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.
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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