The rest is up to us

I am very pleased with the Supreme Court’s decision on Presidential Proclamation 1017.  On hearing the first cryptic reports on radio, I thought this was another one of those win-win verdicts that try to please everyone.  It is not. The Court has struck a blow for liberty and democracy.

As one of the lead petitioners against 1017, I had a personal interest in the outcome of this case.  The Court categorically ruled that the police who arrested me without a warrant during a peaceful rally on Edsa last Feb. 24th violated my constitutional rights.  I was hoping the

SC decision would put an end to my troubles with the police.  But now Ms Arroyo’s subalterns are saying that I and Akbayan president Ronald Llamas were arrested not under 1017 but under BP 880.  I’m afraid that if BP 880 doesn’t stick, my next citation would be for rebellion.  That is what they used to immobilize the old warrior Crispin Beltran.

I first heard of 1017 from one of the plainclothes policemen who arrested me.  Unable to produce a warrant when I asked for one, he blurted out the magic number: 1017.  I asked him what it meant.  He could not answer, but he gave me its title: “State of National Emergency.” It was all that the police seemed to need to justify doing what they thought was necessary to carry out their orders.

In Camp Karingal where I was taken, I asked the police colonel who was in charge if he had read 1017.  He also said no. But he was at least curious to know what it contained.  One of my lawyers lent him a copy.  I doubt very much however if a close reading of 1017 would have helped him.  His superiors – Gen. Arturo Lomibao, Gen. Vidal Querol, and Gen. Nicasio Radovan – were already acting as if Martial Law was in effect.  They thought 1017 freed them from all legal restraints.  We might perhaps forgive their momentary intoxication. After all, their equally militaristic civilian superiors in Malacanang were telling media that day that warrantless arrests and searches, dispersal of all rallies, takeover of privately-owned public utilities, etc. were permitted during the emergency.

If 1017 was textually vague, the orders were not.  The crux of the problem, as the high court sees it, is that the powers that Malacanang sought to exercise through 1017 exceeded the constitutional prerogatives that were being invoked. The lawyers who drafted the proclamation might have misled the police, but the more likely reason for the lack of fit between the objective sought and the instrument chosen is that Malacanang wanted to avoid Congressional review. That is why it fell short of suspending the privilege of the writ of habeas corpus or declaring martial law.

In 1017, Ms Arroyo does two things basically. First, she calls on the armed forces to suppress lawless violence. Second, she declares a state of national emergency.  Are these constitutional?

The Court rules that calling out the armed forces to suppress lawless violence when necessary is a prerogative of the President under the Constitution.  Therefore, 1017 is a valid exercise of this power.  But, the Court also says that 1017 stretches this power when it calls on the armed forces “to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.”  The President cannot direct the armed forces to “enforce obedience to all laws, even those not related to lawless violence.” Furthermore, the President cannot talk about promulgating decrees because under the 1987 Constitution, the President does not have this power, not even under Martial Law.

PP 1017 declares a state of national emergency.  But what does it do?  Does it confer emergency powers on the President?  The Supreme Court concedes that, in the absence of any explicit provision to the contrary, the President “could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment.”  However, the Court emphatically states that “the exercise of emergency powers, such as the taking over of privately-owned public utility or business affected with public interest… requires a delegation from Congress.”  Ms Arroyo and her subordinates were operating under the wrong notion that the President could exercise such powers without Congressional authority.

The Commander-in-Chief powers of the President are awesome. The framers of our Constitution intended them to be used with restraint and only for the purpose of ensuring public safety.  They were not meant to be used to stifle dissent, or to silence the critics of government.  Safeguards are in place to prevent the abuse of these powers.  But not even the most detailed Constitution can be protected from those who exploit its gaps and loopholes to carry out a political agenda.

“Words are deeds,” says Wittgenstein.  We flatter with words, we threaten with words, we deceive with words. Removed from its practical context, the text of Proclamation 1017 may mean nothing. But viewed in the light of the events and interests in which it makes its appearance, its insidious design becomes clear.

1017 is cut from the same cloth as EO 464 and CPR.  It is as cleverly crafted as Gloria Macapagal Arroyo’s “I-am-sorry” speech.  It aims for maximum political effect at minimum legal risk. A friendly court could have easily upheld it, and laid the blame for its excesses on the enforcers.  But the Panganiban Court saw in 1017 a dangerous subterfuge advancing stealthily under the cover of legality. The Supreme Court has struck it down. The rest is up to us.

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