Saturday, February 25, 2006

Proclamation 1017

This isn’t the first time that Arroyo called out the armed forces pursuant to the Executive Power under Section 18, Article VII of the Constitution. The Supreme Court had occasion to rule on the same in the case of Sanlakas v Reyes (GRN 159085; February 2004).

The Sanlakas case delved on the President’s declaration of a State of Rebellion, in Proclamation No. 427, which was issued in the wake of what we now call the Oakwood Mutiny. The issue which the Court had to resolve was: Whether the President is authorized to declare a State of Rebellion.

The answer is YES. The Court ruled that… “the Commander-in-Chief powers are broad enough as it is and become more so when taken together with the provision on executive power and the presidential oath of office. Thus, the plenitude of the powers of the presidency equips the occupant with the means to address exigencies or threats which undermine the very existence of government or the integrity of the State”.

Point is, the President has the power to declare anything, especially since the Proclamation didn’t really do anything except proclaim to the world that there was a State of Rebellion in the country. The Court called it a superfluity. She didn’t need to Proclaim it. It was within her powers to declare such a State.

Okay, no problem. Anyway, the Court ruled on that issue when it was already moot and academic. The President had already declared that the State of Rebellion had ceased.

What about this Proclamation 1017 that was foisted on us Feb 24th? Again, its bases are: the Commander-in-Chief Powers of the President and the temporary takeover of businesses provision in Article XII of the Constitution. Let’s deal with those two in seriatim.

First, as to the Commander-n-Chief powers. Section 18, Article VII of the Constitution provides that:

Sec. 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. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. 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.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Section 18 gives the President three powers as CommanderinChief: 1.) the power to call out the Armed Forces; 2.) the power to suspend the privilege of the writ of habeas corpus; 3.) the power to declare martial law. (Sanlakas v Reyes, supra.)

Supposedly, what we’re concerned with, in Proc 1017, is the first power, the power to call out the armed forces. This power is vested on the President to exercise at her own discretion. Congress can’t revoke any act based on this power; the Supreme Court can’t touch it (unless the President exercised it with Grave Abuse of Discretion- Section 1, Article VIII, Constitution).

Okay. But what exactly does this power mean?

Its net effect, as explained by Fr. Bernas is that the President is the supreme military authority. She can direct the movements of the military forces, and to deploy them in the manner most effectual to harass, conquer and subdue the enemy.

This power is all the more necessary whenever the State has to defend itself.

There are two criteria for the exercise of this power:

1.) Whenever it becomes necessary;
2.) to suppress lawless violence, invasion, or rebellion.

Okay. We shouldn’t have any qualms with that. But are the criteria fulfilled? We can’t really ever tell because we don’t have access to Intelligence. However, we can possibly check its use by the acts that the government does to enforce it.

What about this statement that warrantless arrests can be made? The Constitution doesn’t say that it allows that. Before arrests can be made, the Executive should have to first apply for a warrant of arrest.

The only time when you can be arrested without a warrant is when you’re caught in the act, or red-handed.

The catch is, as Fr Bernas (Ateneo) and Dean Valdez (FEU) were pointing out the whole day, rebellion is a continuing crime. So, even when you’re at home and taking a bath or you’re in the john, you can still be arrested without a warrant, so long as you’ve been in the act of committing rebellion.

Next. Can the government take over businesses temporarily?

The basis for that supposition is Section 17, Article XII of the Constitution.

The problem is, this provision is under the Article on National Economy and Patrimony. So it makes sense to interpret it as being effective only when the National Emergency is Economic in nature. The whereas clauses of the Proclamation say that the Proclamation was issued mostly for reasons of national defense. As to whether the supposed "destabilization" rumors are affecting the economy, I distinctly remember the government crowing about our economic performance of late, so I don’t really see how this provision applies.

As of this writing, the offices of the Daily Tribune were raided (see the prohibition on the carrying of propaganda by the media and this warning against networks). The Tribune isn’t exactly all praises for this administration. But I still don’t know why it should be raided. I suppose the Executive will justify its raid on the temporary takeover of businesses provision. Don’t get me wrong, but I am reminded of a time three decades ago when some of the things that seem to be happening today seem to be similar to what happened then. And way back when, it wasn’t called a State of Emergency, it was called Something Else. That Something Else, is precisely why our present Constitution was written the way it is. The President has the power to declare that Something Else, but Congress can revoke the declaration. There are checks and balances (the Supreme Court can also review the factual basis). And there are safeguards ie, the Constitution remains operational, and the civil courts retain their jurisdiction over civilians.

Of course, if that Something Else is named Some Other Thing, such as a State of Something Other, then we’ll all be lolling about confused and witless, not knowing whether Congress has the power to revoke this… Something Other.

Who was it who said that, “I may not like what you say against me, but I will defend your right to say it.”?

Section 17, Article VII (Constitution) says, "The President… shall ensure that the laws be faithfully executed." Those laws include the Bill of Rights, which include the Freedom of Speech and our rights against Unreasonable Searches and Seizures, and the Protection of Life, Liberty and Property without the Due Process of Law." Shall. The President Shall.


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