Making sense of Proclamation No. 1017

NOW that a state of national emergency has been declared, we would like to recall an old post we wrote on the extraordinary presidential powers at Gloria Macapagal-Arroyo’s disposal outlined to us by the Free Legal Assistance Group (FLAG) to help shed light and inform the public on the scope and limits of such powers.

Arroyo’s state of emergency declaration as expressed in Proclamation No. 1017 has generated confusion, especially with Sec. Michael Defensor, the presidential chief of staff, issuing pronouncements regarding the enforcement of warantless arrests, revoking permits for scheduled rallies today commemorating the 20th anniversary of Edsa 1, and government’s takeover of key privately owned public utilities and businesses, including the media. These have only raised concerns particularly among civil libertarians.

Human rights lawyer Teodoro Te, in his blog, wrote that Arroyo "effectively declared martial law without calling it such under Proclamation No. 1017." Te further said:

She just declared a “state of  emergency” (see Constitution, Art. XII, Sec. 17 which deals with national emergency that confers extraordinary economic powers on the Chief Executive), which does not entitle her to call out the armed forces (Art. VII, Sec. 18). 

Yet, I just heard her do exactly that — by leaving it to the military and police to take care of things.

As they say in Nickelodeon, “you can’t do that.”

The specific provisions governing a state of emergency under the 1987 Constitution are as follows:

Article XII, Sec. 17.  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.

Article XII, Sec. 18.  The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

Te pointed out that with the military already announcing that what supposedly transpired this morning was a coup attempt, "it is highly unlikely that Arroyo would declare only a state of emergency as the powers that would be conferred by such a declaration would be only economic in nature.  It becomes more probable that a state of rebellion or a proclamation of martial law would be declared."

On ABS-CBN, University of the Philippines law professor Marvic Leonen also made it clear that a state of national emergency does not suspend the Bill of Rights. On the issue of warrantless arrests, he said "there is no basis to suspend the rules. There still has to be strong evidence, an arrest without warrant will still require that the arrest be done in flagrante delicto, the arresting officer has personal knowledge of the crime being committed, or if the subject of arrest has escaped from detention."

Below is the text of our previous post on extraordinary presidential powers: 

A. Commander-in-Chief Powers (Art. VII, Sec. 18, 1987 Constitution)

    a. Call out Armed Forces

• To suppress lawless violence, invasion or rebellion
• Not subject to congressional approval or judicial review
• President vested with full discretionary power to determine factual basis for calling out armed forces.

Note:
1. In IBP v. Zamora, the Supreme Court held: "When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion."

• Power exercised by President Joseph E. Estrada on 24 January 2000, ordering the Marines and the PNP to conduct joint visibility patrols to prevent and suppress crime. Power upheld by Supreme Court
• Power exercised by President Gloria Macapagal Arroyo on 1 May 2001 through General Order No.1, directing the AFP and PNP to suppress and quell the rebellion

Notes:
1. Hold departure orders issued and implemented
2. Persons arrested without warrants and specific charges
3. Checkpoints set up
4. Order issued to disperse groups of 5 or more massing up near palace

    b. Suspend the privilege of the writ of habeas corpus

• i. In cases of rebellion or invasion and when public safety so requires
• ii. Applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion

Note:
1. Refers specifically and categorically to those facing criminal charges filed in court, not to those facing investigations, preliminary or otherwise, before the fiscaL prosecutor or DOJ

• Persons arrested or detained must be judicially charged within 3 days, otherwise must be released
• For period not exceeding 60 days; may be extended by Congress through majority vote of all members of Congress voting jointly, upon initiative of President if invasion or rebellion persists and public safety requires
• No congressional concurrence required, but Congress has power of revocation through majority vote of all members of Congress voting jointly; revocation cannot be set aside by President

Notes:
1. 236 members of House of Representatives; 23 Senators. 259 total members of Congress.
2. Majority vote required for revocation or extension – 131
3. No rules on joint voting in Senate or House

• Subject to judicial review; decision must be promulgated within 30 days from filing
• If Congress is in session, President required to submit a report to Congress in person or in writing within 48 hours from suspension
• If Congress is not in session, all members required to convene without need of call within 24 hours from suspension

Notes:
1. Congress on recess since 13 October 2005; Senate resumes 24 October 2005 while House resumes 7 November 2005
2. No rule in Senate on convening without need of call; Rule 84, House of Representatives, replicates constitutional provision

    c. Declare martial law

• In cases of rebellion or invasion and when public safety so requires
• Does not suspend Constitution
• Does not supplant functioning of civil courts or Congress
• Does not authorize conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function
• Does not automatically suspend writ of habeas corpus
• For period not exceeding 60 days; may be extended by Congress through majority vote of all members of Congress yoting jointly, upon initiative of President if invasion or rebellion persists and public safety requires
• No congressional concurrence required, but Congress has power of revocation through majority vote of all members of Congress voting jointly; revocation cannot be set aside by President

Notes:
1. 236 members of House of Representatives; 23 Senators. 259 total members of Congress.
2. Majority vote required for revocation or extension – 131
3. No rules on joint voting in Senate or House

• Subject to judicial review; decision must be promulgated within 30 days from filing
• If Congress is in session, President required to submit a report to Congress in person or in writing within 48 hours from declaration
• If Congress is not in session, all members required to convene without need of call within 24 hours from declaration

Notes:
1. Congress on recess since 13 October 2005; Senate resumes 24 October 2005 while House resumes 7 November 2005
2. No rule in Senate on convening without need of call; Rule 84, House of Representatives, replicates constitutional provision

B. Congressional Grant of Emergency Powers (Art. VI, Sec. 23, 1987 Constitution)

• In times of war or other national emergency

Note:
i. There must be a "compact" relationship between the declaration of war and powers granted to President

• By two-thirds of both Houses, voting separately in joint session

Notes:
i. 236 members of House of Representatives; 157 votes needed to declare existence of war or national emergency
ii. 23 Senators; 15 votes needed to declare existence of war or national emergency

• For limited period
  

Note:
i. In Araneta v. Dinglasan, the Supreme Court held: "The words ‘limited period’ as used in the Constitution are beyond question intended to mean restrictive in duration. Emergency, in order to justify the delegation of emergency powers, ‘must be temporary or it can not be said to be an emergency.’"

• Subject to restrictions Congress may prescribe
• Unless withdrawn by Congress, powers cease at next adjournment
• Emergency powers granted to President Corazon C. Aquino on 20 December 1989 through Republic Act 6826

Notes:
i. RA 6826 granted the President powers to:


1. Protect people from hoarding, profiteering, injurious speculations, price manipulation, product deception, cartels, etc. of food, clothing, medicines, office and school supplies, fuel, fertilizers, etc. whether imported or manufactured locally
2. Purchase any articles or commodities mentioned for storage, sale or distribution
3. Fix maximum ceiling prices of articles or commodities mentioned
4. Regulate fees charged by establishments in connection with production, milling, storage and distribution of articles or commodities mentioned
5. Seize and confiscate hoarded foodstuffs and commodities, provided goods wrongfully seized shall be subject to payment of just compensation
6. Call upon and designate recognized NGOs and peoples organizations, and LGUs to assist government
7. Temporarily take over or direct the operation of any privately owned public utility or business affected with public interest that violates the declared national policy
8. Liberalize importation and grant incentives for manufacture, assembly, reconditioning or importation of vehicles or vessels for public transport
9. Ensure availability of credit to productive sectors, including lowering effective lending rates of interest and reserve requirements of lending institutions
10. Stagger work hours and adopt flexible work schedules for government workers and when necessary workers in the private sector
11. Conserve and regulate distribution and use of power, fuel, energy
12. Issue orders for recovery and accounting of all firearms, explosives and military equipage
13. Undertake such other measures as may be reasonable and necessary

ii. Actions taken by President Aquino include:

1. Executive Order No. 384: Providing General Guidelines in the Implementation of Proclamation No. 503 (declaring a state of national emergency in the Philippines)
2. Executive Order No. 383: Directing Emergency Measures to Prevent Excessive Increases in the Prices of Certain Prime Commodities in the National Capital Region
3. Memorandum Order No. 267: Directing the Temporary Take-Over or Direction of the Operations of JD Transit, Inc. and DM Consortium, Inc.
4. Memorandum Order No. 269: Directing the Temporary Take-Over of the Operations of Manila Central Lines (MCL) Bus Company
5. Memorandum Order No. 270: Directing the Secretary of Trade and Industry to Ensure Adequate Supply of Cement for the Small and Medium-End Users

C. Emergency Powers (Art. XII, Sec. 17, 1987 Constitution)

• In times of national emergency when public interest so requires

Note:
i. National emergency may refer to threats from external aggression, calamities, natural disasters, strikes only when they are of such proportion as would paralyze government service, military national emergency, or economic dislocations

• State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest

Notes:
i. State refers to executive branch of government
ii. Business affected with public interest refers to businesses that have the characteristics of a public utility, with mass-based consumer group. "Entire business operations which are not treated as public utilities do not fall under the public utility regulation, but may already be so massive in terms of its consumption, especially as regards the low-income groups, that they should also be subject of the specific section."

• Does not authorize sequestration
• For duration of emergency
• State prescribes reasonable terms

i. The phrase "under reasonable terms prescribed by it" does not serve to stop the State from taking over the operation of any privately owned public utility or business