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.

State of Emergency

Woke up late at 0730h, looking for my Civil Law Review Outline. Class is at 1400h.

Then people started texting me that there were no classes today.

Okay.

I switched on the news. Wow.

General Lim is being detained for asking permission to go join the rallies. I think the government is saying that there was a coup.

Granted that freedom of speech is restricted for men in the armed forces, it was still shocking to hear of people in the military who actually wanted his/ her Commander-in-Chief to step down. You have to ask why.

Then later, while I was having a very late breakfast, it was announced that the President had just issued Proclamation No. 1017, declaring a State of National Emergency. Immediate confusion. Martial Law?

Mike Defensor was on air to say that what this means is…

1.) Some people will be arrested without need for a warrant of arrest;
2.) Government can takeover certain businesses.

Okay.


If you want a definition of irony, then I don’t know how it can not be any clearer. Mind that it’s the twentieth anniversary of People Power tomorrow.


At around noon, Sec. Bunye held a press conference and gave the basis for Proclamation 1017:

1.) Section 18, Article VII, Constitution and,
2.) Section 17, Article XII of the Constitution.



Section 18, Article VII states…
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….



Section 17, Article XII of the Constitution says…
In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.


The prudent man asks: Where is this lawless violence, invasion, or rebellion (Sec 18, Article VII, 1987 Constitution) that justified the President in calling out the Armed Forces? What makes it necessary?

What is this “national emergency” that we’re in? Does the public interest require the takeover of businesses?

Warrantless arrests? Section 2, Article III of the Bill of Rights says that people have the right “to be secure in their persons… against unreasonable searches and seizures.” We cannot be arrested without a warrant of arrest (unless the person is caught red handed, or in flagrante delicto).

And you know what? Even if the President actually declares martial law, which supposedly this State of National Emergency is not, “A state of martial law does not suspend the operation of the Constitution….” (Section 18, Article VII) So, what is this thing about arresting people without warrants?

Government takeover of businesses? First, the government will have to prove that there is a national emergency. A national emergency, meaning a real one, not one that is only in its head. Second, the government will have to show that the national interest requires the takeover. I don’t know if it’s just me, but I look at this provision as one envisioning a circumstance where the public interest is being subverted because there is a monopoly in the operation of utilities. Third, this may actually be repugnant to the Constitution. “No person can be deprived of life, liberty and property without due process of law….” (Section 1, Article III, Bill of Rights). Wow. if I were a media company, I'd actually be in a quandary and debating whether I should continue not to be remiss in my duties as a journalist because, wow_ the government can actually take over my business...?


When Secretary Defensor spoke in emotionless tones of…

1.) Warrantless arrests, and
2.) Takeover of businesses….

What sprang to my mind is: Martial Law? Is it? It’s dangerous to use that term because under the Constitution, under the same provision that the government is quoting (Section 18, Article VII), Congress can revoke the imposition of Martial Law; and, the Supreme Court can review the sufficiency of Martial Law and strike it down as unconstitutional if need be.


Okay. As to what this State of Emergency really is, well, we’ll see.


(Happy EDSA day.) Have we forgotten what it's about? Nakalimutan mo na ba?

de facto officer

Something occurred to me this afternoon.

We were discussing the difference between de jure and de facto officers in Poli Law Review.

De jure officers are public officers who have lawful title over the office. Meaning, they were appointed or elected in the proper course of things. But they may not have possession of the office because of a confluence of events such as, well, being unlawfully separated from it or by being ousted from the office.

De facto officers meanwhile, are those persons who do not have lawful title over the office but have possession of the office, and are holding it by mere acquiescence of the people. Not having lawful title over the office means that something is wrong or irregular with their appointment or with the way they were elected into office (among other things).

Which got me thinking….

Can you give an example of a de facto officer?

Let me see….

No lawful title. Either faulty appointment or fraudulently elected… but is holding office only with the mere acquiescence of the people.

Fraudulently elected.

Holding office.

Only holding it because of the acquiescence of the people.

Gloria? Haha. By jove.

;)

Run-over, mudslid, and a trophy

Sad news from this side of the UP Fair. Word has been going around that a high school student was killed in the fair grounds. I have to warn you that this is unsubstantiated, meaning that I don’t have a source to name- or maim, if it’s not true. But I texted and asked everyone I know and everyone confirmed that it was true.

From the accounts. A boy was lying down in the Sunken Garden, sleeping behind a Pajero (from other accounts, it was an F150), when its owner decided to leave the Fair grounds by backing up….

Everyone swears this story is true. If you have a link which confirms it, I’ll sure appreciate the URL. (Thanks.)


In sports news, the Red Bull Barakos won the SanMig Fiesta cup Sunday evening (Feb 19, 2006), and I’m waxing sentimental about it.


Finally. I don’t know what to say about the Leyte mudslide. I’m sure most everyone has already gone on and blogged about it. I offer my condolences. For those who want to offer help, I think MLQ3d knows where, how we can help.

Even your local parish, for those who are Catholics are accepting donations.

quickly

Quick posts.

I outlined the Transitory Powers of the President in the draft Consti being prepared by Congress (based on Bernas’ column) in my Dictum blog.

Next. LK and I set up a blog on all things basketball. (Seen the PBA lately? I kind’a miss having Ginebra in the Finals. The last time they were there, it was damn near impossible to get a ticket. Hay.)

mystery

I have this habit of texting people whenever I’m befuddled with questions that can never be answered.


What is God? Is he an alien?

Who created him?

Is he just an artificial construct created just to make people toe the line? (If you don’t, you burn in Hell.)

Which begs the question… Did We in fact, create God?

Why are we here? Who are we?


Interesting lines of inquiry, when you’ve nothing to do. Or when you’re seeking for a good excuse to quit doing any kind of work. Not for purposes of calming the Boss, of course, but simply to justify your momentary indolence. (As in, I really need a coupl'a minutes alone to sort things out.)


Some few years ago, while I was in the midst of doing nothing, probably lying down, supine, on the floor, lazily humming to myself, I came upon this theory which spelled out for me one possible reason why there are many religions.

I mean, your basic kinds of religion espouse the same thing: Be a good man. Or woman. That’s it. Why did there have to be so many of them when essentially they’re all the same? Only the manner of worship and of practice differ. Maybe some knots and ends will vary, but at the core, they’re the same, with the same message: Be a good guy/ girl. Or else.

A re-imagining.

Millennia ago, when people were already in existence and when they’d already formed communities, an announcement was made. Whoever made the announcement, or how it was made is already lost, even by tradition.

The announcement went...


Hear ye, hear ye. (Or something of the sort.)

God wants to meet you peoples of the world. He wants to know your names, and ask of your stations.

And- why don’t we agree on a few rules while we're already there?

PS

Send only one representative per community. We prepared food for 200 people only.

Oh, and, very important, bring paper and a pencil so that you can take notes. (Ballpens weren't invented yet.)


Of course, the peoples of the Earth didn’t know who this God was, but that thing about food sounded interesting. People lobbied for themselves to be sent as representatives. Some... they gave out money so that people will vote for them. Some shacked up with- sucked up to- the people who mattered. (Remember, only one was required per community.)

So. Each community around the world sent their own representative. These representatives braved scorching deserts, swam through lakes, built rafts to cross the perilous seas, and hacked their way through dense jungles so that they can all go to the agreed meeting place.

They brought paper and a pencil. (One guy brought a stone tablet. I think his name rhymed with Noses.)

One even brought two pencils. Just in case. (I think his name rhymed with Abernakunesasardebasaheeb-Garcia.)

So the people of the Earth met in this one place, and they were introduced to God, who told them that He created them. They wrote this down.

They also all agreed on certain imperative rules such as: don’t lust after your neighbor’s wife (or wives), don’t hurt each other, don’t kill each other, and most especially, brush your teeth when you wake up, before you start talking to other people, etcetera. Or else. (Cue lightning. Roar of thunder.) They also wrote these rules down.

After the representatives partook of the free meal (which only consisted of a bottle of juice and a crappy sandwich), they went back to their respective communites so that they can report what was told in the meeting to their fellows, some men muttering, "Whatthe?!? I shacked up with Mayor Julio just so I can eat a crappy sandwich?" (Back then, every man voted into office became known as "Mayor Julio". Back then also, women weren't voted into office. Because they were smart. They didn't run for office. If they ran and won and became known as "Mayor Julio," they won't ever ever get married. I mean, I would Never marry a Mayor Julio. Unless she maybe looked like Naomi Watts.)

On the way back, they braved scorching deserts, swam through lakes, built rafts to cross the perilous seas, and hacked their way through dense jungles so that they can all go back home.

Unfortunately, for the lot of them, as they attempted to get home, they lost a few sheets of the paper on which they wrote their notes. For some of the representatives, the paper on which they wrote was ruined by rain, some partially, some totally. Some representatives, they were chased by dogs. When they were later asked what happened to their notes, they just answered matter-of-factly, The dog ate it. And it was probably true. (The Noses guy, even though he wrote on and was carrying stone tablets, he returned the tablets to his people intact. I heard he did this by_ get this, parting the sea and not having to row over it. Haha.)

The result of which was that when these representatives returned home, they each told their fellows what they could only recall of the meeting, because their notes were either incomplete or they'd gone kaput. And really_ no one will be the wiser. (Some representatives actually didn't bring enough paper, and the other reps there who had extra pieces of paper wouldn't give them any, so they wrote in small unreadable case to try fit everything in.)

Human memory being what it is, some of them forgot some details, others added to what was said, some recalled an entirely different set of facts. And so, for some communities, they were told that they were allowed to marry only once; for others, they were told that they could marry lots of times; for others, all they were told to do is lust after one another, and not after another's wife (or wives). That’s it.

Some reported of one God creating them, others reported of two, or of three, some even reported that there were a host of Gods.

But the substance remained the same which is that: 1. Peoples are beings who were created; and, 2. that God created them; and finally, 3. that they had better be good. Or else.

(Of course, some of the representatives reported that there was no God, that the whole thing was simply a ploy to market bottles of juice and crappy sandwiches.)


The point?

Ah. I was texting and asking most everyone I knew why life had to be confusing and hard and crappy (yes, like the sandwiches).

I received a host of answers, but the best answer of which went…

Life is a mystery to be lived, not a mystery to be solved.

Bravo.

from the NBA to the Freedom of Speech and Expression, or: How did it get there?

Reading LK’s exposition on the sports theme….


She and I were talking last night, about how it would be nice to get a job in the NBA. Now, don’t get me wrong. I’m a certified Ginebra fanatic (too bad they lost this conference), but there’re just so many things to do in the NBA.

I’ll digress. Every so often, when my friend, car15full_auto, and I would meet we’d always go on and talk about writing a lot of stuff. Car15, who works for an NGO, told me to mind the agri funds while the last election period was going on. Surprise, surprise. There’s 780 million pesos of it that’s unaccounted for today.

Where was I? Ah. Car15 first led me to Gary Allen’s None Dare Call it Conspiracy, and John Stormer’s None Dare Call it Treason. Not that I’ve read them from cover to cover. But their basic premise is this: the American Government is fooling its citizens some of the time through an elaborate conspiracy which would amount to treason if these acts were done by ordinary citizens.

Granted, the folks in Our government are too fickle in their loyalties to make up even one lasting conspiracy, so I see little application for that book here. Although you can make a case for its having an indirect application because America, big as it is, whatever it does and decides to do should affect everything around it (read: everyone).

Where was I…?

Ah, the point. The book is important because it shows you how free the US is, in terms of the Freedom of Speech and of Expression.

We have the same thing ingrained in Our Constitution, somewhere in the Bill of Rights (Sec 4, Art III, I think), which says, “No law shall be passed abridging the freedom of speech, of expression, and of the press….” Okay. No law Is being passed. Anyway, the Supreme Court will shoot that down before it becomes effective, HOWEVER, you don’t need a law to stifle your freedoms of speech, etcetera, etcetera. Someone Speaks and it's not the Supreme Court that does the shooting. You don't need a law to gag your Freedoms. You only need to be passive. You only need to not care.

How many journalists have already been killed this year? Two, by my count (and I have newspaper backlogs), and it’s not yet even Valentine’s.

The point? Ah. Much as we would malign the US for its many misdeeds, you’d have to admit that they’re freer there. (Freer. Not that they're totally free.) Can you imagine speaking out, nah, publishing a book against the officials of this country (especially the local officials) and not be visited by Harm?

I mean, even if you’re the bravest man on this planet, if you have a family or loved one somewhere, there’s your weakness right there (not a subtle ad for Firewall).

I was telling Car15 that for anyone to be an effective Graft-Government buster, you’d have to be big-balled and, more importantly (every one of us is afraid of something), alone. So alone that if you die without leaving a last will and testament, your properties go to the State.

Hay. (See also Dom’s entry.)


Where was I? Ah, because in the NBA, you could travel with the team and write, and do nothing but. You could analyze plays, maybe join the staff, maybe mix some math in to make your articles look scientific (and they’ll be). Plus, I won’t have to feel guilty when I watch the games (like I do now.) And the only shooting that goes on there is when the ball drops into the basket. Freer.

radyo, TV, and the cold

I was caught radyo-ing to Pink yesterday during Civil Law Review. The prof told Pink to sit down and insisted that I finish the recitation. Okay.


The radyo is one of those things that are native to law school. Law classes here are usually conducted by using what we call the Socratic Method, which in officialspeak is something akin to some sort of discussion going on between the professor and the student. This is supposed to facilitate learning, making it two-way. Thus, both the teacher and the student should (might?) learn something from each other.

In truth, the Socratic Method the law schools use is a modified version. What really happens is, the professor shuffles cards which have the students’ names on them, picks one, and asks the unlucky student to recite. It’s really closer to a “Question Hour” where the teacher asks and the student answers. The number of questions asked may be as few as a single question or as many as a barrage of questions. (A professor of mine times recits at thirty minutes per student.) The student isn’t supposed to look at his or her notes while reciting. When someone does, the teacher makes the necessary deductions from the grade. Or the student is quietly or severely reprimanded, depending on the professor’s wont.

Most of the time, your seatmates will try to be helpful and whisper the answer to you when you’re (the student who’s reciting is) momentarily befuddled (or totally out of it). That’s radyo. It’s disallowed. But a lot of students do it anyway, for reasons of comity. Translation: I watch your back, you watch mine. When it’s their turn to recite, they’ll be appreciative of whatever help they can get.

There’s an urban legend going around the Halls of Malcolm on the art of the radyo. (Yes, it's an art.) One evening, a student who was not able to study for the meeting’s coverage was called by the professor to recite. Before the prof could start to ask questions, the lights went out. The professor insisted on holding classes. He started asking questions. Since the guy called to recite didn’t know zilch, and because it was dark anyway, his seatmate answered the questions for him.

There is also a variation of the radyo which we fondly call TV. TV is when you write the answer in a piece of paper and you shove the answer to the seatmate. Quiet, and, if executed properly, surreptitious.

Yesterday, the teacher caught me for both radyo-ing and TV-ing. Suffice it to say that I was shocked. Most everyone did it; but I was the only one caught. Argh. For a couple of minutes, I was too flustered to answer correctly the questions the prof threw at me.

The silly thing about it is, the answers I was supplying Pink were all wrong. She was listening to my radyo and looking at my TV’s and shaking her head. Wrong, she was mouthing. She thought of the correct answers herself. Hay.


Finally…

The mornings have been cold of late. I don’t know if it’s because we’re having an extended winter somewhere or if it’s the greenhouse gases finally making their presence known. But I really shouldn’t be complaining. We’ve one more excuse not to wake up too early in the mornings. Yawn.

stampede

54 to 66 deaths in a stampede in the ULTRA stadium in Pasig this morning. Apparently, thousands of people lined up for days to participate in a Wowowee draw. According to some reports, someone shouted “bomb” and the people scattered in all directions.

Whatever was the cause of the stampede, what’s alarming is that when you read the reports, what immediately becomes obvious are the words, “lined up for two days,” and the figures: 30,000 people. And that, as we’ll all admit, is just the tip of the iceberg.

Read the newspapers; Arroyo is all over the place, bragging about the appreciation of the Peso. Something I can’t quite appreciate. Nor will others, I bet. Especially since prices have been rising. And, as you can see, people are risking life and limb to get some dole outs, even if they have to wait in line for two days.

Meanwhile, if you take a look at the Daily Tribune, you’ll find that there are still some questions that this administration needs to answer, such as, What happened to the P700million fertilizer funds that went AWOL on the eve of the elections; and all those bugging questions about the elections; and the bugggings during the elections! Migod. It’s like we’re all being transformed into playthings and pawns and ways to get rich and powerful easy. It’s not easy; it’s not easy to be such a poor country, with poor people. I don’t know how to make those in power understand.

Is that the nature of power? Mind the clichés. We’d better get rid of those seats in Malacanang. They have some sort of mind… control power over those sitting on them. They become greedy.