Tuesday, March 7, 2006

PP 1021 Did Not Rescind Military Rule Portion of PP 1017

Philippine Commentary is proud to publish the following legal analysis and opinion by Atty. Alan F. Paguia, formerly Professor of Law at the Ateneo de Manila University Law School and the Pamantasan ng Lungsod ng Maynila, before he became better known for taking up the most difficult and unpopular case in recent Philippine judicial and political history -- the legal defense of the only democratically elected President of recent memory, Joseph Estrada. He had some very good company in that necessary endeavour in such others as the civil libertarian and anti-martial law fighter, Atty. Rene A.V. Saguisag. But this essay has nothing to do with Erap or his guilt and innocence. Rather, it has everything to do with Gloria Macapagal Arroyo and her guilt or innocence in the present tense situation when the Media has been viciously attacked, warrantless arrests, searches and seizures are being undertaken, and people are wondering whether or not martial law or military rule has in fact been imposed. In a way, what follows is bad news. Atty. Paguia's basic conclusion is as stunning as the bases for it is crystal clear from the very words of the two Proclamations: Mrs. Arroyo never lifted the military rule portion of PP 1017, only the state of national emergency!--DJB

LEGAL COMMENTARY ON PROCLAMATION 1017 AND 1021
By Atty. Alan F. Paguia
Special to Philippine Commentary

First look at the oprerative portion of Gloria Macapagal Arroyo's Proclamation 1017, dated 24 February 2006--
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President…whenever it becomes necessary,… may call out (the) armed forces to prevent or suppress … rebellion…," and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, 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 me personally or upon my direction; AND as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.
NOTA BENE: It is readily observed that the operative paragraph above consists of two parts: (1) her COMMAND to the Armed Forces of the Philippines "to maintain law and order throughout the Philippines," under the article on the Executive Department in the Constitution, and (2) her declaration of a "State of National Emergency" under the Constitutional article on National Economy and Patrimony.

After swift and unequivocal domestic and international condemnation and opposition to PP 1017 from different sectors, including the Senate, the Integrated Bar of the Philippines, and the University of the Philippines Law School Faculty, and the Media, she issued Proclamation No. 1021, entitled "Declaring that the State of National Emergency has Ceased to Exist," the operative paragraph of which provides --
NOW, THEREFORE, I, GLORIA MACAPAGAL –ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.
Again it is readily observed that Proclamation 1021 has limited its application to the second part of Proclamatin 1017. It is completely silent on the first. Ergo, GMA's command to the AFP "to maintain law and order throughout the Philippines" -- which is what martial law or military rule is all about -- stands on record under Proclamation 1017 despite Proclamation 1021.

Is that command constitutional or unconstitutional? UNCONSTITUTIONAL. For the following reasons and considerations:

(1) The Constitution must be taken to mean exactly what it says. When it states "the executive poer shall be vested in the President of the Philippine" (Sec. 1 Art. VII), it means the President has the power to EXECUTE the Law, but not LEGISLATE nor conduct JUDICIAL REVIEW. These powers are held separately under the Constitution. The holder of one is proscribed from usurping the others.

(2) The Office of the President is the most powerful under the Constitution. It has the power of CONTROL over the entire executive department. It has under its command all law enforcement offices to ensure that the laws be faithfully executed (Sec. 176, Art. VII).

(3) Under the Constitution, "The President shall be the Commander-in-chief of all the armed forces of thePhilippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellin..." (Sec. 18, Art. VII).

(4) Sovereignty resides in the people and all government authority emanates from them (Sec. 1 Art. II). The creator of the government is necessarily superior to the creature. Thus, "civilian authority is, at all times, supreme over the military" (Sec. 3 id.) . What is the role of the military or the AFP under the Constitution? It is "the protector of the people and the state. (id.)"

(5) The State maintains one police force, the Philippine National Police (PNP), which is "national in scope and civilian in character" (Sec. 6, Art. XVI).

(6) The President exercises two kinds of authority: (a) civilian and (b) military. The first is, at all times, supreme over the second. the first referes to the power of control over the entire executive department, except the AFP. the second referes to the power of control over the AFP.

(7) Does the constitutional grant of military authority carry with it authority over civilian affairs? NO. Why? The grant of military authority is intended to strenthen, not to defeat nor to supplant the civilian. As a general rule the government operates upon the civilian authority. It is only in three exceptional cases where it makes use of military authority. These are in case of (a) lawless violence; (b) rebellion; or (c) invasion.

(8) In case of lawless violence, the President acts in his capacity as Commander-in-chief and may call out the armed forces to prevent or suppress it. There is, however, a constitutional condition for the exercise of this pwoer. The calling out of the military must have become REASONABLY NECESSARY. For instance, it must be shown that the PNP and other civilian enforcers would not be sufficient to prevent or suppress the danger. Otherwise, the perceived "necessity" would not appear reasonable.

Did Mrs. Arroyo comply with the the constitutional condition? -- NO.

Did she ever claim her act of calling out the military had become necessary? --NO.

Did she ever claim the PNP and other civilian law enforcement agencies were no longer capable of effectively maintaining law and order throughout the country? --NO.

In other words, in spite of Proclamation 1021 (declaring that "the state of national emergency has ceased to exist") , Mrs. Arroyo's COMMAND to the AFP -- under Proclamation 1017 (declaring a state of national emergency), General Order No. 5 (calling out th eAFP an d the PNP "to prevent and suppress terrorism and lawless violence in the country), General Order No. 6 (directing the AFP to coordinate with the PNP), Administrative Order No. 143 (directing the PNP to temporarily suspend permits to carry firearms and possess explosives, and temporarily suspend the issuance of such permits until the state of national emergency is lifted) -- "to maintain law and order throughout the Philippines" REMAINS AN OPERATIVE FACT ON OFFICIAL RECORD.

Given these premises, is the Philippines effectively under military rule?

YES -- under a fake Commander-in-chief who was installed on 20 January 2001 upon the politically partisan inittiative of now Supreme Court Chief Justice Artemio Panganiban.
...End of Alan Paguia's Guest Commentary...


What can I say? The Sword of the Law and Blind Justice is Iron Logic. No one wields it with the passion and the impressive competence of Alan Paguia. Even civilians can understand this essay and its straight, jargonless talk. It is refreshing given the Orwellian double-speak we seem to be getting from the Palace. His dedication to truth and equality for all men, his devotion to the Law and its moral principles, his love of peace through justice, are things I have personally observed to be strong and abiding in this man. His courage in the face of undeserved ridicule for handling Estrada's case, should stand as a shining example to other lawyers, especially the youth, about the meaning of impartiality and equality before the Law. He is a gem in the rough that is our legal profession, which is populated by so many lesser men with mean and mediocre minds, and who wield power in our society by serving the craven, the prejudiced, the corrupt. Proof of that is the world of trouble he has earned himself from all the sorts of people that even those who once reviled his position on Edsa II, now see to be for what they are -- cheaters, liars and stealers even worse than the President they once illegally deposed in a military-backed judicial coup d'etat, that in some ways, stands at the roots of our present dilemma of a doubly illegitmate leader, err...Commander-in-chief.

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51 comments:

HILLBLOGGER said...

DJB,

Thanks for the post. Yes, Paguia has a way of simplifying the most complex legal issues.

I wish we had someone like him in th Supreme Court. He would have made a terrific DOJ chief too instead of that dimwit from Iloilo.

I wonder whether the Panganiban led SC will render an opinion similar to Paguia's.

Rizalist said...

This is HOT hb. And serious as a heartbeat. I was gonna say, he is the sort we need on the High Court. It was really unfair what they did to him: suspended indefinitely, which is worse than outright disbarrment, just because they could not handle the truth of edsa 2.

HILLBLOGGER said...

DJB,

I've always been an admirer of Paguia since 2000.

A very long letter that I addressed to him in 2001 was published by the Tribune.

I was following the impeachment proceedings, hoping it would come to a legal conclusion but when Joker Arroyo walked out and Davide did not do anything to bring them back, I told myself, there goes democracy, the Republic, its Constitution - and to the bin they went.

But I remained hopeful thinking that with a man like Paguia in the national legal arena, there would be a glimmer of hope but the SC quashed all that.

Heck, DJB, I was thorougly disappointed - I thought, eWell, these guys in Pinas don't deserve democracy. In that case let's go for martial rule! A bit of military discipline will do them some good." (Must admit I was so disappointed hence that bit of Pershingesque or Pershing doctrine there!)

HILLBLOGGER said...

DJB,

Wonder why Estrada doesn't go to the Human Rights Courts in Strasbourg and file human rights abuse suit against Gloria...

Wonder what Paguia thinks of that...

Rizalist said...

Well I guess he ought to, but he's been offered his freedom by Mike Defensor several times, outright. Yet he won't leave. I don't understand that aspect of Erap. I was sure he would flee at the first opportunity way back in 2001. but he didn't. He seems pretty sure of his support, or something else, I don't really know what.

HILLBLOGGER said...

DJB,

Your post is in circulation now through e-mail groupies in the US and in Europe.

Hope the guys come and visit and discover the Paguia Opinion.

HILLBLOGGER said...

DJB,

Don't you just get tired of all these things that sometimes you feel like bashing everyone in the head even if it means martial rule?

I do and believe you me, when I was in Pinas last year - I really discussed the issue with some military friends (star rankers too) about their launching a real coup d'état, not just some baby coup d'etat tantrums.

You yourself had a thought that the US should perhaps invade Pinas again...

Rizalist said...

ABSCBN News just aired entirety of the propaganda video. there's links to it in the previous posts. you gotta see it. the musical sound effects are really amateurish...it's sort of a scary fairy tale for adults...very young, naive adults..am wondering how effective it might be on ordinary folks...

HILLBLOGGER said...

DJB, alam mo naman ang mentalidad ng maraming Pinoy especially those who have no access to books, they get sucked up by moving media thinggy.

They will buy it.

Gotta counter that too... but who will counter that savage propaganda?

It's a load of bullshit! Absolute rubbish, DJB.

IF YOU SEE TOTING, PLEASE TELL HIM TO GIVE ME BACK THE FRENCH CAP I GAVE HIM - HE DOESN'T DESERVE IT and I will ask my niece to change doctors too and not to consult his wife anymore!

HILLBLOGGER said...

(his wife is a pediatrician and was my daughter's doctor at one point in Makati Med).

HILLBLOGGER said...

DJB,

Let's use the tools at our disposal to hit the Arroyo spouses. The case is clear cut unlike the wiretapping thinggy and all the other offences.

Let's begin at the beginning because we have records of Arroyo spouses' declaration to the press to nail them.

Gloria Macapagal-AQrroyo and her husband Mike Tuason Arroyo should be indicted for leading and committing a coup d’etat in 2001 to overthrow a constitutional government.

Although the 2001 coup d’etat may not be deemed bloody, it had all the elements that constitute a coup d’état: mutiny, speed, violence, movement of troops in attack formation (with weapons, arms and ammunitions)

Former CSAFP Angie Reyes and his major service commanders committed mutiny as well as being accessories to the coup d’état conspiracy.

MajGeneral Espinoza (Ret) is guilty of attempting to overthrow the Republic through a coup d’état.

The roblem is who will indict these culprits? Philippine Courts are no longer independent; Philippine judiciary has become a lapdog judiciary.

Unless the Filipino people tackle the events of 2001 head on and bring them to closure legally and constitutionally by punishing the guilty, the nation, its constitution and its military institution will always be subject to all forms of abuses by greedy, ambitious and corrupt politicians - the country will never achieve its ambition of being a true democracy.

Rizalist said...

I've been keeping him commentary on him down at the ranch (Ye Olde Philippine Commentary) but I'm gonna have to do a special on Alex Maggot. Been watching him tonight on Korina Sanchez and have really had it with that sycophant. Great intro to the segment by MLQ3 though with the camera zooming in on the maggots face as the script written by Manolo intoned "...it's strictly propaganda..." hahah

HILLBLOGGER said...

DJB,

Juanito dela Cruz posted a comment over at Ellen’s blog http://www.ellentordesillas.com/?p=154#comments

suggesting that a Gloria doll be made and distributed.

I thought it was an excellent idea; I added another suggestion that the Gloria doll should also have horns (sungays) and a tail (buntot) and will be called “Gloria Impakta Doll”.

The Bystander said...

Atty. Paguia has a point. Proclamation 1017 and the other issuances that followed thereafter were clearly an abuse of discretion on the part of the Chief Executive. Proclamation 1017 is merely a euphemism for martial law, if we go by the actions undertaken by the government in its implementation.

Furthermore, Article 7, Section 18 must be read and understood in its entirety. It essentially refers to the mechanics of suspending the privilege of the writ of habeas corpus and of the declaration of martial law. What Mrs. Arroyo did was to simply extract the first sentence of the provision and used it as basis for what she now calls "a state of national emergency". Reading between the lines, Proclamation No. 1017 is martial law in disguise. It is actually a legal circumvention to suit the needs of a government under siege. Gloria's lawyers were just being clever in choosing another name to avoid the strict requirement of subsequent Congressional approval. Moreover, if the intention is merely to suppress rebellion or the alleged conspiracy among the political opposition, the NPA and the military adventurists, it is well within the power of a State, as provided in the Constitution, to call out its armed forces to protect itself from its perceived enemies. Besides, the government has been fighting the communists since time immemorial. So what else is new about the conditions cited by Mrs. Arroyo for her to issue such a Proclamation? At most, this state of emergency is just a declaration of the current state of affairs besetting the country, no more, no less. It does not suspend the functioning of civil courts nor does it allow indiscriminate warrantless arrests of known critics of the Arroyo administration.

Lastly, the requirement of "reasonable necessity" is actually a question of fact. The Constitution does not even say "reasonably necessary", it merely says "whenever it becomes necessary". Thus, what may seem necessary to GMA under a particular set of circumstances may not be necessary for Juan de la Cruz. Of course, with GMA and Raul Gonzalez at the helm, I will not be surprised if they merely concocted stories to justify PP 1017.

Atty-at-Work said...

Atty. Paguia is one of 'em who got balls, and I admire him for that. I would want a conclusion similar to his. Indeed, if it walks and talks like a duck, it's a duck.

I also agree that 1021, by itself, does not reverse the calling out of the AFP.

Unfortunately, objectively speaking, it does not amount to martial law (the discussions are in my previous blogs, and inasmuch as I want to discuss further, it might be sub judice).

HILLBLOGGER said...

Atty at Work,

Is that so? What if someone hired you even for a symbolic dollar and he/she becomes a client, could you discuss it?

Could I access your blogsite? If so, could you link it here please?

Rizalist said...

Bystander--In my conversations with paguia, he also explained this take on the meaning of "WHENEVER IT IS NECESSARY"--this apparently is not an arbitrary thing that means whenever SHE deems it necessray, but has a technical criterion for deciding IT: which is that it becomes necessary to call out the AFP ONLY WHEN the civilian police can no longer "prevent or suppress" lawless violence etc. Paguia is only saying, the PP 1017 did not claim it had become necessary in this sense. He's also suspicious that it was done in such a rush, they don't even realize these formal constitutional requirements have been violated.

Rizalist said...

ATTY-
forgive my ignorance, so give us some guidance here. How does "sub judice" apply to blogs like this? My blog is the practical equivalent of my private diary laying out in the open on a street corner, in which I scribble stuff and allow others to do the same. But I take your warnings serious.

bernardo F. Ronquillo said...

Hillblogger, I am with in your admiration of Atty. Alan Paguia. He is really one hell of a courageous lawyer. Wala sa kalingkingan niya si Panganiban.

There is only one leader right now who can claim that he was elected President by 11 million voters who are still with him inspite of being kicked out of Malacanang and is still in jail with everything thrown at him including the kitchen sink. ERAP is the man!

It is just too bad that those who installed Gloria but who are now asking her to resign cannot accept him. Nevertheless, there is no one among them who is bigger than him. Not Drilon, not Noli, and yes not even Cory.

The problem really is not that there is no alternative, but rather FINDING SOMEONE WHO IS ACCEPTABLE TO ALL. And seemingly, that is an impossible task. GMA is one lucky lady indeed.

Rizalist said...

bfr,
i woke up this morning with a sinking feeling that the Philippines truly is a FAILED STATE now. What I didn't realize perhaps is that it failed 5 years ago. Been re-examining my whole attitude to Erap recently and concede I am one of those you referred to. But the apathy we are accusing the people of in some places, is completely justified in those 11 or 12 million who voted for him. Because we the elite sent them a message on 20 Jan 2001 -- this OUR democracy and not yours. Their apathy merely consists of their sad and silent agreement with that!

today, we are beating the chest of a cadaver, hoping to raise even a single heartbeat of popular democracy. It is not forthcoming.

bernardo F. Ronquillo said...

DJB, that was quite an admission you made and I admire you for it. Yes, I also believe that ours is a FAILED STATE not because of what is happening today but because of what happened 5 years ago, plus what happened during the last Presidential elections.

You are part of the elite and I belong to the poor masses of our land. And now that you are reexamining your attitude towards Erap I can feel free to say what is in my heart. I have always believed that the elite stole the EDSA Uno Revolution from the masses who came out by the millions on their own. And yes, I did hear that unspoken message from the elite who took over government on January 20, 2001: This is THEIR democracy and not OURS.

You pointed out that our apathy consists of our sad and silent agreement with that! I say GUILTY, yes we are, because we let them have their merry way that culminated in their kicking out someone we consider as one of our own, Erap.

But consider, DJB, after EDSA Uno & Dos the masses have to go back to the task of ekking out a living, "isang kahig, isang tuka," while the elite goes back to their palatial homes without worrying about food that day and the next and with control of the government to boot. IT WAS NOT APATHY, DJB, IT WAS NECESSITY. Hindi pagwawalang-bahala kundi kawalan ng laman ng sikmura. Narinig na ba ninyo ang iyak ng isang sanggol na gabi na ay ni hindi pa nag-aalmusal? Uunahin siya ng isang INA bago ang anumapaman.

Hindi kailangan ng mga dukha ang isang lider na ekonomista; ang kailangan nila ay isang lider na ang puso ay naka-KILING para sa kanila. Kaya hindi ko ikinahihiya na ang ibinoto ko ay si
Fernando Poe, Jr. sapagkat kahit anung pintas pa ang sabihin nila ang kiling ng puso niya ay para sa DAIGDIG NG DUKHA AT API. Mas higit siyang tao kaysa kay Gloria!

Rizalist said...

Right you are, BFR! Who can be apathetic to the hunger and plight of their own children?

Tom said...

I commend you, DJB, for owning up to your past mistake. Sana hindi pa huli ang lahat. Sana makaahon pa ang Pilipinas sa kanyang pagkakalugmok.

Hanga din ako sa talas ng mata at talino ni Atty Paguia. Critically important talaga yung connective na "AND" doon sa 1017. Sa ganang akin, hindi nga na-rescind ang military rule part ng 1017. Talagang tuso ang mga tauhan ni GMA. Mabuti na lang at may mga ever vigilant na gaya ninyo. Salamat.

ricelander said...

I am not particularly predisposed to looking at the fine prints of the law to gauge this government's adherence to it. I think you do that only if you believe the President and her people have a great record of respect for the law or at least a predilection for an appearance of legality. Without the latter we have no common grounds to debate. After all, legal interpretations could go either way, even towards the most bizarre way, (remember that weird legal carpentry that brought about "constructive resignation"?!), depending on would render the interpretations and what motivations are more overpowering.

I suppose it is best to look at the
issue from the perspective of what GMA needs to stay in power. Legal justifications would come in only as an after thought,believe me, as in "legal yan o illegal, hayaan mo 'yang si Gonzales maghanap ng pang-takip; andiyan naman si kuwan at si kuwan sa Supreme Court, e, anong silbi nila.." hahaha!

Kayo naman, masyadong seryoso...Do't get mad; get even!

Rizalist said...

Tom, kaya nga umalis sa PDI matapos nang 8 taong pagsusulat sa kanila noong 2003, at hindi nila makita ito. Ngayon lang nila iniisip mga bagay na ito!

Rizalist said...

ricelander--this is a lil different than looking at the fine points of the law. Paguia's point is that LEGALLY we already are under military rule. If we expect to have the Rule of Law when she's gone, we have to uphold it even today, when she isnt! We have to have a principled consistency, otherwise, it IS anarchy.

Tom said...

In a way pala, ang 1017 ay sampal sa mukha ng PNP. Based on point number 8, wala pa namang determination na hindi kaya ng PNP na patahimikin ang "kaguluhan," tinawag na agad ni GMA ang military. E di parang wala siyang tiwala sa PNP!

The Public Thing said...

Dean you remember Chavit S back in 2001? I was just wondering who were the Marine Officers at stand-by in ULTRA, it was their plan B actually to force Erap to resign.

Rizalist said...

The name I've heard mentioned in this regard is "General Espinosa" but perhaps John Marzan knows this area a lil better than me?

john marzan said...

heh. you mean edgardo espinosa, riz?

http://politicaljunkie.blogspot.com/2006/03/what-gma-said-before-copa-members-back.html

anyway, another good post from you sir.

Punzi said...

Sir,

Already made my comments on sub judice as applied to PP 1017:

http://thepunziblog.blogspot.com/2006/02/this-mornings-thought.html

FYI.

Without Borders said...

dear djb: not only that. the government is contemplating to violate our other basic right to travel, to find gainful employment, and pursuit of happiness. i discussed this in my blog today (www.davidllorito.blogspot.com). im posting this to help create awareness on the issue that will soon hit OFWs specifically the nurses, airline mechanics, and teachers.

HILLBLOGGER said...

DJB,

By the way, there is a kind of thing going around in cyberspace about the AFP powerpoint presentation re LEFTIST-MILITARY ALLIANCE TO DO A COUP D'ETAT.

The feeling I'm getting is that they are starting to believe Palace spin. The aired propaganda on TV will have an immense impact on the ordinary pinoy/pinay who is not really familiar with military and para-military maneuvers and therefore can not immediately see through the Palace propaganda. Before you know it, maaawa pa sila kay Gloria! Ano ba naman yan!!!!

(Btw, I rang an AFP military officer friend 2 star rank to tell him that their powerpoint presentation was not backed by any single hard physical evidence that there was a coup d'état foiled, launched, attempt, conspiracy, blah-blah on which Gloria based her SOE, etc. - he was "nahihiya" particularly when I told him that our "mutual" 4-star general friend here thumbed the Palace-AFP plot spin down based on their powerpoint presentation).

The thing is those guys in the Palace (and some idiots in the AFP) think they can fool people all the time...

How could Ed Ermita, a former Lietenant General, Vice-Chief of Staff, AFP, ex DND Undersecretary, a 3-time congressman in charge of the Lower House Defence Committee, former Secretary of Natl Defence and now Executive Secretary or Little Mr President ALLOW this spin? He no longer has any honor left!

I posted my comments below in haste over at http://www.quezon.ph/blog/?p=856#comments

Plan A of Oplan Hackle: That was similar to Joma Sison’s plan back in the late 60s when he started recruiting Victor Corpuz who finally defected in 67.

Exactly that - there’s nothing new. The tactic of an attack from the ‘nayon’ to the site of central government over a period of time is JoMa’s dogma. That someone lifted that from Joma’s website and passed it off as the current tactical doctrine of a new found left-military alliance is highly plausible..

If for the sake of argument, we accept government thesis of a modern or latter day version of Oplan Hackle, the government has to produce evidence of a a united left wing and military alliance by way of naming names, military defectors and backers. Or one junior officer in active service backed by two very old retired military officers with a few civilian names are not exactly a proof of attempted government overthrow.

Moreover, if we are to continue on the premise that Operation Hackle would indeed culminate in the overthrow of Gloria and her government on 24th February, then the AFP thesis is defeated because to reach their objective, the tactical alliance would have needed at least 1 army division and at least the same number of leftist fighters from the NPA in order to achieve a realistic overthrow attempt.

I doubt that they would have been able to do that. Why? LOGISTICS; you need weapons, ammunitions, trucks, vehicles, other sort of motorized transport to get those men (and arms) - NPA & military adventurers - into severla battle orbits or towards their designated targets.

How do you propose to do that without being noticed by the major service commands? Are they forgetting that with military checkpoints put up in every single junction in the archipelago, how could an AFP military component get away with all the logistics without being discovered! The Palace is taking people for a ride!

These palace people are spin masters. Unbelievable that they would try to force such thing in people’s throat.

Wow! But they have the power of propaganda…

I propose that we train an accusatory gun at them - COUP D’ETAT IN 2001! If people are serious about stopping the propagation of Palace shits, I suggest that people turn around and fire a salvo that they will not ever forget: INDICT THEM for coup d’état…

HILLBLOGGER said...

If you wish to attack the legality of the SOE, attack the basis of the SOE, attack their evidence (Atty at Work already said this) - they will be obliged to present hard, physical evidences, etc.

Their basis hinges on an attempted coup d'état. So let's see their evidences...

Rizalist said...

2001 is an important aspect of this. But I guess what needs to be understood and deconstructed is the story they weave about Oplan Hackle in the propaganda video which I hope you've watched (in case you didn't noticed PC has Google Video streaming capability now -- Paglaban sa Kataksilan being unfortunately my debut video in the post previous to this one with all the documents). One impt thing that happened today is that Gen. Danilo Lim outright denied to the NBI the role Senga claims he played in the plot. That's a big part of the storyline in the video. (My coverage of his statements is in Ye Olde today). I also noticed the "formulaic" surround the cities from the countryside thingy they stuck in the video (hohumhum) and found it strange that they claim such a protracted process which hasn't worked in 30 years would now materialize in a halfmillion man march on Malacanang sometime around May 1. Sheesh. I've watched it now about ten times and everytime it gets to look more and more like a scary fairy tale for Assumptionistas, -- very young Assumptionistas. But these critiques are only rhetorical. We need more FACTS!

HILLBLOGGER said...

DJB,

What do you mean WE need to present more facts?

THEY have to defend themselves in the SC!

Di ba, there are groups questioning the legality of the SOE - well, attack the basis of the declaration so they will be obliged to present evidences - then attack those evidences - those evidences DO NOT and CAN NOT POINT to an attempted coup d'état...

Atty-at-Work said...

Hillblogger, that's the difficult part - the burden of proof is on the petitioners (Randy David, Tribune, etc). PP 1017 enjoys the presumption of being valid and consistent with the constitution. Unfortunately, PGMA is presumed to have performed her functions in a regular manner. As you requested, my previous discussion is here: http://fredpamaos.i.ph/blogs/fredpamaos/index.php?item=weekender-forecast-the-state-of-the-state-of-national-emergency&catid=35 (darn, that link is so long)

DJB, sub judice rule is basically a prohibition against making comments on a case while it is pending, with the purpose of preventing undue pressure and influence on the court (will have to post the references).

I agree with items 1 to 7 in Atty. Paguia's discussion. However, as to No. 8, the Constitution requires that it must be "necessary", without any modifier. How do we determine the necessity? The previous ruling states that the President has full discretion to determine the necessity of calling our the AFP. The discretion, though, is not absolute. The guage is this: does it constitute "grave abuse of discretion".

My forecast is stated in my previous post (the link above) - it is NOT unconstitutional (although I'm really hoping for the contrary ruling).

HILLBLOGGER said...

Atty at work, I see your point.

Say, Randy David's petition, can he not use the AFP "presentation's' and the Palace film to lay claim that the Palace made a false allegation that there was a conspiracy to overthrow the Republic by coup d'état to proclaim their SOE thereby forcing the hands of the Palace to present evidences, which Randy David could then attack...

Don't know, ain't a lawyer - am just a simple sailor and a simple "militarist".

Lord Dracula said...

Atty. Paguia is brilliant, but he was utterly destroyed by the Supreme Court. That is an indication on how the SC will act on petitions regarding 1017. If they can suspend a lawyer indefinitely for calling spade a spade, what more to dismiss 1017 because it is moot?

Again, the best logical attack is to call all the acts of government taken in the name of 1017 as illegal.

Too bad the SC hearing was buried by another GMA tactic - distraction.

Rizalist said...

Fred, Alan Paguia was very specific about that point so let me go over it again. The phrase "whenever it is necessary" is supposed to have a very technical meaning , which is this. Under normal circumstances, the civilian national police maintains law and order. It BECOMES NECESSARY for the Commander in chief to "call out the Armed Forces" to maintain law and order "throughout the Philippines" WHENEVER and only whenever, the civilian national police cannot perform that function. Paguia says the President never established that necessity, although the point you made yesterday is very well taken that it doesn't mean the police become inactive whenever the AFP is called out. Regarding "grave abuse of discretion" this occurs according to Paguia when she calls out the AFP and it is not necessary in the sense just described. But he also told me something about "clear and present danger." He said this was actually obsolete in modern jurisprudence, and mentioned a new principle in use: BALANCING OF INTERESTS. Know anything more about this? He was saying that this was also the criterion now for deciding if there was grave abuse of discretion in specific situations, the reason being that the Commander in chief may not call out the AFP for just any arbitrary reason and has to demonstrate that in the balance of national interests, it is the wise thing to do, what he terms, "a reasonable necessity." Thanks

Rizalist said...

BTW folks, check out the Punzi Corner Blog too from my Blog roll. he has a long post on these matters. thanks

Atty-at-Work said...

Hillblogger, there can no longer be counter-presentation because I understand they are supposed to simultaneously file their respective Memoranda. Things are really frustrating.

Lord Dracula, good thing you reminded me of that - distraction. Allow me to use that in my "Dictatorship for 'em Dummies" =)

HILLBLOGGER said...

DJB,

Just as I thought, on a purely moral view, BGen Lim COULD not have plotted with the NPAs (he's a goddamn West Pointer for one thing) - "General denies plotting against Arroyo " http://news.inq7.net/top/index.php?index=1&story_id=68748

All the while when I was saying that there WAS NO COUP D'ETAT ATTEMPT, FOILED, CONSPIRED, LAUNCHED, ETC. BLAH-BLAH, I was only basing my opinion on the Gloria's failure to present evidences RIGHT AWAY and confirmed by her preposterous AFP powerpoint presentation & that idiotic film, there could not have been a coup d'état attempt. If you dig deeper, you'll find there was no truth to Gloria's allegations.

Gloria abused her presidential powers with her SOE.

Atty-at-Work said...

DJB, I hate to sound like an apologist for Gloria.

First, they can easily argue for the necessity. The plot involves the Scout Rangers and the Marines - particularly Lim and Querubin. These officers and their units were involved in past coups. They are highly trained and are using the AFP's latest weapons. Lim went to speak with Senga. Querubin admitted that he planned to join the Friday march together with his men (although supposed to be unarmed). Given the shape of the PNP, I don;t think they can handle that. Now, I believe calling out the AFP is not limited to lawless violence/rebellion (or attempts to create lawless violence/rebellion) caused by civilians - it also includes those caused by AFP personnel.

The "clear and present danger" and the "balancing of interests" tests (the earlier test was the "dangerous tendency" test) are primarily applied in case of conflicts between State regulations and the right to free speech and press. Proc 1017, however, does not concern anything about free speech and press (but the implementation by the police is a different picture altogether).

Given my forecast, what I hope will be done is this: a set of general guidelines on the exercise of these powers in order to prevent future abuses.

Rizalist said...

atty,
haha gma apologist? you? actually I brought this up with AP too: I asked him about the situation where the problem is within the military itself and so how could the police handle that? He did say that this did not necessitate "calling 'out' the AFP, and ought to be handled under the Articles of War, as they are now doing with a guy whose name I forget just now.

But I get your point about the wide latitude of presumed regularity the President may be given--"discretion." Here we get into that "factual bases" consideration -- which is what I was referring to about FACTS, HB.

thanks for insight, atty-at-work.

Maybe I'll ask alan to come tomorrow night and participate here????

Atty-at-Work said...

Thanks, too, DJB. Oh, if Alan (naks! first name basis ako) decides to join tomorrow...do let me know...looking forward to it.

HILLBLOGGER said...

Atty at work, what necessity? What plot? Who were plotting? How were they plotting? And plotting to do what? Where are the military-NPA plans of actions, list of logistics, details of troop movement, etc., in other words, WHERE ARE THE EVIDENCES OF A COUP PLOT?

Re: "Querubin admitted that he planned to join the Friday march together with his men (although supposed to be unarmed)." That is not a coup d'etat! It was an act of mutiny at WORST! Not even REBELLION!

Re: "Lim went to speak with Senga." So what? That does not constitute a coup d'état attempt or conspiration. At worst, he's committed an act of insubordination if INDEED he asked Senga to withdraw support for a commander in chief, besides if it were really the case, why hasn't Senga scheduled a Court Martial to try Lim? Indeed hardened coup d'etatist as he is, Lim went to Senga without "AFP's latest weapons".

Is there no legal tactic available in those law books back home to force Gloria to show her hand (that she was lying about the state of so-called emergency)?

If what Palace says is true that they have been MONITORING NPA and AFP military officers conspiring to do a coup d'état on or about the 24th of February, they should have a film showing the coup d'etat conspirators in some kind of conspiratory action!

We must remember that she alleges that there's a COUP d'ETAT attempt which is her basis for her SOE!

When a commander-in-chief (albeit illegitimus) goes on nat'l TV to announce that she is proclaiming the state under emergency because there is a coup d'état conspiracy, she should immediately present her evidences because COUP D'ETAT is a very serious crime against the government of a democratic republic which concerns the entire nation, the population and not just one person in a palace!

It makes it even more compelling for such CIC to back up her allegations with a declaration of directives of arrest orders against the coup d'état conspirators - officers and men - in the military RIGHT THEN AND THERE ON TV to help appeal to the public for their support.

But heck no, Gloria did not do any of those things. She abused her "presidential" powers gravely. And she wants to convince people she didn't by pushing those ghastly AFP frogshit evidences in our throats TODAY - they are nothing but a figment of the Palace's warped imagination.

I don't believe there was a coup d'état conspiracy, much less a coup d'état attempt scheduled on or about the 24th of February 2006.

Gloria's motive for declaring her SOE was to pre-empt the Edsa I celebrations growing into a potentially, uncontrollable EDSA 2 replication. But she made up all these conspiracy evidences.

The country has long been in a state of emergency, if you want to be technical about it by why did she declare it on 24th Feb.She was induced by pure, anadulterated panic! She was SCARED!

Now is the time to scare her even more!

Pingkian said...

I agree with Atty Paguia. PP1017 has a context and the context, i believe, does not support the proclamation as indicated in the video and actions of gloria viz a viz the alleged coup plotters.

HILLBLOGGER said...

Funny, Pingkian reminds of Pingkian Rd in Baguio (It's Pingkian Road, right DJB? or something similar in sound) that JoMa Sison traversed on his way to a 'safe house' where he was eventaully captured...

Tom said...

All these legal maneuverings and tactics presuppose a somewhat independent judiciary (in my purely layman's thinking). That doesn't seem to be the case right now. That's why as much as people wish only for a constitutional solution to the present dilemma, others are losing hope because those who have a total and utter disregard for the constitution seem to get the upper hand while those who try to uphold it are relegated to the trash bin. It almost seems that unless the greater populace is enlisted by a few brave men/women (a la Yul Brynner and his band of misfits in Magnificent Seven empowering the locals and eventually subduing Eli Wallach and his bandidos), the current administration would continue to prevail for a while. Scary.

Pingkian said...

I agree wholeheartedly. To add, to disregard the context is to disregard from which the law originated and to rob it of its sustance and spirit.