Harry Roque, one of the lawyers of University of the Philippines professor Randy David, said the text of Proclamation 1017 is identical with that of former dictator Ferdinand Marcos’ Proclamation 1081, which ushered in martial law in September 1972.
"I don’t see any factual basis on the claim of the government in Proclamation 1017 that there is clear and present danger that would justify any such attempt to infringe on the freedom of the press. Proclamation 1017 is... a de facto martial law (decree) because it infringes on the constitutionally protected (right to) freedom of speech. If it was President Arroyo’s intent to state facts, it should not be continued to infringe on constitutionally-protected rights," Roque said.
Raul Pangalangan, a former dean of the UP College of Law and David’s other lawyer, said what is dangerous about Proclamation 1017 is its "gray area." He pointed out that while the proclamation does not specify what powers should be implemented by Mrs. Arroyo, the way it was implemented strongly resembled that of a martial law decree.
He said some people — including his client and Anakpawis party-list Rep. Crispin Beltran — were arrested without a warrant because of "the misinterpretation and misapplication" of Proclamation 1017.
"The government, through Proclamation 1017, implemented an across-the-board prohibition of public protest, arrested persons without warrants of arrest and curtailed the freedom of the press. Proclamation 1017 affects the civil rights of the people, which is squarely in the ambit of the Supreme Court," Pangalangan said.
He added that police arrested 13 minors, aged 12 to 17 years, during the implementation of Proclamation 1017.
"The declaration has been lifted, but the effects linger. This honorable court must declare that Proclamation 1017 is invalid so that (Mrs.) Arroyo will not issue the proclamation again. The mooting of the case must not allow the court to stop it from ruling on the case," Pangalangan said.
He called on the Supreme Court to issue a ruling to prevent Mrs. Arroyo from implementing the same proclamation.
Pangalangan said his client "was arrested based on the provisions of Proclamation 1017. He was initially informed that he was invited for questioning based on Proclamation 1017 and was told he could not refuse it. He was informed that he would be charged with violation of Batasang Pambansa 880 and inciting to sedition for the first time during the inquest proceedings and the prosecutor’s office said there was no probable cause to charge him."
Pangalangan said if there were truth to Mrs. Arroyo’s claim that there was a "clear and present danger" to the government, "the proper recourse" was for her "to declare martial law, suspend the (writ of) habeas corpus and submit herself to the review of Congress."
Chief Justice Artemio Panganiban noted that martial law and the suspension of habeas corpus could only be implemented if there is "actual rebellion or invasion."
Pangalangan also criticized the "guidelines" issued by the government in cracking down on media entities, saying it amounted to a strangulation of free speech and a free press.
At the same time, she said the proclamation also violated her right to prosecute her election protest against Vice President Noli de Castro.
Legarda argued that the proclamation restrained her from coming out with findings regarding the fraud committed in the May 2004 polls for fear she could be charged by the government with what the proclamation described as "sabotaging the people’s confidence in government."
She said journalists like her also suffer under prior restraint against reporting on fraud in the last election because they could "rightly or wrongly be identified as among the elements in national media who ‘recklessly’ magnify the claims of alleged conspirators to bring down the government.
"Prosecution of a protest before the Presidential Electoral Tribunal relies largely on evidence given by the public as reported in the media. The ‘Garci’ tapes which were played up in the media were rich sources of information, from which relevant evidence could be culled," Legarda said.
The tapes purportedly documented Mrs. Arroyo and an elections official discussing a plot to rig the presidential polls in her favor.
Saguisag said the policemen who raided the opposition newspaper committed "trespass, theft and their presence in media entities is highly questionable."
He added that Cacho-Olivares had reason to believe the PNP installed bugging devices inside the newspaper’s offices.
Saguisag said Proclamation 1017 was not "lifted, that was face-lifting." He said the proclamation, "on its face, is void and should not pass muster" with the Supreme Court.
He said the proclamation had a "thrilling effect" on the police, who were excited to "get... Beltran, (retired) general Ramon Montaño while playing golf, David for walking on the sidewalk and Cacho-Olivares for criticizing the government."
Saguisag added that rather than seeking to prevent the proliferation of illegal drugs or firearms, the police sought to prevent the spread of "ideas."
"The harassment of The Daily Tribune appeared to be a warning against bigger media entities, like ABS-CBN and the Philippine Daily Inquirer. We come here to ask you that the Supreme Court draw the line. The policemen cannot enter any property and not be held answerable to that," he said.
Saguisag said there were actions carried out under Mrs. Arroyo that would not have been done even under Marcos, and that the Arroyo administration was "testing the waters" to determine the media industry’s reaction to the implementation of Proclamation 1017.
"We must resist the first encroachment. We would hope to get a clear-cut ruling because this is an attempt to test the water if they can get away with it," he said.
Saguisag said there is nothing wrong with calling for Mrs. Arroyo’s resignation, as was done by the political opposition.