Real, concrete issues

Lifting the state of national emergency under Proclamation 1017 after only a week shows that there is really no need to officially declare it in the first place. Such exigency could not have simply come and gone in such a short period. Between February 24 and March 3, 2006 the administration has not undertaken real drastic, extraordinary and sweeping actions that would categorically end the officially declared emergency. The official proclamation was supposedly triggered by the discovery of the tactical alliance of the political opposition and the extreme left in a concerted and systematic conspiracy over a broad front to bring down the duly constituted government elected in May 2004. But such exigency has been in existence for quite a time already. This is even expressly recognized in first whereas clause of 1017 declaring the existence of said plot "over these past months". And the threat continues according to the administration. With or without 1017 therefore, our country is already in an emergency mode. 1017 only aggravated the situation as it heightened the fear factor, compounded the state of agitation, deepened the confusion and sharpened the division among the people. It has done more harm than good. So its lifting is most welcome indeed.

There is really no specific Constitutional provision empowering the President to declare a state of national emergency. Section 17, Article XII cited by 1017 does not empower the President to make such declaration. This section grants the State (not the President specifically) the power to temporarily take over or direct the operation of any privately owned public utility when national emergency already exists.

Essentially 1017 is a "calling out" order addressed to the Armed Forces of the Philippines. It is one of the powers granted to the President as Commander-in-Chief of said armed forces whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion pursuant to Section 18, Article VII. The others are the suspension of the privilege of the writ of habeas corpus and the placing of the Philippines under martial law. Unlike the latter two powers, the President’s authority to decide when to call out the armed forces pursuant to this section is exclusive and his decision is conclusive on all persons and therefore not subject to judicial review (Martin vs. Mott, 12 Wheat 19 U.S.). She need not first declare a "State of National Emergency" as this is not at all provided in Section 18. Issuing General Orders would have been enough. Thus her declaration of a state of national emergency before issuing general orders 5 and 6 calling out the armed forces rendered her actions subject to judicial review because such declaration apparently lacks solid constitutional bases. Constitutionally questionable and therefore subject to judicial review is her issuance of Proclamation 1017 declaring a state of national emergency rather than her calling out the armed forces.

To be sure, "national emergency" is mentioned only in Section 17 Article 12 and Section 23 (2) Article 6 of the Constitution. Both sections contemplate situations where "national emergency" already exists but do not define the term or specify who can declare it. As already mentioned, Section 17, Article 12 refers to the power of the State (not the President) to take over privately owned business engaged in public utility during times of national emergency. Section 23(2) Article 6 on the other hand refers to the power of Congress to authorize the President "to exercise powers necessary and proper to carry out a declared national policy" in times of "war or other national emergency". Pursuant to this section, all the more can it be said the power to declare a state of national emergency belongs to Congress. In par. 1, this section empowers Congress to declare the existence of the state of war. And since par. 2 equates the state of war with national emergency, it would be more logical to conclude that it is Congress which can declare a state of national emergency as it has the power to declare a state of war.

Thus because of 1017, the following constitutional issues emerge and beg for answers: Is it still necessary to declare a state of national emergency to prevent lawless violence invasion or rebellion? What is the meaning of "state of national emergency"? Who has the power to declare such exigency? Has the President the power to declare a state of national emergency? Assuming the President has such power, is the sufficiency of the factual basis of its proclamation by the President subject to judicial review like in the suspension of the privilege of the writ of habeas corpus and declaration of martial law? What are the powers of the President under a state of national emergency? When should the state of emergency be lifted? Can it last indefinitely or can it be revoked by Congress as in habeas corpus suspension and martial law proclamation?

These are valid and relevant questions that must be resolved by the Supreme Court even if the state of emergency subject of the various petitions before it, has already been lifted. Such lifting does not render these questions moot and academic. Until these issues are resolved now, future controversies regarding the subject will keep on coming back as other similar proclamations may be issued again and again.

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