What national emergency?

President GMA and several Cabinet secretaries are giving clear signals that the state of national emergency declared in Proclamation No. 1017 will be lifted within a few days. To help her decide whether the time is ripe for this lifting, she has asked the Secretary of Defense, the Secretary of Justice and the Director-General of the Philippine National Police to submit reports of the national security situation by Saturday morning.

The betting is, the predictable grumbling of Justice Secretary Raul Gonzalez notwithstanding, that the cooler heads in the Cabinet will prevail and that the President will be persuaded to lift the national emergency by this weekend. Certainly, both the Vice President and GMA’s economic managers have been vocal about their view that such a lifting should be announced as soon as possible.

Would an end to the emergency mean that the cases filed by lawyers’ groups in the Supreme Court assailing the constitutionality of Proc. 1017 are rendered moot and academic? Clearly not. There is enough jurisprudence to the effect that in cases of great importance, such as this one, the High Court is duty-bound to lay down the law so as to guide future action by government.

But does it also mean that all questions in regard to the bases or the premises of 1017 should now end? I think not. The principal question, in my view, is still very much relevant and it is, to be precise, this: Was it necessary for the President to declare a state of national emergency in order to respond to what she called the "clear and present danger to the safety of the Philippine State and the Filipino people"?

Indeed, was there a "clear and present danger" to the nation and to the people as a whole, as opposed to a threat to her continued incumbency as the country’s president?

In posing this question, of course, one must concede that any extra-constitutional challenge to her incumbency, any attempt to remove her from office by force rather than by the methods allowed under our organic law is in itself a threat to national security and constitutional order which would justify an extraordinary response. Those extraordinary responses are expressly provided under the Constitution itself.

The first clause in the preamble to 1017 provides the most serious and specific basis for the declaration of a national emergency. It alleges that for several months, the political opposition has been conspiring with the communist CPP-NPA and "military adventurists." These elements have entered into a "tactical alliance" and "engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004."

The second clause adds that "these conspirators have repeatedly tried to bring down the President." This alleged "tactical alliance" between the Left, the Right and the political opposition, therefore, aims to bring down our duly-constituted government, represented by the duly-elected President GMA.

The AFP and the PNP subsequently disclosed that when fugitive Lt. Lawrence San Juan was captured on February 21, several electronic discs were also found in his possession which proved the alliance between the CPP-NPA and Magdalo or the Katipunan ng mga Anak ng Bayan (KAB).

The discs also revealed the details of a plot which involved armed action by renegade units of the Army Scout Rangers, the Philippine Marines and the PNP Special Action Force. President GMA would be ousted and replaced with a Transition Council made up of representatives of the participating civilian and political factions.

That there were, and may still be, fissures in the AFP seems confirmed. That disgruntled elements among the military and the PNP were planning to "withdraw support" from GMA and join attempts to oust her is beyond dispute.

Serious as this may seem, the question is, assuming that the report of a "tactical alliance" is accurate – it has been vehemently denied by Lt. San Juan and the Magdalo soldiers still standing trial – and that there is restiveness on the part of some military and policed elements, is the proper response a declaration of a national emergency?

Many question this. Even among those who give credence to the reports of a fractured military, there is concern that the President had other agendas in declaring the supposed emergency.

There are those who suspect, in light of obstacles faced in Congressional investigations of the Venable contract, the fertilizer fund scam and, yes, those Garci tapes, among others, the "emergency" was blown up to substitute preoccupation with an "emergency" for a relentless effort to discover the truth. Administration supporters counter that these criticisms are presumptuous and naïve.

Still, there seems to be strong support for the argument that the President, as commander in chief, has sufficient constitutional power and authority under the first sentence of Article VII, Section 18 to respond to all threats of rebellion or lawless violence, even if these emanate from the AFP or the PNP and even if, as most lawyers agree, the constitutional rights of suspected conspirators are in no way diminished.

The existence of a national emergency allows the State, under Art. XII, Sec. 17 of the Constitution, to temporarily take over public utilities or businesses affected with public interest. The context of this emergency is the national economy and patrimony (Art. XII). Hence, the use of Sec. 17 to meet security threats is questioned.

Be that as it may, it is difficult to see why temporarily taking over a business, including newspapers and broadcasting companies, is essential to quelling lawless violence or rebellion. There are enough laws and regulations to allow the government and private individuals to go against media companies that are in league with the rebels or use false and misleading reports to exacerbate threats to national security.

Going after media, including threats of closures and government takeovers of media companies, conjures up specters of censorship and of dictators who habitually violate "inviolable" rights such as the freedom of the press and of expression.

By including media which have allegedly "recklessly magnified" the claims of the conspirators, 1017 entered an entirely different, and infinitely more contentious, ballpark. We’ll need our next column to explore why the issue causes so much dismay.