Sunday, February 26, 2006

Pres. GMA's Emergency Proclamation: A Marcosian legal tool to stay in power



CODAL condemns Pres. Gloria Arroyo's latest violation of the
Constitution by issuing Proclamation 1017 declaring a state of
emergency. This proclamation is no different from the proclamations
issued by Pres. Ferdinand Marcos during martial law in his attempt to
stay in power despite the peoples revulsion to his reign.

Firstly, Sec. 17, Art. XII which was used as basis by Proclamation
1017 is a martial law provision initially crafted by Pres. Ferdinand
Marcos during his reign to empower him to take over private
businesses. Sec. 17 provides that:

'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

Pres. Arroyo is not the State and there is no way that the
Constitution could have granted the President granted the plenary
powers of a "state" especially after the peoples' martial law
experience with Pres. Marcos. The intent of the 1987 Constitution,
which is steeped in provisions ensuring congressional checks to the
powers of the President, is to grant such power to the President only
upon a law passed by Congress. The 'state' in Sec. 17 therefore means
Congress issuing a law and the President implementing such. It is
impossible for the 1987 Constitution to have granted Pres. Arroyo the
unbridled power to take over private businesses without Congressional
approval. It must be noted that congressional approval is required
even if she exercises her much bigger martial law powers.
Furthermore, this is clearly reflected in Sec. 23 (2) of Art. VI which
expressly provides for emergency powers:

Sec. 23 (2) "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.

Since the Constitution requires congressional approval of the
President's bigger powers of martial law and other national emergency
powers, Proclamation 1017 cannot survive legally and constitutionally
without legislative participation. Clearly, there was no law or
congressional concurrence with Proclamation 1017 which was
unilaterally declared by Pres. Arroyo. After attacking the
legislative power of Congress through EO 464, Pres. Arroyo has, like
Pres. Marcos, again arrogated unto herself one more legislative

Secondly, using Sec. 18, Art. VII of the Constitution does not grant
constitutionality to Proclamation 1017 not only because a 'state of
emergency" is not found in that section but also because of the
absence of factual basis for such. Sec. 18 states 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 laws or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress.

Nowhere in this provision is a "state of emergency" that grants her
additional powers mentioned. Since the Constitution expressly
provided for 'emergency' powers in other provisions, she cannot
proclaim such emergency under Sec. 18. Should Pres. Arroyo insist
that Proclamation 1017 is based under her martial law powers in Sec.
18, then, such proclamation cannot be deemed to have granted her
additional powers. She is just giving notice that she is calling on
the armed forces to suppress rebellion or lawless violence within the
framework of her current and existing powers prior to the
proclamation. She cannot interpret this as a grant of additional
powers to suppress rallies, arrest without warrants, or take over
media facilities.

Furthermore, there must be lawless violence, rebellion or invasion
before the President may call out the armed forces. Rallies are not
"lawless" violence but are legitimate exercise of the peoples' rights
under the Constitution. By deeming rallies as 'lawlessness' Pres.
Arroyo has, like Pres. Marcos, illegally considered the exercise of
constitutional rights an attack on her and national security.

Lastly, since the proclamation grants her no additional power, the
Constitution and the Bill of Rights are not suspended during a state
of emergency as the Supreme Court has said so in Sanlakas vs. Angelo
Reyes, to wit:

Should there be any "confusion" generated by the issuance of
Proclamation No. 427 and General Order No. 4, we clarify that, �, the
mere declaration of a state of rebellion cannot diminish or violate
constitutionally protected rights. Indeed, if a state of martial law
does not suspend the operation of the Constitution or automatically
suspend the privilege of the writ of habeas corpus, then it is with
more reason that a simple declaration of a state of rebellion could
not bring about these conditions. At any rate, the presidential
issuances themselves call for the suppression of the rebellion "with
due regard to constitutional rights."

Malacanang's and NTC's regulation of media: Illegal

The violent dispersal and the arrest of rallyists such as Prof. Randy
David and Atty. Argee Guevarra are clearly without legal basis. The
right against arbitrary arrest under Art. III of the Constitution has
not been suspended. Pres. Arroyo's declaration that 'all rally
permits are revoked" is also illegal considering that Mayors and local
governments are the ones granted the power to grant or revoke these
permits under the law. Freedom of assembly is still operative.

The sanctions threatened against media with government closure or
takeover for 'covering' opposition activities is an attack against
press freedom, since freedom of the press still subsist. The
warnings by executive officials are therefore illegal and subjects
these officials to criminal and administrative liabilities.

Pres. Gloria Arroyo has totally become a "Pres. Marcos", on the very
day that Pres. Marcos was ousted from power twenty years ago today.
CODAL demands that Pres. Arroyo to respect the Bill of Rights and the
Constitution despite her Proclamation. Since Proclamation 1017 does
not grant her additional powers but merely causes further instability,
we demand that she withdraws Proclamation 1017. CODAL calls on all
lawyers to come out openly and publicly criticize the violation of the
Constitution and peoples' rights. CODAL calls on lawyers to offer
their legal services to the people who will become victims of the
implementation of Proclamation 1017. CODAL also condemns the arrest in
particular of Atty. Argee Guevarra who was not only exercising his
constitutional rights but also practicing his profession as a lawyer.
CODAL urges members of the legal profession, including law students to
come out and be part of the peoples assertion of their basic
constitutional rights against the impending threat of martial rule.

Reference : Atty. Neri Javier Colmenares, Spokesperson
Date : 25 February 2006

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