MANILA, Philippines - The declaration of martial law in Maguindanao is, on its face, unconstitutional, a jurist said on Monday, while a Catholic bishop gave his imprimatur to the extraordinary measure.

Former Supreme Court Justice Vicente Mendoza, a known constitutionalist, said the imposition of martial law in the province lacked two essential elements, invasion and rebellion, which are the conditions set by the Constitution justifying it.

Mendoza, in a phone interview with abs-cbnnews.com/Newsbreak, observed that there is no invasion nor armed public uprising against the government that necessitated martial law.
 
At the very least, he said what appears to be happening in the province is resistance against government authorities, which is different to rebellion.

“They are guilty of resisting authority but not rebellion,” he said.

Malacañang has justified the imposition of martial law with the supposed breakdown of institutions and the possibility of a “looming rebellion” by forces related with the Ampatuan clan. The Ampatuan clan is largely believed to be behind the brutal killing of at least 57 people, including members of its political rival, the Mangudadatu family in Maguindanao.

“Martial law is premised when there is invasion or rebellion,” he said. There must also be actual rebellion that provides for an “imminent danger.”

“You have to wait for the actual public uprising. Here, there is none,” he said.

Quevedo: 'The shorter, the better'

Meanwhile, former Catholic Bishops’ Conference of the Philippines (CBCP) and Cotabato Archbishop Oscar Quevedo favors the imposition of martial law given the “complex” situation in Maguindanao.

“The complexity and abnormality of the situation and the need for swift justice for 57 brutally massacred innocent civilians would dictate an extraordinary measure. Since martial law has been declared, let it be. Let the lawyers debate it. I pray that martial law resolve the abnormal situation and deal swift justice for the victims,” Quevedo said in a statement.

Quevedo said the peace and justice situation in Mindanao is “very complex,” noting that arms proliferation, liquidation, kidnappings, and  "rido" (clan wars) between political clans have become the ways of life there.

He observed that “media and politicians from far away Manila do not seem to be familiar with these social, political and cultural situation….(as) they seem to think that the police and the military can easily go into an area and just arrest the suspected culprits.”

However, Quevedo said martial law should be a temporary measure, only for a decisive resolution of the problems in Maguindanao. “Once it is no longer necessary, it must immediately cease. The shorter time the better. This is because of the double-edged nature of martial law.”

Excesses and dangers

Mendoza also warned against the excesses and dangers of martial rule.

He said martial law is “like the sword of Damocles” that could endanger civil liberties if abused. Moreover, “courts will rarely question any action by the military if they say it is necessary to restore order,” Mendoza observed.

While there appears no sign yet that martial rule in Maguindanao has been taken to the extreme, where the media has been taken over and movement have been curtailed, “just because they are not doing it does not mean they could not do it.”

“The danger is not the possibility of the sword of Damocles hanging, but the possibility that it might fall,” he said.

Mendoza said military actions are still guided by the “public safety test.”  He said military actions under martial law are justified only when public safety calls for it.

Asked whether the case against Ampatuans may change from a common crime of murder to rebellion now that martial law has been imposed, Mendoza said the Ampatuans may face both charges at the same time.

From common to political crime

Liberal Party Florencio “Butch” Abad, in a statement, warned the declaration of martial law is just a scheme “to elevate the status of the Ampatuans as rebels” and change the character of their alleged crime “from purely a criminal one (multiple murder and conspiracy to commit murder)… to a political one.”

Abad noted that in multiple murder and conspiracy to commit murder, the penalty is life imprisonment while in a rebellion case, the maximum penalty is 12 years. “Further, the rebels may apply for and be given amnesty,” Abad said.

But Mendoza said the Ampatuans could be charged separately with rebellion and multiple murder, without the latter necessarily being subsumed under the former.