No Fully-Automated Elections in 2010

UP Law Professor Harry Roque and the Concerned Citizens Movement (CCM) have been at the receiving end of criticisms ever since they filed a petition before the Supreme Court(SC)questioning the legality of fully-automated elections in May 2010. Although clearly expressing their position that they favor automated elections, Harry Roque and CCM's move is seen as abetting the agents of electoral fraud who thrive under our antiquated manual election system.

One of the major objections posed by Roque and CCM is the holding of a nationwide automated elections in May 2010. According to Roque and CCM, Republic Act 9369 (law amending the Poll Modernization Act or RA 8436) mandates Comelec to pilot test poll automation first by holding it in selected cities and provinces only for the coming national and local elections. A closer reading of RA 9369 will show that Roque and CCM are merely acting as proponents of the rule of law.

We were led to think that Congress finally crafted a mandate for full automation in the coming 2010 elections, but a review of the amendatory law will reveal that it provides for a hybrid election (partly automated and partly manual) only. The pertinent section of the law that justifies this assertion is as follows:

SEC. 6. Section 6 of Republic Act No. 8436 is hereby amended to read as follows:

"SEC. 5 Authority to Use an Automated Election System. - To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local election, which shall be held immediately after effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao, to be chosen by the Commission: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 election shall not be chosen: Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented nationwide."

Notice the "provided clause" in the foregoing. It talks about the conduct of national and local elections in May 2010, which provides for automated elections (AES) in at least two highly urbanized cities and two provinces for each of the country's major islands. Comelec is given the authority to choose the appropriate cities and provinces, subject to the following criteria: (1) the Sanggunian or local legislative body of the chosen cities and provinces must consent to their designation for the conduct of automated elections; and (2) the officials of the designated cities and provinces must not have been administratively charged within 16 months before the May 2007 elections.

In other words, the amendatory law mandates Comelec to conduct automated elections in 2010 in certain selected areas only. It may be argued that the word "at least" in section 6 authorizes Comelec to hold automated elections in more than two cities and provinces as such phrase only sets the minimum. And more than two could practically mean covering all cities and provinces in the country which would in fact make automation nationwide. But that would be reading into the law something not contemplated by it. First, that would mean requiring the consent of the Sanggunian of every city and province in the country, which is of course ridiculous for why would the law prescribe such consent requirement if after all every city and province would be involved. Besides, the provinces and cities could clearly defeat automation by withholding consent. Second, a nationwide automation is clearly not contemplated by limiting it to cities and provinces whose officials have not been subjected to administrative charges before the 2007 elections. Surely, there are cities and provinces the officials of which have been administratively charged.

The last sentence of section 6 states that AES will be implemented on a nationwide basis in regular elections after the 2010 elections. Now if the 2010 elections are meant to be fully-automated, why would Congress even bother inserting this last sentence? The clear implication is that a fully-automated election is only allowed in regular elections succeeding the 2010 elections.

Another provision of RA 9369 which reveals the intent of Congress on partial automation is the following section:

SEC. 31. Section 25 of Republic Act No. 7166 is hereby amended to read as follows:

"Sec 25. Manner of Counting Votes. - In addition to the requirement in the fourth paragraph of Section 12 of the Republic Act No. 6646 and Section 210 of the Omnibus Election Code, in reading the official ballots during the counting, the chairman, the poll clerk and the third member shall assume such positions as to provide the watchers and the members of the public as may be conveniently accommodated in the polling place, an unimpeded view of the ballot being ready by the chairman, of the election return and the tally board being simultaneously accomplished by the, poll clerk and the third member respectively, without touching any of these election documents. The table shall be cleared of all unnecessary writing paraphernalia. Any violation of this requirement shall constitute an election offense punishable under Section 263 and 264 the Omnibus Election Code.
"The chairman shall first read the votes for national positions.
"Any violation of this Section, or its pertinent portion, shall constitute an election offense and shall be penalized in accordance with Batas Pambansa Blg. 881.

The above section, as well as section 12 of RA 6646 or the Electoral Reforms Law of 1987 and section 210 of the Omnibus Election Code as referred to therein, provide for the manner in counting of votes at the precinct level under a manual election system. It is accomplished with the chairman of the Board of Election Inspectors tediously reading the names of all candidates voted in every ballot. If it were the intention of Congress to provide for full automation come 2010, the above section 31 would surely be out of place since in an automated election either the ballots are brought to a central counting center where they are fed to counting machines or the votes on every ballot are counted as they are fed to voting machines which will then electronically transmit the results for consolidation, or by any other methodology as the voting machines permit and as determined by Comelec, but certainly it will not be in the antiquated manner provided by section 31, which is prone to cheating and election protests.

Section 31 is clearly intended to govern the manner of counting of votes in areas where AES is not implemented in 2010. These will be the cities and provinces which will not be designated by Comelec for computerized elections. And this is only possible in partially-automated elections. As for areas covered by AES, Comelec is authorized under section 18 to provide for the procedure in the automated counting of votes.

If the 2010 elections proceed under a fully automated mode, as it is being pursued by Comelec right now, losing candidates could find refuge under RA 9369 in asking for the nullification of the elections. Imagine the results of an entire election being invalidated for having been conducted in violation of law. This would be a surefire recipe for a constitutional crisis of huge magnitude that would throw the whole country in chaos. So Roque and CCM are actually doing us a favor in questioning as early as now the legality of a fully-automated elections in 2010.

But there is still hope for nationwide automated elections even if the SC were to rule against full automation in 2010. Congress could easily amend RA 9369 by removing the partial and qualified application of the AES as it now stands. If President Macapagal-Arroyo is really true to her pronouncements of favoring fully-automated elections in 2010, she could as easily certify as urgent an amendatory bill that Congress would pass.

Now if Roque and CCM are proven wrong, as I will be, then we could all concentrate on becoming vigilant to ensure the conduct of honest, orderly and peaceful fully-automated elections in May 2010.

Free Speech is the Casualty in Punishing Willie Revillame

The Movie Television Review and Classification Board (MTRCB) has once again shown its penchant for curtailing free speech rights by mulling over the imposition of sanctions against Wowowee television show host Willie Revillame. Last Monday, Revillame expressed his objection to the showing of live feeds on Cory Aquino's funeral cortege during a segment of the popular noontime show. He asked for the removal of the feeds for being inappropriate and distracting.

Apparently riding on the tide of public outrage against Revillame, MTRCB Chairwoman Consoliza Laguardia said Revillame violated Presidential Decree 1986 (the law creating the MTRCB)and the KBP (Kapisanan ng mga Broadcaster sa Pilipinas) Code. Notice the haste and prematurity with which Laguardia has spoken; already, the MTRCB through its chairwoman pronounced its judgment even before the besieged showman was given the opportunity to defend his actions.

But not only is the MTRCB disregarding Revillame's due process rights, it is also arranging to violate his free speech rights by imposing sanctions for his conduct which, although distasteful and inappropriate, is a function of democracy. However objectionable Revillame's statement may be, the fact of the matter is there is nothing in either his conduct or statements that would justify MTRCB in imposing sanctions on him, for he was free to express how he felt about the mixing of the funeral procession with his game show.

Speech under our laws can only be regulated or punished if it passes a strict scrutiny test. Not long ago, Chavez v. Gonzalez made it abundantly clear that this test applies with equal vigor in the broadcast media - which is a dramatic departure from American jurisprudence from where we imported our concept of free speech. The Supreme Court in this case did away with the differentiation between print and broadcast media in the application of the strict scrutiny standard in content-based regulation of speech. Under this test, speech can only be regulated if it creates or is likely to create a clear and present danger of a grave and imminent evil which the government has the right to prevent. The government must show a compelling or overriding interest that would justify curtailment of speech.

There is nothing in the statement or conduct of Revillame that would even remotely suggest such clear and present danger. It may be in bad taste, but to say that the government has an overriding or compelling interest to prevent or punish such speech is downright ridiculous. Revillame's gaffe is the stuff of 24/7 news that thrive on controversy rather than of state interest.

In fact, a review of section 3 of PD 1986, which is being relied upon by MTRCB, would show that there is nothing that would make Revillame's case fall squarely. Said section enumerates the powers of the MTRCB and the instances upon which it may exercise its power to approve, disapprove or otherwise censor objectionable movie and television shows. Specifically, the section empowers MTRCB to regulate or prohibit media materials constituting sedition or rebellion, which glorifies criminals and condones crimes, solely satisfies market for violence and pornography, abets the traffic and use of prohibited drugs, are libelous or defamatory, or constitutes contempt of court. None of these instances cover Revillame's statement and conduct.

It is true that good Filipino customs dictate respect for the departed, but I find it hard to understand how requesting the removal of the coverage of a funeral procession in a game show - without a doubt out of place and timing in the show - could constitute such disrespect. If there is anyone who was disrespectful it was the director of the show, and not Revillame, for including or allowing the inclusion of the former president's funeral cortege during a merrymaking portion of the game show. Revillame may be guilty of insensitivity for proceeding with his show like it was business as usual at a time of national mourning, but his act of not allowing the mixing of a somber occasion with an entertaining game show was actually the right thing to do under the circumstances. He should have, however, requested the removal discreetly and should not have needlessly publicized his disgust.

Former President Corazon Aquino became our beloved icon of democracy when she stood to fill the place of Ninoy after being felled by an assassin's bullet. She led the fight to restore our democracy which gave us the freedom to speak our minds. Punishing Revillame for his inappropriate statement - which is certainly not a "crass attempt to desecrate the memory" of the former president, as her family's spokesperson Lourdes Dy Sytangco characterizes it - would be a disregard of the cherished right which Ninoy and Cory fought for.

Obama-GMA Meeting Reflects US Policy Toward Philippines

Having spoken strongly against those who cling to power through corruption and deceit during his inaugural address, one would think President Obama would somehow reinforce this message during his conversation with GMA, whose waning administration as we know has been beset by serious allegations of corruption and abuse of political power. He made no qualms reiterating this in his disapproval of Honduran President Manuel Zelaya's ouster by the military, although there are still hanging questions on the legitimacy of Zelaya's actions that precipitated his removal. Instead, President Obama steered away from such hot-button issues like charter change, term extensions, martial law, corruption and human rights, despite the fact that these issues threaten the political stability of the Philippines.

To be sure, President Obama was briefed on these issues but policy considerations made them off-limits. That President Obama did not make any reference to them at all, or even a hint, is an indication that the US's only interest in the Philippines right now is regional security. Given the generous accommodation the Philippines provides to US forces, not to mention our history of unflinching support for US foreign policy in other parts of the world, GMA is seen by the US as an invaluable ally in propping up its presence in the Asia-Pacific region in the wake of the North Korean threat and the growing dominance of China. Serious questions about GMA's governance appear to be the least of US's worries for now.

Such approach to US foreign policy is not something new, where notably corrupt and dictatorial regimes have been supported by the US in the past in pursuing its interests, as in the case of Saddam Hussein during the Iran-Iraq War or of Pervers Musharaff of Pakistan in recent memory. Or closer to heart, we have the case of President Ferdinand Marcos who, until Edsa I, continuously enjoyed the support of the US. But the idea that President Obama would resuscitate this reprehensible policy is a big disappointment. After all, President Obama stressed during his inaugural speech that he rejects the false choice between America's safety and ideals; that US foreign policy - when it comes to protecting America - would not compromise its ideals. Although such pronouncement was made in the context of fighting terrorism it is safe to assume that it would also apply in other instances.

What is even disconcerting is that not only did President Obama fail to indicate US disapproval of any totalitarian tendencies and raise concerns on the disturbing corruption and unsolved human rights cases in the Philippines, he also heaped encomiums on GMA for her position on human rights and, in his words, for doing "an outstanding work on a whole range of issues." This is ironical because the human rights record of the Arroyo administration is not anywhere near acceptable. Just last year UN Special Rapporteur on Human Rights Philip Alston gave the Philippines a failing mark on human rights. And five months ago, the Philippines has been listed as the most dangerous peactime country for journalists in the wake of the numerous unsolved murders of journalists.

I don't know if corruption - where the Philippines notoriously and consistently get a high world ranking - is among the "range of issues" where President Obama said GMA is doing an outstanding work. I am sure he is not unaware of the recent World Bank report on corruption of road projects in the Philippines which are funded by no less than the World Bank, in which the US has a stake; or of the allegations of corruption in the use of military assistance funds provided by the US on the joint RP-US military exercises.

But why would the US put so much value in its relationship with an administration which, although has proven to be an important and loyal ally, is already in its waning days and risk the ire of an opposition that could seize power after the elections, given the administration's sagging popularity? This is a fertile ground for speculation of possible US support, or what amounts to the same thing, of off-hand US policy in case our much-feared apprehension of a term extension for GMA comes true. How we wish we knew what transpired behind closed doors between these two leaders.

Election Cases: Waste of Time and Money

"It will only be a waste of time and money," observes Pampanga Gov. Ed Panlilio's election lawyer Romulo Macalintal, when asked for his reaction to the Supreme Court's recent ruling allowing the recount of votes cast during the Pampanga gubernatorial elections in 2007. Former Lubao, Pampanga Mayor Lilia Pineda filed an election protest against Governor Panlilio by claiming that the erstwhile priest and his followers committed various electoral frauds.

This statement, coming no less from a veteran election lawyer, speaks a mouthful about the state of election cases in our country. It pains me to say this, but election cases in general do nothing except line the pockets of election lawyers, for in most cases the winners end up with empty victories, no to mention empty purses, because the favorable verdicts come in only after they have become moot. With the 2010 elections just less than a year to go, the election protest against Governor Panlilio is yet another example of an exercise in futility. The recounting of votes, while every protestant's dream, takes the longest and is the most contentious and tedious process in an election protest. The protestee's lawyer interposes every imaginable objection from the custody and handling of the ballot boxes to be re-opened to the reading and inclusion of ballots prejudicial to his client. Take it from Macalintal, who must've handled thousands of election cases (both high-profile and low-key) already, when he said that the recount against Panlilio is futile at this point in time.

With the slew of cases being filed every three years, the Philippines probably has the richest jurisprudence when it comes to election cases. A lot of defeated candidates with money to spare, perhaps excesses from the huge campaign war chests, cry they have been cheated after every elections even when the margins are huge. Many factors can be attributed to this phenomenon - which a visiting Canadian lawyer I once met during a legal forum found unbelieveable because he has never heard of election cases in his country. For one, our electoral system is prone to cheating and election officials are bribe-susceptible. Not only can election officials in charge of counting and canvassing of votes be bribed to guarantee victory for one candidate, but election judges to assure favorable judgments in election cases. Another equally strong, if not more powerful, reason is the insatiable quest for power, with all its illegitimate perquisites that promise luxury and indulgence to the holder. Politicians with such devious motivation (and there are lots of them unfortunately!) will have no qualms bribing their way to victory, both at the polls and courtroom.

If it's any consolation, law students and lawyers won't find a shortage of jurisprudence illuminating the election code and its companion laws that makes for interesting studies and provides guidance to our courts in disposing election cases before them. At least we would not be groping in the dark as US courts did in the wake of the 2000 US presidential elections between George W. Bush and Al Gore, when confronted with thin jurisprudence in trying to make sense of their varied election laws. But then again the dispatch with which these courts came out with a decision in the Bush v. Gore case (decided in less than a month) and the recently concluded legal contest between Norm Coleman and Al Franken for a Minnesota US Senate seat (completed in eight months) would make us weep.

The exceedingly slow pace at which election cases are resolved in the Philippines has turned election law litigation into a big joke. Although election cases are given preferences before regular courts and the election code directs their resolutions with dispatch, our legal system - with its loophole-ridden appeals process - makes it possible for parties on the losing end to prolong the litigation with the end goal of getting them through their terms before a decision is finally handed. More often than not election cases are resolved after the contested terms have expired or elections for the next terms have passed.

In my home town of Mabalacat, Pampanga, for example, when in 2001 the election protest against Mayor Marino "Boking" Morales was resolved declaring his long-time rival Anthony Dee the winner, Morales already completed his term of office. Then again in the 2007 case of Rivera III, et al. v. Comelec, et al., G.R. No. 167591 (May 9, 2007) - originally a petition to cancel the certificate of candidacy of Morales where I was one of the petitioners and counsels - the Supreme Court declared the ineligibility of Morales to run for Mayor in the 2004 elections. But this decision came only less than two months before the term for which he was found ineligible expired. There are tons of other cases bearing similar backdrops which i'm sure most of you can relate to that we need not cite them here for convenience.

Despite this sad reality, however, the Supreme Court, which is empowered by the Constitution to not only give meaning to the law but to promulgate rules of procedure in matters of litigation, has done nothing to put a stop to this abhorrence. Worse, it even sustains it by, for example, allowing wrongdoers to profit from their misdeeds by allowing "elected" candidates found to have lost the elections to keep their salaries, however miniscule they are compared to the illegitimate perquisites of their office, under the de facto officer doctrine. Would it not be more just that a usurper of public office be penalized by returning all the salaries he drew during his unlawful tenancy? The Supreme Court has also the penchant for entertaining petitions that do not establish new law and are clearly covered by established jurisprudence. Instead of declining jurisdiction and deferring to the Comelec or lower courts' rulings in cases squarely adhering to established jurisprudence, it proceeds to hear and publish full decisions in cases that could otherwise be disposed of by minute resolutions, thus adding to the delay in disposition of election cases.

Election litigations should not only be a lawyer's or politician's concern, but of every voter because it is an extension of the electoral process of choosing our leaders. They are designed - supposedly - to protect the voters' choice at the polls and ensure that those who court our votes are only those who are legally qualified to do so. But when they drag on indefinitely and are decided only when they can no longer serve their purpose or worse, when they are manipulated to the advantage of the unworthy, they subvert, and become an affront to, our sovereign will.

The Military as Arbiter of Political Conflict

In the July 9 New York Times article "Fuel for a Coup: Perils of Latin America's Oversized Military," Nobel Prize winner, Costa Rican President Oscar Arias wrote that strong militaries in Latin America have paved the way for military solutions to political conflicts in the region. He observed that the coup d'état that led to the ouster of Honduran President Manuel Zelaya is something that is not unexpected in a region that "continues to view armed forces as the final arbiter of social conflicts."

While the Philippines is not as extravagant as Latin America when it comes to military spending, since the days of martial law our armed forces have increasingly taken an active role in trying to resolve our nation's manifold problems. We thought that after EDSA I the re-branding (from AFP to New AFP) and reorganization of the armed forces would eventually lead to its depolitization. But as history would have it, coup after coup have wracked the nascent administration of then President Corazon Aquino.

Yet again under the present administration, the military continued its political involvement in seeking solutions to our socio-political problems during the so-called Oakwood Mutiny despite repeated indoctrination at the nation's premiere military academy and among the ranks of active military personnel against military adventurism. Then there was the Manila Pen incident. The leader of Oakwood, Navy Lieutenant Antonio Trillanes IV, would later on be popularly elected as senator even while he was behind bars.

Coup d'état as a means of achieving change is, aside from being a crime punishable by law, without a doubt unconstitutional. Not even the present constitutional provision defining the role of the armed forces as the protector of the people can legally justify the military's role in acting as the arbiter of the country's political conflicts. That provision was meant to highlight the military's role in protecting the people against external threats or aggression, and not as a prescription against a corrupt government, however appealing the idea may be to others.

Arias says the imbalance between Latin America's fragile democracies and strong militaries, with the scales tipping toward the latter, has much to do with the militray taking an active role on the political landscape. The Honduran experience shows that when Zelaya committed flagrant disregard of the country's Constitution and defiance to its high court's ruling, the military decided to resolve the impasse by arresting Zelaya and whisking him out of the country. The Honduran military's swift action did decisively what the Supreme Court and Congress failed to do: to immediately stop the illegal actions of an abusive president.

The failure of our democratic institutions in maintaining political stability and reigning in of official excesses have left our people looking for answers elsewhere. Idealists in the military have seen this as an impetus for involvement in transforming our society by resorting to extra-constitutional measures. As citizens equally disgusted by the worsening problems in the country, these soldiers follow the route where they have been trained well in seeking the much needed change. And for a country that is yet to see a truly military rule, Marcos's martial law notwithstanding, hard line military idealists would find the idea of a military junta a seductive goal, especially so that previous administration changes have only resulted in installing new faces into power without resolving the country's fundamental problems. The guiding political aphorism, it would seem, is that when democracy fails force becomes a necessity.

To be sure, the armies of other nations are much more powerful and highly trained compared to those of Latin America and the Philippines. But we do not see the United States or United Kingdom being threatened by coup d'états. The reason is their democratic institutions and processes do not fail them. Sure there are failings here and there, but not on a scale as grand as in our country. And solutions are invariably found. In the Philippines we've seen how our democratic processes and institutions have been repeatedly mocked by those in power: until now not a single verdict of conviction has been handed down against the former First Lady Imelda Marcos despite the plethora of cases brought against her, she and her family have reacquired political power, public officals who only earn miniscule salaries continue to live lavish lifestyles, we have a president who committed an act comparable to or even worse than Watergate but continues to remain in power, scandals after scandals are being heaped upon us by government officials who remain unscathed by the scalpel of justice, etc.

For as long as we do not fully mature as a democracy, where our democratic institutions and processes are revered as inviolable, members of the military establishment clamoring for change will continue to see their relevance in instituting political reforms. As long as our politicians continue to tinker with the Constitution and unabashedly violate the law, our institutions fail to cut down official excesses and public officials defy the people's will, the military will remain an active participant of political change.

When GMA Exercises Commander-in-Chief Powers

Once again talks of an impending martial law abound with the recent story in a major newspaper of a so-called "Oplan August Moon," which is allegedly a plan to extend the term of President Gloria Macapagal-Arroyo by declaring martial rule - to be accomplished by appointment to key military positions of generals loyal to GMA and creation of emergency scenarios reminiscent of the Marcos era. You may want to read Ding Gagelonia and Patricio Mangubat's interesting articles on this issue.

A review of the Constitution tells us that the president can exercise commander-in-chief powers under Art. VII, Sec. 18, which provides as follows:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. 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. . .

The foregoing provision spells out three important powers that the president may exercise in times of national emergencies: (1) calling-out power (2) power to suspend the privilege of the writ of habeas corpus and (3) power to declare martial law.

The calling-out power refers to the power of the president to mobilize the armed forces - whose regular function is to protect the territorial integrity and security of the state against foreign aggressions - in preventing or suppressing lawless violence. In the words of David v. Gloria Macapagal-Arroyo (Prof. Randy David's first taste of eskrima with GMA), this involves ordinary police action. The Supreme Court also said in this case that the criterion by which the validity of the exercise of this power may be tested is the phrase "whenever it becomes necessary" in Section 18, meaning whenever the president determines there are existing conditions or situations - such as widespread violence, invasion or rebellion - that would necessitate the use of more force in restoring and maintaining peace and order in the country.

The power to suspend the privilege of the writ of habeas corpus (HC) and declare martial law are considered the more expansive exercise of the president's emergency powers. Martial law is distinguished from the president's exercise of his calling-out power in that in the former the country or a portion thereof is placed under military rule while in the latter the armed forces is only called upon to assist the police in maintaining peace and order. HC refers to the process by which a court compels the government to produce before it a person under the latter's custody or to justify the reason for such custody. The suspension of this privilege could lead to the detention of persons without charges.

It should be noted that although traditionally the suspension of the privilege of HC is equated with or follows the proclamation of martial law, the Constitution now makes it clear that martial law by itself does not suspend the privilege and there must be an order for such suspension.

If and when GMA declares martial law and/or suspends the privilege of the writ of HC she is required by the Constitution to submit a report to Congress within 48 hours from such declaration and/or suspension. Here again is where GMA can benefit immensely from her allies in Congress. Notice the following paragraph in Section 18:

The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

Unlike the Cha-cha provision in Art. XVII, Sec. 1, there is no equivocation on the manner of voting. The Constitution explicitly allows (in fact it requires it) suspension of the bicameral process by requiring Congress to vote jointly in revoking, affirming or even extending martial law. Given the number of representatives, most of whom being administration allies, GMA can easily get congressional support. And if HR 1109 is any indication the votes alone of the loyal congressmen would suffice to meet the majority vote required.

If this happens the last constitutional resort to question the legality of martial law is the Supreme Court. Unlike in the pre-1987 Constitution era, there is no longer a debate as to whether the courts may look into the factual bases for the declaration of martial law. Where before the determination by the president of the necessity of martial law is binding and conclusive - a political question which the courts may not review - the Constitution now explicitly makes it a justiciable political question by stating in paragraph three of Section 18 that the Supreme Court may review ''the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof." In fact this provision confers a legal standing upon any citizen to bring the appropriate petition.

A word of caution however. David tells us that it will be the petitioner questioning the validity of martial law who must bear the burden of proving the insufficiency of the factual bases relied upon by the president in declaring martial law and/or suspending HC. The problem with this is that there is a strong likelihood that the Court will accord great weight to the executive department's finding of necessity (the Constitution says [1] there is an invasion and public safety requires it or [2] there is a rebellion and public safety requires it), either in subservience to GMA or what amounts to the same thing, in deference to another co-equal branch of government. As the Court ratiocinated in David in finding factual bases for GMA's Presidential Proclamation No. 1017 - declaring a state of emergency - "Owing to her [GMA] Office’s vast intelligence network, she is in the best position to determine the actual condition of the country."

I would like to believe GMA would be wise enough to cover her base if and when she invokes her commander-in-chief powers by seeing to it there would be sufficient basis for martial rule. In addition to this it would be safe to assume that she would also see to the appointment of sympathetic justices in the Supreme Court, where she is in the enviable position of filling almost half of the Court's membership as several of them retire before her term ends.