What to Expect from President Duterte’s “State of Lawlessness” Declaration

Elpidio V. Peria
3 September 2016

davao bombing

Davao City bombing aftermath, from  http://philstar.com

First thing that should be pointed out is that this is NOT a declaration of martial law in the country, and even President Duterte said so in his press statement when he visited the site of the bombing in Davao City early morning of Saturday.

This power emanates from the commander-in-chief powers of the President as laid out in the 1987 Constitution and it is usually called the President’s “calling out power” as said by the Supreme Court in the case of David v. Arroyo, (G.R. No. 171396, May 3, 2006) where then President Gloria Macapagal-Arroyo issued Presidential Proclamation 1107, declaring a state of national emergency in February 24, 2006 because of purportedly the alliance between some military officers, leftist insurgents of the New Peoples’ Army and members of the political opposition all aimed at toppling President Macapagal-Arroyo from power.

We will not delve into what happened in that case as it is history, but the same case will be a useful guide in determining what to expect now with this similar declaration from President Duterte.

So, going back to what’s in that calling-out power by the President, the Supreme Court in that case has this to say:

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action.

What is ordinary police action, the Supreme Court in that case did not clarify, but citing Justice Vicente V. Mendoza, an eminent constitutionalist, the following are the things that the Supreme Court said CANNOT be done under the calling-out power as they are part of the martial law powers of the President and they can be done only when there is such a valid declaration of martial law and the suspension of the writ of habeas corpus:

(a) arrests and seizures without judicial warrants;(b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees.


Hopefully, clarifying what can and cannot be done under this declaration of a state of lawlessness should help the citizen gauge how far President Duterte will act either within or beyond the confines of the limits of the 1987 Constitution. It will also help if the Executive Secretary will already issue the written Proclamation expressing such wishes of the President lest it be misconstrued that he may be over-reacting to a situation and maybe his words may have been misunderstood. The sooner the written proclamation is issued, the better for everybody to know what are the factual bases for this declaration and until when this will be exercised, since the Supreme Court case we have cited says that the President has the sole discretion when or what are the factual bases for this invocation of the calling-out power and it is also the President who can set the time-frame until when this state of affairs will remain.

The written proclamation from the Executive Secretary is also necessary so that the citizens will know whether this declaration is justified by way of a state of a national emergency which changes the entire terms of the debate since such declaration will involve a different set of powers from the mere exercise of the calling-out power. An exercise of a power under a declaration of national emergency will result in the President having the power during the state of national emergency to take over any privately owned public utility (water, telecommunications, transportation, shipping) or business affected with public interest without authority from Congress.

Again, to reiterate, we are NOT in that situation now.


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