My good friend, Atty. Ralph Sarmiento (Professor of Constitutional Law, University of St. La Salle, Bacolod City; Fulbright Institute Fellow on the U.S. Constitution, Temple University, Philadelphia, Pennsylvania; MCLE Lecturer; and Bar Reviewer) who has more knowledge of the law in his little finger than I have in my whole body has written an article on PP 1017 which I found so impressive (even though it contradicts my opinion) that I decided to post it here, with his consent of course.
Proclamation No. 1017 Must Fall in the Temple of Constitutionality
By Atty. Ralph A. Sarmiento
Presidential Proclamation No. 1017 was already lifted by Malacañang, yet I am still compelled to write this paper because it is capable of repetition and must still be fought on principles. In fact, the President’s strategy is obvious and this is not the first time she had done it. She would exercise functions that are not ordinarily within the powers of the Chief Executive and then would lift them before the Supreme Court could exercise its power of judicial review.
The first time was on May 1, 2001 on the day of the celebration of the Labor Day. She issued Proclamation No. 38 stating in part that:
“NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby recognize and confirm the existence of an actual and on-going rebellion compelling me to declare a state of rebellion.
“In view of the foregoing, I am issuing General Order No. 1 in accordance with Section 18, Article VII of the Constitution calling upon the Armed Forces of the Philippines and the Philippine National Police to suppress and quell the rebellion.”
Four petitions were immediately filed challenging the constitutionality of said proclamation and the general orders issued pursuant thereto. However, five days after the issuance of the said proclamation, it was lifted thus prompting the Supreme Court to take a prudential stand and dismiss the petitions on the ground of mootness. The Supreme Court had ruled that it was no longer feasible to look into the sufficiency of the factual basis of the exercise of her powers under the commander-in-chief clause, Proclamation No. 38 having been lifted. (Lacson, et al. v. Perez, et al., G.R. No. 147780, May 10, 2001)
The second one was during the Oakwood Mutiny on July 27, 2003, where she issued Proclamation No. 427 stating in part that:
“NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to declare a state of rebellion.
“In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard to constitutional rights.”
This time around, however, the Supreme Court, smelling the President’s sinister strategy, had taken a more pro-active role pursuant to the symbolic function of judicial review “to set forth in language clear and unmistakable … for the guidance of lower court judges the controlling and authoritative doctrines that should be observed” when the matter involves the protection and preservation of basic constitutional rights. (Eastern Broadcasting Corporation v. Dans, G.R. No. L-59329 July 19, 1985). The Supreme Court therefore ruled in SANLAKAS and Partido ng Manggagawa v. Executive Secretary, et al., G.R. No. 159085, February 3, 2004, that “to prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the validity of the declaration of a state of rebellion in the exercise of the President’s calling out power, the mootness of the petitions notwithstanding.”
In Sanlakas, the Supreme Court held that the 1987 Constitution does not expressly prohibit the President from declaring a state of rebellion and that in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. Finally, true to its mandate to probe only into the legal consequences of the declaration, the Supreme Court ruled that such a declaration was devoid of any legal significance and that it was deemed not written for all legal intents.
The wordings of Proclamation Nos. 38 and 427 are quite similar in that they simply confirm the existence of a state of rebellion and they both call out the Armed Forces pursuant to Article VII, Section 18 of the 1987 Constitution to suppress and quell the rebellion. It is notable that Proclamation No. 427 went on further to add a specific guarantee that there would be due regard to constitutional rights, even if it would just be a lip service.
Proclamation No. 1017 is therefore the third time for Gloria Macapagal-Arroyo to call out the Armed Forces pursuant to the commander-in-chief clause but this time, she used the term the term and style “state of emergency” instead of a state of rebellion.
A state of emergency takes its roots from the Roman law concept of justitium, which is equivalent to the declaration of a state of exception. It was usually declared following an emperor’s death and in cases of invasions where the sovereign claimed for himself the auctoritas (Latin word for “authority”) to augment his powers as may be necessary to the rule of law. Ironically, this is the same concept that is prevalent Fascist’s Duce and Nazi’s Führer doctrines. In Nazi theory, the Führer, when he exercises auctoritas has no use whatsoever of “written law”, as he is himself the incarnation of law.
A declaration of a state of emergency is not a mere characterization of the fact of the existence of an emergency which does not add anything to the powers of the President, as is claimed by the President’s loyal cohorts, like her new Chief Legal Counsel Eduardo Antonio Nachura, her Justice Secretary Raul Gonzalez and Chief of Staff Michael Defensor. They should know that declaring a state of emergency has a meaning in jurisprudence and history and carries with it some concrete legal implications. You don’t just declare a state of emergency in vacuo. A declaration of a state of emergency may suspend certain normal functions of government, may work to alert citizens to alter their normal behavior, may order government agencies to implement emergency measures, or worse, it may be used as a rationale to suspend civil liberties.
In other countries, however, the declaration of a state of emergency as well as the conferment of emergency powers to their respective Chief Executives is usually governed by law. Canada has passed the 1988 Emergencies Act. Egypt has the Emergency Law of 1958. France has the Emergency Law of 1955. The United Kingdom has the Civil Contingencies Act of 2004. In Hungarian Constitution, it is their Parliament that has the power to declare a state of emergency. Their common denominator is that the declaration of a state of emergency that justifies the conferment of powers not normally exercisable by their chief executives is governed by law. In the Philippines, we have no such law.
On February 24, 2006, Gloria Macapagal-Arroyo issued Proclamation No. 1017 stating in part that:
“NOW, THEREFORE, I Gloria Macapagal-Arroyo, x x x by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution x x x do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.”
Similar to Proclamation Nos. 38 and 427, Proclamation No. 1017 also invokes Section 18, Article VII of the 1987 Constitution. It also calls out the Armed Forces to prevent or suppress rebellion, and also all forms of lawless violence. The difference is that in Proclamation No. 38, we have seen on national television the angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulting and attempting to break into Malacañang – a clear case of lawless violence necessitating the use of the calling out powers of the President. In Proclamation No. 427, we have also seen on national television how some three hundred junior officers and enlisted men of the Armed Forces stormed into the Oakwood Premiere apartments in Makati City. But in Proclamation No. 1017, what we have seen on national television are only a bunch of people marching on the streets celebrating the 20th Anniversary of the 1986 People Power Revolt, a plain and peaceful exercise of freedom of speech and _expression and the right of assembly. We have not seen any lawless violence, except the violent dispersals of those peaceful exercises of fundamental civil liberties.
Proclamation No. 1017 is void on its face. By calling out the Armed Forces to enforce obedience to all decrees, orders and regulations promulgated by the President personally or upon her direction, Gloria Macapagal-Arroyo had clearly arrogated unto herself the exercise of emergency powers, including the power to issue decrees which will have the force and effect of law. This reminds us of Amendment No. 6 to the 1973 Constitution which has given the former Dictator Ferdinand Marcos to issue Presidential Decrees.
Emergency powers to issue decrees which will be enforceable as laws may only be exercised by the President pursuant to an express delegation that may only be made by Congress pursuant to Section 23(2), Article VI of the 1987 Constitution which states that:
“In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.”
Even Section 17, Article XII of the Constitution that is cited in Proclamation No. 1017 is a specific provision that relies on the afore-quoted Congressional powers in times of emergency. It must also be noted that Section 17 of Article XII speaks of the State, not the President as Commander-in-Chief, temporarily taking over or directing the operation of “privately-owned public utility or business affected with public interest” “when the public interest so requires,” during the emergency and under reasonable terms prescribed by it – clearly referring to the “declared national policy” and “restrictions” that may be prescribed by Congress pursuant to Section 23(2) of Article VI.
Section 17 of Article XII of the 1987 Constitution speaks of the State and not the President. It does not expressly confer any power or authority on the President. The dictum therefore of Justice Oliver Wendell Holmes in Springer v. Government of the Philippine Islands, 277 U.S. 189, May 14, 1928, should apply, that since the said section does not expressly and specifically vests power on the President or on the Judiciary, it must therefore “fall into the indiscriminate residue of matters within legislative control.”
One of the decrees issued by Gloria Macapagal-Arroyo pursuant to Proclamation No. 1017 is General Order No. 5, stating in part that:
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution x x x, and pursuant to Proclamation No.1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines and the Philippine National Police, to prevent and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.
GENERAL ORDER NO. 5 IS ALSO VOID ON ITS FACE. It calls out the Armed Forces and the police force to prevent and repress acts of terrorism and to carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. However, General Order No. 5 does not specifically define what acts of terrorism are. Note further that we have not yet passed the Anti-Terror Bill into law. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law (Connally v. General Construction Co., 269 U.S. 385, cited by our own Supreme Court Ermita-Malate Hotel and Motel Operators Assn., Inc. v. City Mayor of Manila, G.R. No. L-24693, July 31, 1967). Worse, General Order No. 5 gives the AFP and the PNP authority to carry out the necessary and appropriate actions and measures without however defining what these measures are. It confuses, confounds and misleads because overzealous members of the AFP and the police force, acting pursuant to such proclamation or general order, are liable to violate the constitutional right of private citizens. Definitely, to borrow the words of Justice Isagani Cruz in Ynot v. IAC, G.R. No. 74457, March 20, 1987, there is here a “roving commission, a wide and sweeping authority that is not canalized within banks that keep it from overflowing, in short, a clearly profligate and therefore invalid delegation of legislative powers.”
A law or regulation is void for vagueness and overbreadth when it fails to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent “arbitrary and discriminatory enforcement.” (Smith v. Goguen, 415 U.S. 566, March 25, 1974) Where a statute’s literal scope, unaided by a narrowing interpretation, is capable of reaching the guarantees of free speech, of the press, and of _expression, as in the case of Proclamation No. 1017 and General Order No. 5 in whose names, the Administration attempted to silence the media and the opposition, then it must fall heavily in the temple of constitutionality.
In issuing Proclamation No. 1017 and General Order No. 5, the President also had, in effect, amended Batas Pambansa Bilang 880, entitled “AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES” B.P. Blg. 880 delegates to local government officials the regulation of only the “time, place, and manner” of the exercise of free assembly to ensure public safety and convenience without the power to prohibit rallies. Therefore, for Gloria Macapagal-Arroyo to declare a “no-rally policy” pursuant to Proclamation No. 1017 is to contravene the clear language of B.P. Blg. 880, arrogate unto herself the prerogatives and powers of Congress, and impair the autonomy of local governments which are not subject to the “control powers” of the President.
PROCLAMATION NO. 1017 HAS PLACED THE COUNTRY UNDER A DE FACTO STATE OF MARTIAL LAW. In the name of Proclamation No. 1017, certain personalities have been arrested without judicial warrants, rally permits have been cancelled, all anti-government rallies have been prohibited, the Armed Forces have raided media establishments known to be critical of the Arroyo administration without search warrant and have stationed armed personnel to guard their premises. These acts glaringly show that the country has been effectively placed under a state of undeclared martial law by virtue of Proclamation No. 1017.
The issuance of Proclamation No. 1017 is a circumvention of the constitutional requirements for the imposition of martial law or suspension of the privilege of the writ of habeas corpus. If the President formally proclaims martial law or suspends the privilege of habeas corpus, she cannot avoid congressional and judicial scrutiny into the sufficiency of the factual and legal bases of such declarations. Under Section 18 of Article VII of the 1987 Constitution, such proclamation of martial law or suspension of the privilege of the writ cannot exceed sixty days, unless extended by Congress upon the initiative of the President. 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. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
The Constitution further requires that there must be an invasion or rebellion and public safety requires the declaration of martial law and the suspension of the privilege of the writ of habeas corpus. While Proclamation No. 1017 simply declares a state of emergency, its implementation however clearly shows that it effectively imposed martial law without following the constitutional requirements for its imposition.
PROCLAMATION NO. 1017 VIOLATES THE CONSTITUTIONAL GUARANTEES OF FREEDOMS OF SPEECH, OF THE PRESS, AND OF ASSEMBLY. Proclamation No. 1017 has been invoked by the government in revoking all rally permits and prohibiting the exercise of the individual’s right to freedom of speech, of _expression, and to peaceably assembly. It was also invoked by the authorities when they raided the publication office of the Daily Tribune. The Secretary of Justice and the President’s Chief of Staff had been making statements on national television asking people and the media not to make statements or not to publish things that fuels sentiments against the administration. They accuse the media of being irresponsible in its reporting and threaten it with charges of inciting to sedition.
While it is true that our 1932 Revised Penal Code punishes a crime of Inciting to Sedition, this is however of doubtful constitutionality when applied to a person who is exercising his constitutional rights to freedom of speech, of the press, and of _expression. The enjoyment of these rights cannot be punished. They are the keystone of all democratic institutions and their preservation and full enjoyment provide the best assurance against the destruction of all freedom.
An examination of the jurisprudential developments in democratic countries shows that the trend is to give the constitutional guarantee of free press the broadest scope and the widest latitude. As Justice Douglas puts it, “a function of free speech and press under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” (Terminiello v. City of Chicago, 337 U.S. 1, May 16, 1949)
The press is considered as the “Fourth Estate” of our democratic institution and to borrow the immortal words of Congressman Pedro Lopez in his sponsorship speech of R.A. 1289, which amended Art. 360 of the Revised Penal Code on libel, “the press must be unshackled in fulfilling their mission as the eyes, ears, nose, voice and conscience of our people.”
Therefore, the press, as the eyes, ears, nose, voice and conscience of the people, will always invite dispute and stir people to anger. This will always be the role of the press as the fourth estate of our democratic institution. Indeed, the constitutional guarantee of free press can only have its true meaning if used by a press that asks questions rather than just reports, that makes inquiries rather than just accepts things, and that criticizes rather than just conforms.
The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. (Justice Hugo Black in New York Times v. United States, 403 U.S. 713, June 30, 1971)
The raid on the offices of the Daily Tribune by police and the Director General of the Philippine National Police’s declaration that they will shut down or take over media entities not complying with standard regulations promulgated by them, purportedly Proclamation No. 1017 and General Order No. 5 are serious attack on press freedom. They are types of prior restraint anathema to press freedom in a democratic society. Thus, they come to court with a heavy presumption against their constitutional validity. (Carroll v. Princess Anne, 393 U.S. 175, 181, November 19,. 1968, Bantam Books v. Sullivan, 372 U.S. 58, 70, February 18, 1963; Freedman v. Maryland, 380 U.S. 51, 57, March 1, 1965)
Gloria Macapagal-Arroyo should remember that she rose to the Presidency in 2001 because of the people’s exercise of their freedoms of speech and of assembly to petition the government for redress of grievances. In dismissing the legal challenge to her assumption of the Presidency in 2001, the Supreme Court has held:
“In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President.” (Estrada v. Arroyo, G.R. No. 146738, March 2, 2001)
Mootness of the issue should not be an obstacle to the supreme court in exercising its symbolic function of judicial review. Even with the lifting of Proclamation No. 1017, the Supreme Court should still take cognizance of the matter and exercise its duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the President. It should still exercise its symbolic function of judicial review “to set forth in language clear and unmistakable … for the guidance of lower court judges the controlling and authoritative doctrines that should be observed” when the matter involves the protection and preservation of basic constitutional rights. (Eastern Broadcasting Corporation v. Dans, G.R. No. L-59329 July 19, 1985)
But more importantly, this symbolic function should be used this time to educate the person occupying the highest executive office in the land and her cohorts so that they would be reminded to accord full respect to our fundamental civil liberties.
She must be reminded that the survival of genuine democracy is made dependent upon the non-intervention of the government in the marketplace of ideas. The marketplace of free ideas should be forever free. They must be reminded of the of the immortal words of Oliver Wendell Holmes, Jr. Abrams v. U.S., 250 U.S. 616, November 10, 1919 that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
She must also be reminded that a public street is a public forum. Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. (Hague v. Committee for Industrial Organization, 307 U.S. 496, June 5, 1939)
Finally, she must also be reminded of the value of free speech, free press and free assembly, even in the face of threats for the overthrow of her administration. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. (Chief Justice Charles Evans Hughes in De Jonge v. Oregon, 299 U.S. 353, January 4, 1937)