this confusion had been finally settled in the case of Lawyers League v. Aquino (May 22, 1986) wherein the Supreme Court ruled that the Aquino government is revolutionary in nature. (see also Estrada v. Arroyo) Therefore, the oath taking which took place at the Club Filipino on February 25, 1986 serves as the reckoning period for the Aquino administration. (Be it noted that while Cory-Doy run as President and VP respectively under the auspices of the 1973 Constitution, they finished the race outside of it.)

I hope this misunderstanding will not in any way affect present or future relations with the Laurel family which I hold in high esteem.


NB: visit VP Doy Laurel's official website. Thank you to the Laurel Family for posting my blog entry.

The Clutches of Martial Law

It has been more than a month or so since my last entry in this site which, owing to the nature of my chosen endeavor I have no choice but to overhaul my priorities all over again. I hate to admit but for the past few months I was largely preoccupied with personal cobwebs or what I call the “viruses of the mind” which prevented me from doing what I love to do best. And so first things first, deliberately, I expunge it out of my system-good riddance as they say! Anyway, since then so many critical issues, be it legal or political, have been the center stage of coffee table and classroom discussions. I must say that during my “self-imposed interregnum”, every time an issue pops up, I always felt the sudden itch to express my ideas and write something about it. But as soon as I sat down and put my hands on the computer, the piles of documents in my bedroom seemed to say that earning a living should be on the top of my list. In simple terms, blogging then should step aside even on Sundays. As trite as it may seem, but for every rule there is always an exception. Today, I will break my fast and avail myself of the much needed excuse from my daily routine. Unfortunately the pile of documents and reading materials will have to wait for an hour or two otherwise I would be in a limbo by tomorrow. Obviously, the declaration of martial law in some parts of Maguindanao requires more than a succinct “shoutout” in my facebook account. This is where I suppose, the medium of blogging finds superiority over social networking sites in terms of meaningful and well-informed opinion. Clearly it entails a lengthy and incisive discussion on the issue for it concerns more that anything else, the curtailment of cherished liberties so protected by the constitution. Not to be presumptuous or anything, but constitutional and political issues are among the areas which I find very fascinating because it touches the very core of what it is like to be a citizen of a nation. Let us now educate ourselves on the constitutional underpinnings of the martial law declaration following the gruesome massacre in Maguindanao.

Not all people can readily understand what the essence of martial law is nor its ramifications and safeguards under the constitution. Chances are, people from different walks of life deemed martial law as synonymous to the name of President Ferdinand Marcos. In fact as evidenced of a “hangover” even lawyers, the senior ones in particular, understood the concept of martial law in line with rules under the 1973 (Marcos] Constitution. Although the traditional concepts under the previous constitutions are one and the same, the present rules under the 1987 Constitution have been improved and crafted to strike a proper balance between two competing spheres, state power and individual rights. (i.e. Can the President suspend the writ of habeas corpus without the declaration of martial law? Or vice versa. More on the checks and balances later.) Luckily as a law student, I came to know martial law as one of the extraordinary powers vested in the Commander-in-chief of the armed forces, in which case the President, to quell actual invasion or rebellion “when the public safety requires it.” But what is martial law really? What is its nature and bases on the whole constitutional scheme? In my blog post entitled, The Power that lies in the Little Girl’s Hands, I made the following observation,” Martial law is essentially founded upon the police power of the state. Joking aside, what is being referred to here is not the power vested with the police force or the PNP. Obviously, this has something to do with one of the inherent powers of the state. To be clear, the textual definition of police power is that, “power vested in the legislature by the constitution to make and establish all manner of wholesome and reasonable laws…as they shall be the judge to be for the good and welfare of the state and of the subjects of the same.” The idea of martial law is to protect “public safety” against invasion or rebellion which in essence, is one of the concerns of police power. For these reasons, though martial law is often viewed as a monstrous power to be avoided, it likewise has its noble and necessary objectives to preserve law and order. Having learned from the lessons of history, the framers thought it wise to retain this power under the 1987 Constitution, but not without expressed restrictions and safeguards unlike the previous constitutions.

The salient provision on the “Commander-chief-powers” of the President is excessively long. Without a doubt, the new commander-in-chief provision is one of the outstanding features of the 1987 Constitution. Under said provision, while the original authority to declare martial law rest on the Executive branch, there is however an explicit command for checks and balances to achieve the desired result. As will be seen later, the Congress and the Supreme Court have significant roles to play when the nation is under the clutches of martial rule.

The power to declare martial law flows from the “Commander-in-chief” powers of the president. By virtue of Section 18 of Article VII of the 1987 Constitution, the president is bestowed with a sequence of graduated powers from the most to the least benign. The most benign power refers to the “Calling-out power” of the President. Thus, “whenever it becomes necessary” he (President) may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. But what will happen if in the exercise of the “Calling-out power” the President fails to suppress the existence of lawless violence or prevent an impending invasion or rebellion? Faced with this kind of situation, the President can now resort to the least benign powers in his commander-in-chief arsenal to quell any actual invasion or rebellion against the state.

These two extraordinary powers are; (1) the power to suspend the privilege of the writ of habeas corpus or (2) place the entire country or any part thereof under martial law. Unlike the “calling-out power,” the grounds for the proclamation of martial law are at best limited. Thus, the constitution is unequivocal when it states that, there must be an actual invasion or rebellion and “when the public safety requires it.” The initial determination whether there is an actual invasion or rebellion will have to be decided by the President as the Commander-in-chief. But the story does not end there. After the proclamation, the President will now have to persuade Congress on the soundness of his actions. At this point, the 1987 Constitution clearly delineates the participation of Congress to check on the possible abuses of power by the chief executive when acting as Commander-in-chief.

As mentioned earlier, the new commander-in-chief provision under the 1987 Constitution is quite long. Nonetheless let us capture the gist on the extent of the President’s military powers, the martial law provision in particular.

After the initial determination on the existence of an actual invasion or rebellion, when the public safety requires it, the President can now place the country or any part thereof under martial law. The duration of such proclamation shall not exceed sixty (60) days otherwise it shall be automatically lifted. Within forty-eight (48) hours following said proclamation, the President is obligated to submit a report, whether in person or in writing, to the Congress. If not in session, owing to the urgency of the situation, Congress must convene within 24 hours without need of a call. And in that regular or special session, Congress by a majority vote of all its members and voting jointly, may either revoke said proclamation or upon the initiative of the President, extend the period of the proclamation. By this time, it is Congress who will determine the duration of the proclamation depending on the persistence of the invasion or rebellion and when public safety calls for such extension.

From the wordings of the 1987 Constitution you can easily discern the intent of the framers when they drafted the Commander-in-chief provision-a recognition of the separation of powers principle. Both the President and Congress must agree to a certain extent that there is indeed a factual basis for the declaration of martial law. To which, as may be seen later, the Supreme Court in the exercise of judicial review can validly inquire and if found wanting, it will not hesitate to make the hammer fall and heavily! If you will observe, although the President has the sole power to declare martial law under the constitution, Congress may revoke said proclamation and it cannot be set aside by the President. In the same manner, Congress cannot extend the period of martial law motu propio, the initiative must always come from the President as the Commander-in-chief. In simple parlance, there is an inherent “give and take” relationship between the two co-equal departments of government in order to safeguard the power structure envisioned in the constitution.

Given the above discussion, in the end the buck stops with the Judicial branch mainly, the Supreme Court. Let us examine then the function of the Supreme Court under the new rule.

On historical note, Marcos Supreme Court in the case of Aquino v. Enrile had put an imprimatur on the legitimacy of the Sept. 21 proclamation. That infamous case drastically modified the original scope and effects of martial law as embodied in the 1935 Constitution. Now, all of these are purely of historical and academic value because of the new provisions in the 1987 Constitution abandoning the doctrine laid down in the Aquino case

As the bastion of the rights and liberties of the people, the Supreme Court also has an indispensable role especially in times of national crisis. Par. 3 of Section 18 Article 7 of the 1987 Constitution says, “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty (30) days from its filing.” Before the birth of the 1987 Constitution, the power of the court to review the “determination” or “judgment” of the President as Commander-in-chief was a constitutional “no-no”-a clear violation of the time-honored principle of separation of powers. It is often viewed as a forbidden territory of the courts. Now this is no longer the rule. Although traditionally a “political question,” the 1987 Constitution has clearly abandoned this rule in favor of a much libertarian approach by making it a justiciable controversy. Hence, any citizen can now question the sufficiency of the factual basis of the martial law proclamation.

It should be borne in mind that mere proclamation of martial law does not automatically suspend the privilege of the writ of habeas corpus much less the operation of the constitution. During the state of martial law, civil courts and legislative bodies shall remain open. In line with this, military courts and agencies are not conferred jurisdiction over civilians where the civil courts are functioning. The suspension of the privilege of the writ of habeas corpus shall only apply to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. Remarkably, any person arrested for such offenses must be judicially charged within three (3) days otherwise he shall be released.

Tomorrow we will be expecting petitions filed before the Supreme Court questioning the legality of GMA’s martial law declaration in Maguindanao. I surmise that the petitions will challenge the factual bases for the imposition. Simply put, does the situation in Maguindanao constitute “invasion” or “rebellion” which will warrant the suspension of the privilege of the writ of habeas corpus and the imposition of martial law? From the looks of it the situation in Maguindanao could only fall within the definition of “lawless violence,” which is not among the situations contemplated for declaring martial law under the Constitution. Note that the martial law provision clearly states, “In case of invasion, or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.” As explained above, the President is armed with a sequence of graduated powers from his Commander-in-chief arsenal. Although initially the President makes the determination as to the existence of lawless violence, invasion or rebellion, the Supreme Court in proper cases can invalidate the imposition. Fingers crossed for now!