The demonization of 1017

Somehow, we all knew it was coming. If only the President’s legal and political advisers had exercised sober professional judgment. If only these advisers had ignored those mindless hecklers on the sidelines. Perhaps history would have been different and her government would not have received the kind of rebuke it got from the Supreme Court in the latter’s decision on Proclamation 1017.

Not that the decision was much of a surprise. In our column of last February 28th, a few days after PP 1017 had been issued, and in the midst of the political firestorm already swirling about Metro Manila, we ventured the opinion that:

"Critics go into fits of apoplexy because, in their view, ‘1017’ is a two-headed hydra which runs afoul of the Constitution and represents the epitome of political imperiousness. My view is somewhere in between. I believe the President is on safer ground in the exercise of her Constitutional prerogative as commander-in-chief than she is in resorting to the power of the State to declare a national emergency.

"It is clear that the Proclamation does not grant the President, the AFP or the PNP the right to arrest or search without warrant, or deny individuals suspected of lawlessness or rebellion their Constitutionally-guaranteed rights during the emergency.

"No one seriously argues that these rights are in any way suspended or somehow diminished during a ‘national emergency.’ The Palace has stressed repeatedly that 1017 does not suspend the writ of habeas corpus, much less declare martial law. If that were the case, the President would not be able to act on her own and Congress would, under that very same Art. VII, Sec. 18 of the charter, get into the act."

In our column of March 2nd, when the lifting of 1017 was already widely anticipated, and indeed occurred the following day, we said: "(T)here 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…The existence of a national emergency allows the State, under Art. XII, Sec. 17…to temporarily take over public utilities or businesses affected with public interest…

"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…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 freedom of the press and of expression."

Well, we didn’t get all of it right, but we got much of it right. In fact, the Supreme Court went further than I thought it would.

To start with, PP 1017 was declared constitutional "insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence." But the Court declared unconstitutional those provisions of 1017 which commanded the AFP to enforce laws not related to lawless violence. It also ruled that the President had no power to promulgate decrees under PP 1017 which, it agreed, did not declare martial law.

The High Court also said that it was within the power of the President to declare a national emergency, without need of Congressional action. But such a declaration did not authorize the President to take over privately-owned public utilities of businesses affected with a public interest without prior legislation.

Moreover, since 1017 did not suspend Constitutionally-guaranteed substantive civil rights, the following acts committed ostensibly under that proclamation were also declared unconstitutional: the warrantless arrest of UP Professor Randy David and Ronald Llamas, president of Akbayan; the dispersal of rallies and warrantless arrest of KMU and NAFLU-KMU members; the imposition of standards on media or any prior restraint on the press; and the warrantless search of offices of The Daily Tribune and the "whimsical" seizures of certain articles for publication and other materials.

The Court noted the statements of several government officials including Presidential Chief of Staff Mike Defensor’s announcement that "warrantless arrests and take-over of facilities, including media, can already be implemented"; Justice Secretary Raul Gonzalez’s declaration that all political rallies were cancelled; and PNP Director General Arturo Lomibao’s warning that media outfits that did not follow "standards" set by the government during the emergency would be recommended for takeover or closure.

Given these rulings, it’s hard to see how the Palace can still pretend to snatch some victory from the jaws of ignominious defeat. But it wasn’t a total shut-out for the government. The power to determine when to "call out" the AFP to quell rebellion and lawless violence belonged to the President, the Court granted, although the exercise of any power under the "calling-out" provision had to be strictly construed to exclude any act not deemed reasonably necessary to addressing the rebellion and lawless violence.

Further, while the Court may look into the President’s exercise of the power, the test is not whether she acted correctly but whether she acted arbitrarily. The Court was convinced that "the President was justified in issuing PP1017 calling for military aid."

In addition, the power to declare a national emergency under Article XII, Section 17 of the Constitution was deemed to be a presidential prerogative. However, the exercise of the power under that provision to "take over or direct the operation of any privately owned public utility or business affected with public interest" required specific legislation by Congress.

Despite the distinction made by the Court between the declaration of an emergency and the exercise of power during that emergency under Art. XII, Sec. 17, this ruling settles the issue of whether the President may declare the emergency, or whether even that declaration requires Congressional action.

But, in context, these are small victories indeed for all those Palace advisers who, to quote Chief Justice Artemio Panganiban in his separate concurring opinion, "may be testing the outer limits of presidential prerogatives and the perseverance of this court in safeguarding the people’s enshrined liberty."

"They," the Chief warned, "are playing with fire." As a practical matter, though, I can’t be sure those testers of the outer limits of the Constitution, who even now still roam the darkened halls of the Palace, have grown tired of the game.