Liveblogging the Joint Session of Congress on Martial Law

(For a backgrounder see my entry Martial Law konfrontasi.)

4:08 PM

Ricky Carandang reports quorums exist and joint session will begin shortly. Expected to last until 9 PM with continuation tomorrow. Each chamber will have 10 hours alloted for questioning; administration officials will testify as “resource persons.”

4:11 PM

Both maces in their stands, signifying session has begun.

4:14 PM

Kabataan Party List Tweets “opening prayer asks for discernment, wisdom on whether or not to revoke martial law, justice for victims of Ampatuan massacre.”

4:17 PM

UP Law Dean Leonen on ANC expresses opinion House members may actually display some independence because it’s an election year. He expects administration officials to supplement President’s report with “new evidence” of rebellion. ANC Alerts Twitter account reports Leonen’s opinion: Rebellion case vs. Ampatuans to continue even if Congress revokes martial law in Maguindanao.

4:19 PM

The Lobbyist Twitter account reports Senate seated to left of rostrum (facing it), House to the right. Senate has quorum. Roll call of House ongoing. 147 votes required to approve/reject martial law.

4:26 PM

Rep. Cuenco quizzing Speaker on rules adopted for joint session. Asking if motion to revoke Proc. 1959 can be amended? Nograles: No. Cuenco: Sixty days or nothing? Nograles: Yes. Rules submitted for adoption; Senate approves. House moves to consider President’s report.

4:29 PM

One minute suspension per House Majority Leader Defensor.

4:31 PM

Session resumes. House and Senate move to include the supplementary report to President’s report. Zubiri moves to suspend session momentarily to allow arrival of President’s representatives.

4:38 PM

Session resumes. Speaker informs body AFP Chief of Staff Victor Ibrado will be late, plane arrives from China later; DND Sec. Gonzales is in Singapore and won’t be appearing until tomorrow. Underlings will substitute for both today. Enrile formally confirms he also received phone calls Speaker mentioned.

4:40 PM

Sen. Roxas is recognized: points out schedule was not secret, joint session moved 24 hours; why can’t Gonzales make it? Enrile says he can’t answer, respectfully suggests Defense Secretary be asked when he appears. Roxas: why not Ermita, since he approves all travel? Enrile asks Ermita to answer. Ermita replies “because of important mission… negotiations between GRP-MILF requiring DND Sec. be accessible for immediate consultation.”

4:43 PM

Camarines Sur Rep. asks why constitutional law authorities haven’t been invited. Speaker says purpose of joint session is “merely” to listen to factual basis for Proc. 1959.

Sen. Gordon: We make history today. First time for a joint session to review factual basis of martial law. This is not a surprise; Constitution is clear Congress must be convened. I feel very disappointed and diminished that Sec. of National Defense who I saw last night in a hotel, and the Chief of Staff will not be here. To my mind if I may be so bold, we are a co-equal branch and we must review, it behooves administrators of martial law to appear before representatives. Their non-appearance suggests government case is weak; their leaving indicates everything under control (proceeds to disquisition on checks and balances). Expresses dismay at executive department’s brushing off Congress.

4:49 PM

Enrile makes soothing comments about Gordon’s speech.

Rep. Dilangalen: Cites Constitutional requirement for President to submit Report; parliamentary inquiry: why is the President not here? This is history. Speaker: the President has substantially complied with Constitutional requirement. Dilangalen: That’s a given matter, does the President not have any courtesy of informing us personally? I ask this because I’m from Maguindanao, Datumanong and I very much affected; considering historical significance of this event, we thought if President declared martial law, we also believe the President should be here and explain to us. Only Datumanong and I can experience what it’s like to represent an area under martial law; she may not consider this important to her? Why is she not here?

Speaker cites rules providing only the appearance of those already sent by chief executive.

4:53 PM

Brief recess to permit representative of Chief of Staff to take his place on the floor. Leonen on ANC bothered by Speaker answering for chief executive when Executive Secretary is there as alter ego of President. Leonen agrees with Dilangalen that President ought to have appeared.

4:58 PM

Session resumes. Secretaries Ermita, Puno, Devanadera, PNP Chief Versoza, Gen. Maclang representing Gen. Ibrado attending.

Sen. Pimentel raises parliamentary inquiry: Reiterates President’s non-attendance; she cannot be compelled, but contends, since no precedents to go by, furnishing copies to legislators is not the report per se? Enrile: President has option to report in person or in writing; she opted to report in writing that “appears to contain facts” enough for deliberations; no grounds to compel President; Constitution precisely accorded her options.

Majority floor leader tries to introduce administration representatives…

Rep. Teddyboy Locsin: parliamentary inquiry. Points out Dilangalen is forum shopping -go to ShoeMart! While Supreme Court will inhibit itself while Congress deliberating; this is appropriate forum. Dilangalen tries to respond, Speaker insists on responding first. Dilangalen: no, Locsin’s statement was preposterous and out of order! Speaker: Dilangalen has every right to speak. Dilangalen: I advise my classmate to read Constitution; why bar me here? I move he be declared out of order. Speaker: Chair has responded. Dilangelen: What about my motion to declare him out of order?

Session suspended.

5:17 PM

Leonen on ANC suggests there may not be a majority to decide question either way; suspensions allow lobbying on sidelines.

5:23 PM

Rep. Palatino Tweets 189 representatives responded to roll call; 70 representatives absent.

5:33 PM

Carandang reports House leadership trying to prevent a vote on motion to declare Locsin out of order; would set precedent to brawls; Dilangalen brought to House lounge to cool off. (I guess this is why Nograles wanted to duck having a joint session at all, he can’t herd cats properly. Enrile must be chuckling.)

Vote calculations per Twitterer gino510: “24 Senators+270 Reps=290 Members provided that all posts are occupied. Majority is 148.”

5:42 PM

Session resumes.Locsin withdraws remarks to avoid offending Dilangalen. Dilangalen grudgingly reiterates why Congress convened: issue is whether or not we will revoke -revoke only!- Proclamation 1959. We are going to make a “political rrrrrrrreview” of whether to support revocation or allow for sixty days. Points out Supreme Court’s role. Locsin erupts: If this continues, I might change my mind!

Session suspended.

5:46 PM

Session restored. House majority leader asks for Maguindanao Rep. to be recognized for “one sentence.” Recognized for “a very brief remark.” Dilangalen tries to be soothing in turn, peace is made. “I forgive you Teddyboy.” Generally hilarity in Congress ensues.

House Majority Leader moves to recognize Sec. Ermita.

Ermita (in folksy uncle style): President issued Proc. 1946 to supress lawlessness in Maguindanao due to Ampatuan Massacre. Accordingly law enforcement agencies were mobilized to apprehend lawless elements involved in massacre. A day after proclamation, witnesses surfaced identifying Andal Ampatuan Jr. as leader of 100 armed men who undertook carnage; hence he was put under government custody and multiple murder charges eventually filed. Arrest of Ampatuan Jr. would have resulted in expeditious apprehension of other suspects but situation proved to the contrary; the Ampatuan group have since used their strength and political position to deprive President of power to enforce law and maintain public order and safety. Proc. 1959 is a faithful exercise of her sacred and prime duty to preserve and defend Constitution, execute laws and do justice to every man. There exists in Maguindanao an armed force whose effect is to prevent government from enforcing laws. PNP will give briefing.

5:54 PM

Roxas requests hard copies of written presentations. Dilly-dallying over secretarial question. Ermita: hard copies will be provided but we need Congressional staff to help in reproduction… Roxas says OK.

5:56 PM

PNP’s Caro poised to give presentation; Rep. Golez interjects that Ermita’s verbal report varies from hard copy; this is supposed to be report by President, for the record, is verbatim authorized by President? Ermita: The report is authorized by President, it will be shown in substance very similar to original report.

5:58 PM

PNP’s Andres Caro, director of operations: Report on prevailing situation in Maguindanao, gruesome murder; actions taken, implementation of Proc. 1959. Background: even before gruesome murder, gubernatorial race expected to be hotly contested by two clans with known rido: Ampatuans and Mangudadatus. Mangudadatu sent his wife, etc. to file candidacy papers; at 10 AM 11/23/09 eight “behikels” were flagged down in a checkpoint manned by members of Maguindanao PNP and CVO’s; thereafter abduction occurred as convoy brought 2.5 KM away from national highway. After receiving information convoy was abducted, 64th IB PA launched rescue op at 11AM, got there 1 PM met PNP official Dikay who said they had no knowledge; acting on information provided by informants, troops proceeded eastwards; about 1:45 PM troops met two men armed with M-16 rifle and shotgun claiming to be CVOs of Ampatuan, taken into custody for interrogation: at about 2PM troops stumbled upon gory crime scene.

At about 3PM Buluan Mayor Mangudadatu on helicopter spotted massacre. (recounts grisly scene). 22 unburied cadavers, 5 vehicles processed at about 8 PM.

(PowerPoint summary of activities presented: 2 CVO’s taken into custody; aerial reconaissance udertaken; crime scene processed)

Day 2: Additional investigators dispatched; grave sites identified. Sketch of relative position of victims presented. PNP and AFP had to bring in fresh troops as existing troops implicated; augmented investigators and forensic scientists because of enormous casualties. President issued Proc. 1949 declaring state of emergency that evening.

Day 3: All permits to carry firearms outside residences, mission orders cancelled; exhumations in gravesites 1, and 2, including unearthing vehicles; disarming of 4 auxiliary companies of Ampatuans; 18 implicated policemen investigated; 21 CAFGU’s taken into custody.

Day 4: Conducted joint operations (AFP-PNP): check points, choke points, patrols and security to vital installations; security details provided in ARMM capitol, office of governor, Maguindanao capitol; various municipal halls. Very important development: arrest of primary suspect Andal Ampatuan Jr. on 11/26/09, subjected to inquest proceedings in General Santos City and then flown to Manila for detention at NBI. Various PNP officials relieved, transferred to Camp Crame for further investigation.

PNP reiterates Ermita’s line verbatim: Arrest of Ampatuan Jr. would have resulted in expeditious apprehension of other suspects but situation proved to the contrary; the Ampatuan group have since used their strength and political position to deprive President of power to enforce law and maintain public order and safety.

Adds: local government offices closed, ranking officials refused to discharge functions. Civil registrar refused to issue death certificates supposedly on orders of Ampatuan, Sr. Judges went on leave, etc. “duly verified information disclosed Ampatuan group was behind closing of offices and simultaneous absence of judges.” Movements of their troops confirmed: estimated over 2,000 armed combatants from various areas in possession of more than 2,000 heavy firearms; Ampatuan group consolidated, with over 1,000 strategically deployed or prepositioned in Maguindanao (cites areas, troops, arms, including armored vehicles). PNP’s Caro consistently refers to Ampatuans and troops as rebels.

(PNP essentially reading the President’s report verbatim)

6:23 PM

PNP’s Caro Rattles off discovered caches of arms. Discovery of bogus markings on vehicles: all confirm rebellion, first, removal allegiance, and depriving chief executive of her powers and prerogatives and ability to maintain public order and safety. While government conducting ongoing operations; public safety still requires martial law and suspension of writ until time such rebellion is completely quelled.

Since martial law imposed Dec. 4: AFP/PNP operations have arrested 64 suspects including Ampatuan Sr., Zaldy Ampatuan and others. To date, arrests and searches in houses of Ampatuan residences, government offices, etc. and disarming of forces resulted in confiscation of 929 assorted weapons and high-powered firearms and 430,000 rounds of ammunition and 4 armored combat vehicles and others painted with official markings. The fact remains Ampatuan clan and followers remains a formidable force that must be confronted head-on by AFP-PNP with full force of law and backing of Congress.

PNP presentation ends.

6:28 PM

House majority leader moves to begin interpollations. Rep. Plaza reiterates request for hard copy of report. Rep. Antonino: for clarity, noticed in presentation, certain acronyms used; can PNP say what CVO for example, mean? Or RAG? Nograles: That shall be answered at the proper time.

Sen. Zubiri moves Sen. Aquino be recognized to begin interpollations. Sen. Roxas asks: Report rendered by PNP official constitutes President’s report in entirety? Enrile: Understanding of Chair is President submitted report to Congress and materials being presented by resource persons are in support of her report. These are evidential matters being presented to establish facts in report of President. Roxas: This is mechanism by means President is rendering report, so utterances of police official is in effect President’s report in writing? Is presentation what was contemplated in Constitution? For chambers to determine what to do relative to martial law, if this is report, then discussions must be circumscribed by contents of report, no new facts can be brought into discussion? Then our discussions will focus only on what Gen. Caro has rendered before chamber.

Enrile: Sec. 18 of Art. VII says if President suspends writ or declares martial rule, the President is required, mandatorily to submit report of that fact to Congress. Now, the Constitution did not define contents; I assume from experience, report requires justification for martial law in Maguindanao; President has to tell members of Congress the factual basis upon which she acted. This is new innovation under present Constitution… We received a copy of this report, more or less general description of facts being presented to this chamber, so the purpose of resource persons is to buttress the report so we will get the, uh, facts, and determine whether indeed the event that justifies martial law, which is, is there rebellion, which can only be justified by narration by events on the ground, whether there was, indeed, a public rising for an objective defined in statute books as rebellion.

Roxas: So precisely, Executive Branch being given opportunity to support whatever was contained in written report, I wish to put on record that the Executive Branch has set forth the elaboration by Gen. Caro.

Enrile: I would liken it to a pleading in a court to detail the facts to spell out the conclusion that indeed there was a rebellion.

Roxas: Caro a stipulation of facts?

Enrile: No, in the nature of evidence; I don’t know if it was proper to have placed him under oath, in fact he was testifying before Congress.

Roxas: What officials doing is to render support for President’s report.

Enrile: Yes.

6:40 PM

Rep. Rufus Rodriguez: Parliamentary inquiry on terms of reference. We have Proc. 1959; then 20 pp. report of President signed by Sec. Ermita, then Ermita’s report different from 20 pp. report; then Caro’s report, then Ermita’s letter deleting paragraph from 20 pp. report; so what is basis of interpolation? Compares Proc. 1959 to Marcos’ Proc. 1081 which detailed basis for proclamation. Government today only alleges possibility of rebellion. What are we to consider?

Nograles: You can interpolate later and ask those questions based on documents available to you and documents being photocopied for distribution. Majority Leader of Senate has already recognized Aquino. Please allow first Senator who has taken the floor to be recognized.

(Representatives keep firing off parliamentary inquiries anyway)

6:45 PM

Aquino: to Puno, to lay predicate for 1st question. Papers quoted Puno as not having agreed to martial law?

Puno: Until situation developed where police officers went absent on leave and joined rebel forces and significant portion of civilian armed volunteers joined rebel group, up to that point I did not believe martial law required. After receiving reports separate rebel armed group was formed, we concurred with martial law.

Aquino: Brawner made statement no need for martial law in Maguindanao or elsewhere because of “level of normalcy.” Gonzalez on Dec. 1 made similar statement; also Puno’s opinion in undated national security briefing martial law required. To Ermita: when did change in stand take place?

Ermita: At the time briefing was given on Dec. 4, a report was presented before National Security Group of normalcy in the ground in the sense AFP had conducted operations on ground, just as PNP had been sent to area to undertake needed investigation; which means there was no actual violence on Dec. 4, hence reported by AFP and corroborated by PNP there was normalcy at that particular moment; however as pursuit went on, reports filtered and reported to Office of President and continuing conferences pointed to need for additional measures; as born out by briefing officer, situation had to be properly controlled if first to account for perpetrators, second to allow investigators to do work; and at same time gather evidence on the ground; as shown by martial law declaration, afterwards proved there was destabilization in the area, witnesses afraid to come out, judges unwilling to issue warrants, etc. This is why after Dec. 4 it continued to deteriorate.

Aquino: For clarity: no violent clashes from state of emergency; have there been violent clashes?

Ermita: Dec. 1, none; by Dec. 4, reported that some, including those not disarmed, were preparing.

Aquino: So answer is no violent clashes since state of emergency?

Ermita: No clashes, but they were just regrouping.

Aquino: May we know if any high-powered firearms with AFP-PNP markings that fell into hands of armed have been identified?

Ermita: AFP to answer question.

AFP: There are three possible bases for the firearms in the possession of Ampatuan rebel armed groups: 1. acquired from legal sources, meaning commercial companies; 2. acquired from illegal sources, meaning enterprising civilians or possibly retired personnel; 3. acquired from the past conflicts in Mindanao, remnants or residuals of conflict (MILF MNLF).

Aquino: Have they been identified as to who should be in custody of the same, would a governor however powerful have means to acquire mortars, etc. that require DND certificates; they have serial numbers, are we to get it AFP does not know provenance of weapons and how Ampatuans got hold of them?

AFP: We have accounted for weapons, 347, in special companies; the others, we are identifying and cannot identify sources because of tampered serial numbers.

Aquino: Crime laboratory can’t help?

AFP: It can.

Aquino: What powers can president wield not already covered by her calling out armed forces?

Devanadera: The only thing the President can do is to call on armed forces and police to come to a particular area, in this situation, Maguindanao…

Aquino: To suppress lawless violence?

Devanadera: Yes.

Aquino: What else, under martial law?

Devanadera: Martial law and suspension of writ, with twin exercise of extraordinary powers are addressed to quell rebellion; in calling out power, rebellion need not be present; just to address lawlessness. However in other two powers, rebellion required.

Aquino: There are no additional powers granted to AFP, PNP under martial law? Unlike in 1972?

Devanadera: Yes, Constitution, civilian government still function.

Aquino: So why is calling out not sufficient?

Devanadera: One is for lawlessness, the other, rebellion.

Aquino: Who exactly committing rebellion?

Devanadera: Ampatuan group, plus their armed forces or people heavily armed.

Aquino: These same forces were previously agencies of the state, organized under auspices of the state?

Devanadera: Yes. To defend republic and the people, now transformed into private army, following rule of their leaders now, not the republic.

Aquino: For rebellion, public uprising, armed, for purpose of removing control required?

Devanadera: Well, in that, there need not be violent clashes; we have seen in reports as submitted there was massing of these people who are heavily armed.

Aquino: Nobody has presented any evidence they are withdrawing allegiance or seceding. Caro mentioned even building in physical control of state; courts issued warrants of arrest; ARMM proposed budget to us yesterday; did any armed groups make overt statement of rebellion?

Devanadera: Courts weren’t functioning, even today. Processes availed of came from other provinces; with respect to removal of allegiance, etc. includes reports from AFP. PNP that armed men were not following orders from duly-constituted government but merely from Ampatuans.

Aquino: Is there a separatist group that is aligned with Amaptuans as mentioned by Caro, is it named and does it have leaders, unknown to general public?

Devanadera: Let us reiterated filing by Executive Secretary on Dec. 9 to correct report, that deletes that portion for clarity (reads Ermita’s communication). This substitution became necessary because…

Aquino: If there is a deletion there is no separatist group? A new rebel group?

Versoza: There is no uh, no other group allied with Ampatuans.

Aquino: Were 62 charged with rebellion rebels before or after massacre?

Ermita: After the massacre. (Proceeds to eat up Aquino’s time by reading Dec. 9 letter)

Aquino: When Puno was initially delegated to attend to disciplining local government units, were LGU officials who refused to exercise their functions, did you appoint successor, why or why not?

Puno: Supervision was what was delegated bound by organic laws that have been passed, and Local Government Code. They have autonomy in ARMM, and we only get involved in administrative cases only upon direction of President in capacity as executive; on our own we do not have jurisdiction; with respect to organic law, our power circumscribed by organic act which provides supervision in finances from national government, grants-in-aid; conservation of rights of Christians and Lumads, general enforcement. We do not have authority to remove officers, principles of succession in place.

Aquino: You are powerless when everyone from governor down to board member refuses?

Puno: Authority to suspend regional governor and only regional governor for limited period. It’s governor who appoints subordinate officials in turn.

Aquino: But if governor has already been suspended, acting governor could have reorganized and not have failure of governance.

Puno: Acting governor takes oath only tomorrow.

Aquino: So what buttresses argument local government has failed given there are those willing to take over positions, given Caro says government in custody of official buildings?

Puno: Report we received resulted from closure of these municipal halls by mayors concerned when police instructed to safeguard financial records. Necessitated control by PNP.

7:16 PM

Aquino time up. House Majority leader: Dilangalen recognized. But first brief suspension to allow Gen. Ibrado to join panel. ON TV Kit Tatad argues Ermita signing report for President makes report invalid; the obligation is specific and personal.

7:29 PM

Session resumes, then suspended again.

7:32 PM

Dilangalen recounts meeting Zaldy Ampatuan at airport, day after massacre. Invited him to see his father. They went, met Dureza, who was conferring with Ampatuan Sr., suggested Ampatuan Jr. be presented to him. Ampatuan Jr. committed to present himself for investigation -belies his having “surrendered.” Thence, inquest, NBI jail, cases of multiple murder filed. To Devanadera: what is development of case, besides Ampatuan Jr. and included as accused?

Devanadera: Status of case: vs. Unsay Ampatuan, information filed in court; Andal Sr., other Ampatuans, others: under regular preliminary investigation. Canapia, Dilon, going through different process, inquest, case filed in court. We can see for Ampatuan Sr. under regular preliminary investigation.

Dilangalen: All other respondents other than Ampatuan Jr. under preliminary investigation, filing Dec. 18? Cases of rebellion filed?

Devanadera: Yes and yes.

Dilangalen: Did PNP or military attempt to arrest or put under house arrest, the Ampatuans before martial law?

Devanadera: I am not in position to answer. (redirected to PNP, Puno)

PNP: No attempt to arrest the other Ampatuans before martial law.

Dilangalen: To Gen. Ibrado, Maj. Cabangban told CNN they had restricted movements of Ampatuans in order not to contaminate area, so anytime warrant issued, they could be arrested. This was before Dec. 4. Did this have full support, acquiescence of Chief of Staff, possible case of restriction of liberty?

AFP: Troops instructed to put up checkpoints, control points around residences but not for the purpose of restricting their movements.

Dilangalen: Reads report of raids on Ampatuan properties; Cabangbang says government tried to build case, but took long, so government gave us free hand, so we needed declaration of martial law.

AFP: The raid conducted on warehouse was done after martial law declared.

Dilangalen: Confirmation of statement of operations officer of Eastern Command, Cabangbang, that movements restricted to prevent contamination, DOJ having difficulty making case?

Devanadera: The reason no information has been filed against Ampatuan Sr. is because he has to undergo regular preliminary investigation -subpoeanas, etc. Only after prosecutors find indictment warranted is information filed in court, then warrant issued.

Dilangalen: Ampatuan Jr. presented himself to authorities; inquest undertaken; inquest requires arrest; but he was not arrested, but still seized and charges filed Branch 15 Cotobato City.

Devanadera: There is order from SC approving transfer of venue to Quezon City.

Dilangalen: No sitting judge there because judge was murdered?

Devanadera: I don’t know; all I know no judges at that time.

Dilangalen: For your information, Branch 15 vacant since death of judge, not filled by Office of the President; branch 13, 14 it is not true there are no judges; they are on travel with approval of Supreme Court. Now in whereas clauses of Proc. 1959, re: condition of peace of order deteriorated to extent public safety endangered, I hope lady Secretary informed definitely no judges there because in Branch 15 no one appointed by President for vacancy; the other judges are on pilgrimage in Saudi Arabia with approval of Supreme Court. And Supreme Court spokesman belied your assertion justice system not functioning, SC had designated judge who issued commitment order.

Devanadera: Special designation.

Dilangalen: Heavily armed groups have established positions, depriving executive of powers, etc.: let me recall provision of Constitution… Removing imminent danger thereof in 1935 Constitution. Comment?

Devanadera: Yes, present Constitution different from old; martial law allowed only with invasion or rebellion, and restrictions imposed.

Dilangalen: So clear only actual invasion or rebellion when public safety requires it is martial law or suspension of writ allowed. A few days ago Justice Sec. asserted martial law declared because of looming rebellion in Maguindanao. Referring to heavily armed groups establishing positions etc. Am I correct? Looming rebellion?

Devanadera: Let me clarify-

Dilangalen: You are referring to 1935 and 1973 Constitution not 1987 Constitution- looming rebellion not grounds…

Devanadera: We studied 1935 Charter in Ateneo. Let me explain context: attributed to me in answering a question on what happened after massacre and what came to my knowledge, when I saw reports, I thought I saw a looming rebellion, but after further study it presented to me there was actual rebellion. I have made clarifications.

Reiterates, based on evaluation, chief executive had been, in effect, deprived of ability to enforce laws… There were already reports of something that was uh, shaping, my first reaction was, is there an actual rebellion or looming rebellion, it was a question I posed.

Dilangalen: But your account suggests there was looming rebellion at time of issuance of Proc. 1959… Anway, so local government offices were closed and officials refused to discharge functions. Suppose I’ll present an order from military commander, Ferrer, directing closure of capitol and all offices, will you agree with me the closure of the offices was not because of Ampatuans but because ordered by martial law administrator? Because I present order where Col. Ferrer ordered closure of capitol; I even called DILG and inquired, before martial law, are Ampatuans under arrest, because no one could visit? Cabangban said they have to seal the area to prevent contamination so they could also easily arrest.

Devanadera: I am not in a position to comment. (redirected to AFP)

AFP Ibrado: We did not issue any order to close government offices in Maguindanao.

Dilangalen: Suppose I can present a letter? I got text message video will be sent of military physically closing offices. Now (to Devanadera), local civil registrar refused to accept registration of death certificates purportedly upon order of Ampatuan Sr. What is relationship of this to rebellion? When government official prevents functions, it’s not rebellion, it’s grave coercion; there’s grave coercion everywhere. So martial law everywhere?

Devanadera: We cannot take one uh, one uh, situation in isolation but take all reports all together. And uh, when it comes to rebellion, we have that situation based on the reports that uh, the armed uh, groups, were already in effect, depriving chief executive of its powers to enforce laws, they were already having their own organization, own government, so not anything looming, something actual.

Dilangalen: Article 144 etc. insists there must be public uprising for the purpose of removing allegiance from national government, etc. Since when did Ampatuans act to secede?

Devanadera: Armed groups formerly organized to defend republic this time was transformed into private army getting orders only from Ampatuan clan, based on reports.

Dilangalen: CVOs, Cafgus, PNP, AFP? Already loyal to Ampatuans and not Republic of the Philippines?

Devanadera: That’s in the report.

Dilangalen: But these were under supervision of the Philippine Army. Cannot be established unless under supervision of military officer. Why break in chain of command? How come PNP left and changed loyalty? During budget hearing I raised point to Puno and Versoza how come provincial director only a major? Should be full Colonel, so how come. Everything became uncontrolled because AFP and PNP not doing its functions now blaming Ampatuan or fault of AFP PNP?

(silence)

8:05 PM

Dilangalen concludes. Senator Joker Arroyo next.

Arroyo: Problem with martial law as we knew it in 1972 is that it was abused. Now martial law in 1972 was under 1935 Constitution and Proc. 1081 vesting in President sole authority to do what he could. That was the problem and we suffered 14 years. We have Proc. 1959 based on Constitution of 1987. All three branches mandated by this Constitution in implementation of martial law: President imposes, Congress reviews it, Supreme Court can decide factual circumstances. To Sec. of Justice: Supposing Congress does not revoke martial law, it continues; let us suppose there are abuses, will the Executive recognize the continuing power of Congress to review the acts of the President? In case President or agents abuses, Congress can again convene and check actuations of President?

Devanadera: There are grounds martial law can be declared; President submits itself to Congress for verification and validation; as for other actuations of Congress we submit it to wisdom of Congress.

Arroyo: Does President accept power of Congress for continuing review? If we do not revoke this, what check is there on the President, without continuing review, otherwise there can be no check at all. If we let go of you now, when can we revoke it then? A week from now, if abuses, how can we correct the situation?

Devanadera: Since there are no precedents, I will suppose this will partake of some academic discussion; I would like into powers of judiciary.

Arroyo: I cannot agree judiciary should interfere with political departments of government. Now there is power to review or revoke, left to Congress. Problem is if today we say go ahead, simple question: a week from now can we not convene to review again?

Devanadera: I would venture into proposition that Congress has power to look into basis if martial law declaration…

Arroyo: At any time? Not saying if we let you go now, you can do what you want.

Devanadera: I don’t see any impediment to Congress inviting again. For anything we can have a committee investigation…

Arroyo: We don’t want the judiciary to decide a quarrel between legislature and executive, we cannot make Supreme Court arbiter of our powers. I want clear-cut answer Executive recognizes if abuses committed, Congress power to convene again recognized. It’s as if this is a one-shot deal, we meet, either revoke or allow; this cannot be; there’s a continuing power to review.

Devanadera: Yes.

Arroyo: If that’s position we can look more kindly on this martial law.

Devanadera: I also believe judiciary in case of any abuses, people not deprived.

Arroyo: No, no, this is a provision doing away with all other provisions; the point is you must assure us Executive will also do right thing and we cannot rely simply on the promise you will do right thing; we want recognition of continuing power of Congress to review or revoke.

Devanadera: We acknowledge that proposition.

Arroyo: Has there been incident since imposition of martial law or what was it called, state of emergency, any abuses?

Devanadera: I don’t know of any. (redirected to Ermita)

Ermita: No complaint received from any sector whatsoever.

Arroyo: Power is issuance of warrants of arrest and warrants of seizure; before martial law you couldn’t seize; now you can arrest and seize provided within three days you have to file case in court. Now, uh, other than that there is no other extra power given to President?

Devanadera: Yes.

Arroyo: This 1959 identifies MILF as excluded from coverage; two encampments in Maguindanao are we supposed to understand those are untouchable because of agreement government has with peace efforts?

Ermita: This is in recognition of the fact that this administration has primacy of peace process in its mind, insomuch as two panels, GRP-MILF have agreement suspending military actions. Was felt observance of peace process necessary so as not to impede resumption of peace talks.

Arroyo: Government has been fighting MILF; despite continuing fight, this and past administrations did not see fit to impose martial law. Comes the massacre, one incident, martial law is imposed. Enlighten us why this kind of disparity, war with MILF no martial law, then this gruesome and unpardonable massacre but martial law imposed immediately?

Ermita: Administration feels we should not jeopardize objectives of peace process.

Arroyo: Let’s say Congress votes not to revoke. We have no assurance President will not, what do you call this, lift martial law because crisis is over. What then are assurances of Executive martial law will not be unnecessarily prolonged?

Ermita: In same manner basis was made taking note of report of AFP-PNP same way President will I suppose decide whether to lift. But lifting martial law will not necessarily mean state of emergency will be lifted.

Arroyo: Despite limited powers -warrantless arrest, seizures- temptation is strong military will not lift, we need assurances.

Ermita: By way of example, should authorities on ground, PNP AFP, DILG, observe control has been stabilized, therefore no more need, then I suppose appropriate decision will be made.

Arroyo: We hope it will be made, martial law is an abnormal situation, a government that operates by virtue of martial law is not a normal situation. Maguindanao is fraction of entire Philippines: but impact and image of entire Philippines affected. Effect is like Pakistan, places in Africa, etc. So, uh, well, along the way, if you could give some inputs, you have to persuade us the President means business and that the earliest time it will be lifted will be beneficial to the country.

8:28 PM

Arroyo (mercifully) ends. Short suspension to allow resource persons to have dinner, resumption after 15 minutes. (In Congressional time, this means 1 1/2 hours!)

9:21 PM

Session resumes. Rep. Edcel Lagman begins with review of circumstances that justify martial law. Emphasizes Constitutional Commission’s deleting “imminent danger thereof” as grounds. Asserts Congress lacks continuing authority to review implementation of martial law. Can only review, once, the factual basis for imposing it, and only with an eye to revoking if Executive unable to prove case of rebellion or invasion and public safety requiring martial law. Ask Devanadera if she still accepts Joker Arroyo’s proposition.

Devanadera (backpedaling from corner Arroyo pushed her into earlier) I agree with you and believe judiciary is best forum; if you want to be very literal, Constitution only specifies Congress’ power to revoke or to extend.

Lagman: Not just literal, but legal and moral. To all resource persons: did authorities recommend to President to “froclaim” martial law and suspend writ of habeas “koorpoos” because of actual rebellion in Maguindanao?

Ermita: Recommended by body to President after briefing by AFP and PNP and DILG Secretary.

Lagman: Uh, Honorable Executive Secretary, was this collective decision recommending to President, uh, based on, uh, on an actual finding by those making recommendation that uh, actual rebellion is occurring in Maguindanao?

Ermita: Not on whether actual fighting going on; the actual determination of elements of rebellion came from reports that armed groups indeed prevented authorities from exercising duties, reports of PNP, DILG and NBI that there was difficulty in obtaining warrants, because no judges willing, hence necessary to declare martial law.

Lagman: A perusal of text of Proc. 1959 would show absence of a clear, categorical statement a rebellion was actually occurring in Mindanao. Would that be an accurate reading of the text?

Ermita: You may be correct there was no actual rebellion going on but all indications on the ground indicated inability of authorities to undertake their duties…

Lagman: We are happy to note there was an admission there was no actual rebellion in Maguindanao. But the presence of armed groups would be indicative of lawless violence which is not synonymous with rebellion. Caro stated this was worst election-related violence (referring to massacre) an act of gross lawlessness but definitely not rebellion. May I ask Secretary of Justice what facts convinced her that instead of a looming rebellion, there is actual rebellion in Maguindanao?

Devanadera: Upon arrest of Ampatuan Jr., my first reaction to reports was, it may be a looming rebellion, but when I shifted to other reports, it was clear it was not something looming but it was actual rebellion, we were able to conclude because we got information heavily armed groups took very strategic positions within Maguindanao such that they were in effect preventing the implementation of laws and giving threat to public safety. (Quotes from President’s Report) So those were the events, that was the situation presented to us.

Lagman: When we look at the elements of rebellion, the elements are, public uprising, taking arms against the government, in Maguindanao, prior to the declaration of martial law. Was there a public uprising?

Devanadera: The fact there was a massing of many people who were heavily armed and taking strategic positions to prevent enforcement of the laws, to our minds this has satisfied first element of rebellion.

Lagman: That would be indicative of lawlessness, as Fr. Bernas says. The power to prevent violence was sufficiently covered by power of President to call out armed forces. Were there overt acts?

Devanadera: There were overt acts; you mentioned Bernas, he wrote in his column the Revised Penal Code is not required as sole grounds…

Lagman: You assert one basis was civil government ceased functioning, is that grounds for establishing rebellion?

Devanadera: All the events have to be considered together to appreciate that actual rebellion was going on…

Lagman: To my mind non-functioning of civil authorities would be indicative of sedition, not rebellion (cites Art. 192 of Penal Code). But sedition not ground for declaring martial law.

Devanadera: Sedition definitely, is different from rebellion…

Lagman: My point is preventing civil authorities from exercising their function is an element of sedition. Prior to Dec. 4 when martial law was declared, from the Maguindanao situationer, there is no report in that situationer of actual armed, public uprising against the government. Review the report given us to by PNP Caro, there is no mention that prior to Dec. 4 there was public uprising, an armed uprising, against the government, so that would negate factual basis of declaration of martial law and suspension of writ.

Devanadera: (Falters)

Lagman jumps in and ends his questions.

9:43 PM

Zubiri moves to recognize Jinggoy Estrada.

Estrada: (to Ermita) Proc. 1949 declared state of emergency; then ordered transfer of general supervision of ARMM from OP to DILG. Thereafter DILG issued department order authorizing task force to mobilize DILG officials to ensure functions and duties of ARMM Governor are performed in accordance with law. Were these issuances not enough to control situation in Maguindanao?

Ermita: It was thought at the time state of emergency would suffice, magnitude of the problem had not been captured by the Executive based on reports. For that matter, issuance of Administrative Order delegated authority of supervision to the Sec. of DILG in order that functions of local government would not be hampered. At that point not yet very clear situation had deteriorated “so bad” it would require martial law.

Estrada: Some personalities were pinpointed as inciting the rebellion. Who were they?

Ermita: At that particular moment only ones identified within 48 from the “happening” on Nov. 23 was the mayor (Ampatuan Jr.).

Estrada: Martial law still needed since government already functioning?

Ermita: Could not be said at that point -with arrest of Ampatuan Jr.- as situation developed, after witnesses came out after arrest of Ampatuan Jr. later only after they were convinced they’d be assured protection; only then did investigators extract information about other personalities, including well, the rest of the Ampatuans in office.

Estrada, asks Ermita enumerate municipalities in Maguindanao;how many functioning?

Ermita: 16/22 under control of Ampatuans.

Estrada: (to Devanadera) You said judiciary is not functioning? What’s basis?

Devanadera: What I said is, courts which has jurisdiction over Maguindanao not functioning in the manner we know how courts function; for example, if prosecutors need to file an information, the DOJ need not communicate with the Supreme Court for the Supreme Court to designate a judge; under normal situation you go to court, it will be raffled and judge attend to case; but not in Maguindanao.

Estrada: So you went out of your way to inform Supreme Court of problem in Maguindanao, what was response of Supreme Court?

Devanadera: They had to look for judge from another province just to attend to our filings. In same manner law enforcement agencies needed search warrants, I had to communicate with Supreme Court so a judge would issue search warrants; it took three days for Supreme Court to find a judge -from Kidapawan City. Places needed searching, law enforcement lost opportunities for search. I don’t think that’s normal courts.

Estrada: Only one judge functioning in Maguindanao?

Devanadera: I can’t say functioning; we have to inform Supreme Court for him to go to Cotabato City from Sultan Kudarat.

Estrada: Because he fears for his life?

Devanadera: That’s what we were told. (asked again about rebellion) All the acts in Maguindanao can be considered as actual rebellion…

Estrada: Did NBI report to you any lawlessness in Maguindanao?

Devanadera: NBI, especially GenSan given specific tasks, there seemed to be some kind of informal division of tasking on the field, that must be reason no such report from NBI to me.

Estrada: Who is highest commander in Maguindanao now?

AFP (Ibrado): Gen. Ferrer, also commander of Eastern Mindanao Command.

Estrada: Basis for his selection?

AFP: Highest-ranking officer… Commander ….

(Estrada and Ibrado wrangle over whether AFP considered an actual rebellion occurring, Ibrado replies they view as serious the presence of armed groups; Estrada switches to discovery of buried ballot boxes; PNP clarifies it was sack of voters’ IDs; questioning shifts to total arms confiscated)

Estrada: Why do Ampatuans have AFP “ammunitions”?

AFP: I can only account for firearms issued to Cafgus…

Estrada: Any intelligence reports of Ampatuans possessing AFP ammunition?

AFP: Well, there are so many possible reports…

Estrada: If there hadn’t been massacre, martial law, you wouldn’t have discovered arms, ammo, even alleged police cars, you mean to say you never received reports they had these things?

AFP: About hidden guns, ammo, we didn’t know they had them, but we know there are CVOs and other personalities armed and with them.

Estrada: (asks do you admit your intelligence is weak? AFP says no… Estrada shift questions to PNP): would you say you’ve been remiss in your duties regarding peace and order?

PNP: We are maintaining our functions in coordination with local chief executives who supervise local police forces, we work in coordination also with AFP and we uh, are always in coordination with local government officials.

Estrada: What serious degree of lawlessness prompted Pres. Arroyo to impose martial law and justify its continuation?

PNP: Movement of armed troops… We observed movements of armed men upon arrest of Ampatuan Jr. We saw also direction of the local government officials, especially Gov. of Maguindanao to go to their area, with CVOs being retained by members of Ampatuan family. Immediately after massacre, we also received reports of movements of armed men, and when we pursued perpetrators of crime, we were informed some had joined CVOs.

Estrada: Considering CVO’s under your control, would you say ineffective because PNP unable to control?

PNP: CVO’s under local government units. (describes CVO system)

Estrada: CVO’s armed? Who provides arms?

PNP: Yes, this is subject of our investigation… Most of those involved in massacre were in the CVOs.

Estrada: Any report arms issued to CVOs landed with Ampatuan family?

PNP: CVOs armed by chief executives, especially Ampatuan family.

10:13 PM

Speaker says next person to interpolate (last for the night) is Satur Ocampo.

Ocampo: What we are discussing is extremely serious. There is a tendency to downplay this situation. This was very serious, suspension of writ and martial law separate acts are unprecedented. Were emergency, suspension of write, martial law really called for by the situation? Report says all law enforcement agencies had been mobilized for investigation and apprehension of those involved in massacre. Things started with lawlessness -the massacre- but element of rebellion entered the picture after the arrest of Ampatuan Jr. when government expected swift apprehension of other suspects; government says contrary happened. Since then, government asserts chief executive deprived of authority… and separatist group joined forces with Ampatuans (per report, except separatist reference has been deleted).

And yet Caro made reference to the separatist word; and yet, Exec. Sec. in his amending letter, said this should be interpreted with reference to Ampatuans and no other group; while Justice Secretary says it was Ampatuan forces acting to remove allegiance. But first version of report clearly stated a separatist group -that can only be MILF. Yet Proc. 1959 exempted MILF from coverage. The one putting proclamation together was confused. As Lagman said, proclamation does not categorically state rebellion was ongoing. So it was not rebellion, but lawlessness taking place in Maguindanao.

From Dec. 1-4 the “rebels” were massing… but were they taking up arms? No report of this anywhere. Any actual engagement? You all said no, but that there was effect of rebellion as allegiance taken away from the government. I’ve been accused of rebellion, twice, and acquitted twice. Rebellion requires an overt act. When I was a prisoner under martial law -the Executive Secretary was there, you first to visit me when I was in isolation- a three year military commission could not prove rebellion against me, because no proof I took up arms. Until I escaped. When I was accused again, as a member of this Congress, Norberto Gonzales said it took nine months to prepare case against us, 139 documents, but July 1, 2007 SC said no evidence of rebellion. In my view, the rebellion in Maguindanao is ongoing -on the part of the MILF. The Ampatuans are not engaged in rebellion -their crime is the massacre- yet overnight the CVOs, Cafgus have transformed into a rebel army?

These occurences -state of emergency, suspension of writ, martia law- an admission government is useless, and requires one executive action over the other?

Ermita: Precisely, Proc. 1949 declared state of emergency, because at that point in time, determined it was adequate just to call out armed forces to suppress lawless violence; but as situation developed, as days went on and situation evaluated, they discovered this was insufficient. Hence collegial recommendation to President to resolve situation by means of martial law. Now the martial law of the past is different from martial law today, suspension of writ not automatic and not open-ended. If martial law had not been imposed, the arrest of those investigators knew had to be taken in couldn’t have occurred because they were surrounded by their armed supporters. disarming wouldn’t have been easy without martial law.

Ocampo: Proc. 1946 hasn’t been lifted, correct? So all three in effect?

Ermita: Correct.

Ocampo: You intend to use up entire 60 day time frame?

Ermita: The 60 days is the limit but I would like PNP and AFP to give us update on how suspension of writ and martial law have succeeded…

PNP: We’ve seized many firearms, vehicles, made searches at various places, private property and government property (municipal hall properties).

Ocampo: But what’s happened to massed-up forces? Standoff?

PNP: We’re conducting patrols. Sightings say they’ve moved towards the East, we encountered a group at Datu Unsay, there was shootout, also in a recon operation, they were fired upon when recovering firearms, we have also arrested persons suspected of having allowed the hiding of several armored trucks and the fake police vehicles… Also arrested persons in various municipalities and filed rebellion charges versus 24 persons including Ampatuan Sr. and Zaldy Ampatuan today. We will be analyzing… We are continuing security operations.

Ocampo: You’ve filed rebellion charges, this is the subject of preliminary investigation?

Devanadera: Inquest for rebellion.

Ocampo: What’s your success rate on rebellion charges?

Devanadera: I would not want to preempt uh, the uh, the uh efforts of the prosecution…

Ocampo: I’d like to stress why I raised the fact this is unprecedented and no proof of actual rebellion as defined in Revised Penal Code which requires actual taking up of arms. If this Congress fails to revoke martial law on these questionable bases, there is likelihood President will request extension; likelihood it will be imposed in other places, dire consequences unimaginable. Also looming suspicion by charging Ampatuans with rebellion, it’s designed to weaken case -absence of proof of rebellion will lead to Ampatuans let loose; then where would we be?

10:39 PM

Sen. Roxas: administrative matter. More than 5 hours since s0-called report rendered by PNP. Many assurance report is forthcoming, when exactly will be given this report in hard copy?

Zubiri: With House Secretariat, tasked with reproduction, let’s ask Speaker to ask Secretariat.

Enrile: Let’s ask indulgence of Senate, copying is probably still going on…

Roxas: There must be 1, 10, 50 copies already? We want to establish clearly for the record, because that in effect is narration of evidence Executive has for declaration, so maybe some copies can be secured?

Speaker: Secretariat has informed me they’ve prepared 300 sets for all of us, hard copies available tomorrow morning. If copies already available, please ensure senators get copies first.

Sen. Pimentel: As a privileged motion, the situation on ground very critical, this is why Constitution hastens checks and balances in this case, but also we have to hear people justify or criticize, so we have to spend some time… I would like to make a motion that Exec. Sec. be made to report daily on the happenings in the area of martial law.

Enrile: To whom will reports be made?

Pimentel: To Congress. To us. Time is of the essence, this is a part of our checks and balance duty, and I think Secretary is willing to do it.

Enrile: Exec. Sec. will respond if he is willing, this will require daily transmission of events in the area.

Ermite: We will abide by request and come up with latest accomplishments tom.

Pimentel: Press in Maguindanao asking they be allowed to cover activities of armed forces there. Difficult, but it can be done, US embedded media in Iraq. I also wish to make that as a proposal, accredited members of the press may accompany military or police units operating in area of martial law.

Enrile: I think this is a matter that involves a command problem on the part of the military, I am not prepared to concede we should tell commander on the ground what to do.

Pimentel: We are not demanding that but asking him if possible.

Enrile: We will ask Exec. Sec. since he is alter ego of commander in chief if this is possible so we can act on it maybe tomorrow.

Pimentel: Resource speakers not placed under oath, even if we do not ask them to take specific oath, but remind them they’re bound by oath of service.

Enrile: I think they are responsible public officials and know they will fulfill their duties as faithful public servants.

Pimentel: I am wearing black because I mourn massacre victims and I also mourn death of democracy in Maguindanao.

10:48 PM

Motions made, approved, by both chambers, to suspend session until 2 PM, December 10.