MANILA, Philippines - At least 4 magistrates believe that the petitions seeking to void the declaration of martial law in Maguindanao should not be declared moot despite Malacañang’s move to lift it last Saturday, Supreme Court (SC) sources said.

In last Tuesday’s en banc, the High Court did not issue a temporary restraining order (TRO) on Proclamation 1959, but ordered government to refute the petitions.

The sources said the declaration of martial law, and the succeeding raids and arrests of suspects in the murder of 57 innocent civilians last November 23, has legal consequences that the Tribunal cannot simply ignore.

It was learned from the SC sources that no search order and no warrants of arrests were sought by the military in carrying out their operations after martial law was imposed last December 5.

Under a state of martial law as defined in the 1987 Constitution, only the writ of habeas corpus is suspended, which means the military can conduct arrests without warrants. Those arrested, however, should be charged in court within three days.

Under martial rule, search and seizure orders still have to be covered by court orders.
 
In connection with the Maguindanao massacre, the SC sources said the courts only issued six search warrants, and these were before martial law was imposed.

Succeeding raids and evidence seized apparently were not covered by search warrants. This has led to fears that the evidence gathered against the Ampatuan clan, who is suspected to be behind the Maguindanao massacre, would be declared inadmissible in court.

Those detained could question their arrests as illegal, and these petitions are likely to reach the Supreme Court.

“Those searched and arrested without warrants can file new petitions to declare arrests and searches void. The SC cannot avoid deciding these cases,” an SC source said.

Minority want to proceed

However, those inclined to proceed with oral arguments on Proclamation 1959 are the minority, given the present dynamics in the SC. All justices, except Chief Justice Reynato Puno, are appointees of President Arroyo.

One source said the lifting of martial law was "the way out for those allied with Arroyo” to avoid a potential situation where they will have to agree with Malacañang and embarrass themselves, or embarrass Malacañang by declaring martial law unconstitutional.

With the lifting of martial law, the SC source expects those allied with Arroyo to "vote to declare all petitions moot" since "they are the majority.”

The SC is scheduled to deliberate whether to hold court hearings on the oral arguments, or dismiss the petitions in Tuesday’s (December 15) en banc.

Asked why the SC did not issue a TRO on martial law, the source explained that the Tribunal “defers to the State in security matters."

"If rebellion really existed then, we don’t want to stop the government from quelling it," the source said.

Salonga et al urge SC to rule

Meanwhile, critics of the administration believe that the lifting of martial law in Maguindanao was a move to preempt the Supreme Court from hearing the oral arguments and tackling the unconstitutionality of the measure.

A motion was filed Monday by a group led by former Senate President Jovito Salonga urging the High Court to rule on the martial law case despite its lifting last Saturday.

Salonga said “there is a high probability” that President Arroyo will again impose martial law in Maguindanao or in Mindanao “due to a perceived notion of looming rebellion.”

Petitioners against the martial law declaration argue it violates the Constitution. Under the 1987 Charter, martial law can only be imposed if there is invasion or actual rebellion.

SC still ruled on 2 cases

If the SC rules the petitions on martial law moot and academic, it will mean a different stance from that taken by the High Court with regard to two previous petitions questioning President Arroyo's controversial decrees.

The first is David vs. Arroyo, which tackled the constitutionality of Presidential Proclamation (PP) 1017 issued at the height of the ouster moves against Mrs. Arroyo in 2006.

The justices ruled PP 1017 was constitutional, but struck down the arrest of columnist Randy David and  other individuals. It also ruled that the order for the military to enforce laws not related to lawless violence was unconstitutional.

The second case is the SC ruling on the controversial Memorandum of Agreement on Ancestral Domain (MOA-AD). Even if the government had withdrawn the proposed agreement with the Moro Islamic Liberation Front (MILF) while the case was still pending, the SC still decided by a close vote to declare it unconstitutional.

Seven justices voted to declare it moot and academic, but they were thwarted by a slim majority of eight.