Saturday, March 04, 2006

GMA exposed herself as a legal ignoramus

Proclamation No. 1017
First posted 01:42am (Mla time) Mar 04, 2006
By Isagani Cruz

WHOEVER advised President Gloria Macapagal-Arroyo to issue her Proclamation No. 1017 must have unwittingly committed a monumental blunder or wickedly persuaded her to slit her political throat. Worse, she conceivably just ignored her knowledgeable advisers, insisted she knew better than they, and went ahead with her illegal act.

With several so-called two law experts in Malacañang, the secretary of justice in the Cabinet, the solicitor general at her beck and call, and other lawyers in her camp, she insolently issued her decree and exposed herself as a legal ignoramus. Even a law freshman would have informed her that her proclamation was a self-serving and unlawful impertinence.

The more enlightened members of the Philippine bar shared the correct consensus that her declaration of a state of national emergency was null and void, at best only her own factual assessment without legal or binding effect. Even if disputably correct, it does not confer on her additional sanctions to those available to her under present law.

She asserted the arbitrary power to make warrantless arrests from her mere declaration of a national emergency. That claim was absurd. There is nothing in the Constitution that authorizes that imposture, but that absence did not deter her. Her acts suggest her arrogant belief that she is above the law and may disregard it at her imperious pleasure.

The deteriorating peace and order does not automatically convert Ms Arroyo into a remedial dictator. In the leading Emergency Powers Cases, 84 Phil. 368; 92 Phil. 603, Chief Justice Ricardo Paras said, "Emergency itself cannot and should not create power." She can exercise emergency powers only if they are entrusted to her by Congress after first ascertaining the existence of the emergency to justify their grant.

Art. VI, Sec. 23(2) of the Constitution explicitly provides: "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." Congress alone can grant emergency powers to the President and define the national policy its constitutional delegate shall implement.

Ms Arroyo's defenders said that her proclamation was based on Art. XII, Sec. 17 of the Constitution, which provides: "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 argument scraped the bottom of the barrel. The provision applies only to economic and non-political matters and not to warrantless arrests of suspected criminals. More importantly, President Arroyo is not the State, which as a rule acts through statutes enacted by Congress. If the Constitution had intended otherwise, it would have expressly made the President an exception to the rule.

In the famous Steel Seizure Case, 343 US 579, the US Supreme Court reversed President Truman when, for national security reasons but without lawful authorization, he ordered US soldiers to temporarily take over the operation of private steel mills left idle by their striking workers.

President Arroyo was actually placing the country under martial law but did not admit it because of the limitations in Art. VII, Sec. 18 of the Constitution.

The proclamation of martial law must be reported to Congress within 48 hours and will lapse after 60 days if not revoked or extended by it. The President cannot set aside the revocation. The Constitution and the privilege of the writ of habeas corpus are not suspended. All legislative assemblies shall continue to function, military tribunals cannot preempt civilian courts, and all persons arrested for rebellion or crimes related to invasion must be released if they are not judicially charged within three days. A challenge to martial law before the Supreme Court cannot be dismissed as a political question and must be decided within 30 days.

Martial law can be imposed only in case of rebellion or invasion, which is why Proclamation No. 1017 invoked only lawless violence as its justification. This was another lame excuse to evade the restrictions of Sec. 18 while exercising in disguise the extraordinary powers it permits. This was a worse deception than the open abuses of his military power by Ferdinand Marcos.

Coming back to warrantless arrests, the rule laid down in the slavish case of Garcia-Padilla v. Enrile, 121 SCRA 472, was that suspected rebels can be arrested without warrant because rebellion is a continuing crime that is deemed being committed by the suspect whatever he may be innocently doing at the time of his arrest. It was from that ridiculous doctrine that I dissented when our reorganized Supreme Court affirmed it in the widely criticized case of Umil v. Ramos, 187 SCRA 311. That ruling has yet to be expunged from our jurisprudence.

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