PP 1017 is Partly Constitutional.

In a previous post I predicted that the Supreme Court would probably declare Proclamation No. 1017 constitutional: “On its face the document appears sound and probably will survive a constitutional challenge.” It turned out I was correct – well, almost. In Randolf David, et al. v. Gloria Macapagal-Arroyo, et al. (G.R. No. 171396) the Supreme Court held:

PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation.

Previously, I wrote, “On my part I don’t read the constitution as requiring the president to proclaim martial law in cases of rebellion and invasion before she can call out the armed forces. The way I see it it’s optional on the part of the President to proclaim martial law in cases of rebellion and invasion. The Constitution simply says that if she thinks it necessary she can call out the armed forces in cases of lawless violence, rebellion and invasion, with or without proclaiming martial law. That’s her choice and she has a constitutional right to it.” That’s not exactly how the Supreme Court ruled but at least it did say that PP 1017 is not a declaration of martial law:

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law.  It is no so.  What defines the character of PP 1017 are its wordings.  It is plain therein that what the President invoked was her calling-out power … Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.

In a TV interview I opined that if there is anything unconstitutional in PP 1017 it will have to be that part that talks about enforcing “obedience to all the laws and to all decrees, orders and regulations promulgated by me [i.e., the President] personally or upon my direction…” I thought this was too vague and could lead to abuse. It turns out my suspicions were more or less right on target. The Supreme Court ruled that –

… the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate “decrees”. Legislative power is peculiarly within the province of the Legislature.  Section 1, Article VI categorically states that “[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives.”  To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees.

Of course, PP 1017 is open to abuse by those who invoke its authority. But the fault then lies with those who seek to implement it in a way not countenanced by the words of the proclamation itself. The Supreme Court held –

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused[135] and may afford an opportunity for abuse in the manner of application.[136]  The validity of a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.[137]  PP 1017 is merely an invocation of the President’s calling-out power.  Its general purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion.   It had accomplished the end desired which prompted President Arroyo to issue PP 1021.  But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens’ constitutional rights.

I am glad that this one is more or less behind us (although the country will be debating this for weeks until the next issue comes along, and although the decision is technically not yet final). I think the Supreme Court did a fine job balancing the interests of liberty (“without which, law becomes tyranny”) and the interests of law (“without which, liberty becomes license”). I was pleasantly surprised by the discussion in the decision of several political theorists on the power of the President in times of emergency: John Locke, Rousseau, Machiavelli, John Stuart Mill. For that alone it deserves to be printed out even if it means more than 70 pages of bond paper! Although a number of people won’t be happy with this decision, I for one found it very educational. Next week I’ll be lecturing on the powers of the president in my constitutional law class and of course PP 1017 will be the highlight. I’m looking forward to a lively discussion.

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