Friday, May 05, 2006

Notes on the Proc. No. 1017 Decision

My plan was to do a detailed break-down of the Supreme Court's decision on Proc. No. 1017, but my urge at the moment is to hammer away on notables. Perhaps, a detailed break-down will find its place somewhere else. Meanwhile, let me jot down the following on this decision.

1. Presidential immunity anyone?

The President was sued; it's up there in the title Randolph David vs. President Gloria Arroyo. When I learned back in February that this case was filed, I knew presidential immunity was the first line of defense. It is a basic principle of law that the President may not be sued while she is in office. But it seems the Government did not even raise the matter as an issue, and instead harped on the legal standing of the petitioners to sue. I simply do not understand why the government keeps on raising the "legal standing" issue over and over again even if it is elementary that taxpayers and citizens could sue their government for violation of the constitution. Presidential immmunity would have given the government one additional winning argument to parade to the press.

2. So what does Martial Law mean?

When Proc. No. 1017 was announced, my instinct was to check out what was the legal definition of "martial law", and found it in Fr. Bernas's textbook. According to him, martial law under the 1987 Constitution is the type "which has application when the military arm does not supercede civil authority but is called upon to aid in the execution of its civil functions." (See Joaquin Bernas, A Commentary of the Constitution of the Republic of the Philippines p. 215, 1988 edition). My conclusion was that the wording of Proc. 1017 precisely contemplates that situation where the President is calling upon the military to maintain the peace and order in the entire country. I asked, doesn't this mean civilan authority is no longer functioning? If so, then Proc. No. 1017 is martial law.

But the recent Supreme Court decision said, it is not martial law, but only the exercuse of the "calling-out" power. Said the Supreme Court,

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.

The declaration of Martial Law is a “warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law.”

In his “Statement before the Senate Committee on Justice” on March 13, 2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

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 jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

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.

Can somebody please do me a comparison and contrast essay on "martial Law" and "calling-out power"? This decision has only obscured the concept of martial law more than ever. When the Supreme Court says,

The declaration of Martial Law is a “warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law.”
couldn't that apply too in the case when she declares that she is using her "calling-out" power? They say the "calling-out" power is a mere police action. But isn't martial law a police action too? Maybe I need to go back to law school.

3. The issue is REVIEW. REVIEW. REVIEW.

I could not understand why none of the petitioners challenged the factual basis for the Proc. No. 1017, and I think that was a mistake by the lawyers. We all knew that Proc. No. 1017 was termed a "Declaration of the State of Emergency" instead of the "Declaration of Martial Law" because the President and her legal team wanted to avoid a congressional review of the factual basis for the declaration. That is why it was logical for the petitioners to go to the Supreme Court primarily to challenge the factual basis of the declaration and secondarily (or even lastly) to challenge the nomeclature of the proclamation. But if only the petitioners pressed down on the issue of the factual basis, the Supreme Court would have had the chance to review the basis. It does not matter whether we get the review from Congress or from the Supreme Court so long as the declaration is reviewed by a constitutional body. The system of checks and balances on the executive would have still worked.

But as the Supreme Court ruled, the petitioners did not even challenge the factual basis for the declaration. That's why the Supreme Court had no choice but to accept the government press release behind Proc. No. 1017 one hundred percent (100%) no ifs, no buts. Oops. Lawyers missed the point. Sec. Raul Gonzalez gets one big pogi point for him and his boss.

This means many years from now when all of these things have subsided, and we look back at how history has turned out, there can be no argument that Querol's sleeper of a film clip that the government paraded after Proc. No. 1017 was declared is not just propaganda, but a legally established fact with the Supreme Court's imprimatur. What are we going to tell our children now?

Fr. Bernas claims we won this one 95% to 5%. I beg to disagree with my teacher. No sir, we lost 95% of it instead. The argument that at least the Supreme Court ruled that there can be no takeover of media companies during a state of emergency, doesn't really prevent the government from effecting the same during a state of emergency. For so long as probable cause for rebellion could be established (which coud be done with or without a state of emergency) the ordinary police power of the President gives her the power to take over an offending media company.


mong said...

very enlightening, especially the definition of martial law and the'calling-out' power of the president.

Rizalist said...

I think the crucial phrase in the Constitution is "...whenever it become necessary..." then the president may call out the armed forces to suppress lawless violence etc. When does it become necessary? My understanding was that whenever the President has to call out the military, it is because the POLICE, which maintain law and order under normal times, cannot handle the situation, nor can normal civilian processes be relied upon to handle what must be, a state of emergency, under every conceivable circumstance that martial law would be an appropriate act. Indeed, arguing as the SC itself does, martial law is an EXCEPTIONAL condition relative to the default condition where civilian rule is paramount. I guess the definition of lawless violence to me is violence the police cannot handle. When the President calls out the military it is BECAUSE the police cannot maintain law and order.

Thus, there is no difference between the calling out power and declaring martial law, in my opinion. For what is it that is "called out"? The military or martial forces. And what is the OPPOSITE of martial law? Civilian law. There's nothing in between. It's an excluded middle that the Supreme Court stands on or creates. Indeed, to your most excellent point about challenging the factual bases, it would seem to me that that is also the foundation of such a challenge: was there a condition prevailing that the civilian law enforcers could not handle.

ha! Well who carried out most of the dirty work of pp1017. The PNP.

Great post!

marvin said...


No entienden de lo que están hablando. The footnotes are just subterfuges for the failed logic.