Equating a leader with the state, or echoing one New Jersey mayor’s famous remark "I am the law," was probably okay for absolutist kings claiming a divine right to govern, or for local officials afflicted with imagined unlimited power. But is it okay for 21st century sitting presidents in an ostensibly democratic system?
In the relatively early days of our independent republic, one dyed-in-the-wool politician is supposed to have asked, "What are we in power for?" He has since been consigned to the garbage bin of our nation’s history.
Fear of this egocentric mindset is what I think lies at the bottom of criticism of Proclamation 1017, issued last Friday, "declaring a state of national emergency." The argument is that the President may not unilaterally declare such an emergency under Article XII, Section 17 of the Constitution which gives that power to the "State." The State, it is asserted, is not solely the President unless she takes the position, like the Sun King of France, that she is the State which, I understand, she does not.
Her justification is something else, which we get into below. But although Proc. No. 1017 purports to declare a national emergency, it actually does more than that. Neither is it anchored only on Art. XII, Sec. 17.
In the same Proclamation, the President, relying on Article VII, Section 18, also commands the Armed Forces of the Philippines, in her capacity as its commander-in-chief, "to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all…decrees, orders and regulations" promulgated by her personally or upon her direction.
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.
Indeed, there are enough criminal statutes already in the books – on rebellion and inciting to sedition, for example – to equip law enforcers with enough powers to arrest and detain suspects. The AFP does not need "1017" to go after any rebel elements in its ranks. Neither does the PNP need it to "maintain law and order throughout the Philippines" or enforce our criminal laws.
But, in any case, the AFP and the PNP must not deny any suspects their rights under the Constitution. If agents of the law claim "standards" that must be observed under Implementing Rules and Regulations or General Orders issued pursuant to Proc. 1017, those IRRs and GOs must themselves pass muster under the Constitution.
The "Commander-in-Chief" provision is clear in allowing the President, "whenever it becomes necessary," to call out the armed forces "to prevent or suppress lawless violence…or rebellion." As it happens, VII, Sec. 18 is also the provision that treats of the suspension of the writ of habeas corpus and the declaration of martial law.
Thus, the suspicion is that Proclamation 1017 signifies "creeping" or "de facto" martial law. However, there is nothing in the Constitution which prevents the President from calling out the armed forces or the police for the specified reasons WITHOUT suspending the writ of habeas corpus or placing any part of the country under martial law.
On the other hand, Article XII, Section 17 allows the State, "in times of national emergency, when the public interest so requires," to "temporarily take over… any privately owned public utility or business affected with public interest." This authority may be exercised during the emergency, under "reasonable terms" specified by the State.
According to Fr. Joaquin Bernas, S.J. in his commentaries on the 1987 Constitution, Art. XII, Sec. 17 does not require that the authorization be by law. "The impression," he adds, "is that the authorization can come from the President." This view, however, has not been tested before the Supreme Court. I understand that certain lawyers’ groups are poised to raise that issue, among others, before the High Court.
If the objective of 1017 is primarily to enable the State to defend itself against alleged lawless elements of the political opposition, the "extreme left" and the "extreme right," I don’t see why, in addition to calling out the armed forces and the PNP, she also has to declare a national emergency.
Bernas says that Art. XII, Sec. 17 was first introduced in the 1973 Constitution as a product of "martial law" thinking. He maintains that it "embodies a martial law power of the President." It is understandable then why the implications of the declaration of a national emergency worry many people.
But perhaps there were reasons known only to the President to declare a national emergency? The preambular clauses of 1017 establish the rationale for the declaration of "a state of national emergency." One could argue that the spirits of Louis XIV and Charles de Gaulle are all over those clauses. We explore that, next time.