CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
7 September 2015
The President’s lawyers – Attys. Medialdea and Panelo, from http://abante.com.ph
Finally, after some delay, the written issuance backing up President Duterte’s verbal declaration of a “state of lawless violence” (or “state of lawless violence” ) in the country has resolved the matter of what to call the situation we are in right now in the Philippines and Presidential Proclamation No. 55, series of 2016 has referred to our situation as a “state of national emergency on account of lawless violence in Mindanao.”
At the outset, with the 1987 Constitution as our guide, there seems to be a comingling or mixing up, of concepts here which indicates an attempt by the President’s lawyers to give some degree of flexibility to the President that will enable him to deal with the threats that the nation is currently faced with.
While President Duterte may have that flexibility because of how Proclamation No. 55 is written, the vagueness or ambiguity of what this “state of national emergency on account of lawless violence” means and its possible differing interpretations when actually applied or used by the police and the military, including also the varying understandings of the citizens who will be subjected to the police action from this Proclamation might lead to higher tension which feeds on itself that may further result in unnecessary counter-productive moves by everyone concerned.
It is therefore important for us to understand the many ways the concept of “national emergency” is written within our legal system, mainly our 1987 Constitution and the other laws that provide for the same thing so we may have an idea how “national emergency” is usually applied and implemented in these other settings.
First of all, it must be pointed out that the provision in the 1987 Constitution, sec. 18 of Article VII, that was cited by Proclamation No. 55, series of 2016, as the basis for the declaration of “state of national emergency on account of lawless violence” does not really deal with “national emergency” at all; in fact, if you dear reader may be so inclined, download and examine for yourself that entire provision of sec. 18 and see for yourself if the words “national emergency” is there. As far as I have looked at my downloaded text, those two words “national emergency” does not appear there.
The words “national emergency” appear in the 1987 Constitution through :
a) Sec. 23, article VI on the Legislative Department, which says :
In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
Under this kind of national emergency, the Philippine Congress (meaning our Philippine Senate and House of Representatives) passes a law that spells out what can or cannot be done by the President. As written in the 1987 Constitution, it is for a limited period and subject to any conditions or restrictions that Congress may set, but as to how long that limited period may be, the Constitution did not further elaborate. If Congress does not set the time frame for its duration, then this kind of national emergency will have a maximum duration of 3 years, as that’s the time the Congress will continue to exist, as Congresst adjourns every 3 years to pave the way for the regular mid-term elections. But it may also be shorter than that 3 years if Congress so decides.
b) Sec. 17, Article XII on National Economy and Patrimony, which says
In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest
What has happened in our recent history is that the President, like President Gloria Arroyo when she issued Proclamation No. 1107 in 2006, gets to exercise this power under the terms that the President may set.
c) Sec. 5, par. 7 of Article XVI, General Provisions, which says :
The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.
This deals with the appointment of the Chief of Staff of the Armed Forces of the Philippines, which is a big deal as the Chief of Staff is the operational head of the military. The provision says the President, the Commander-in-Chief of the military, may extend the time frame for how long the Chief of Staff may serve as such head of the military.
There is also another instance in the 1987 Constitution where only the word “emergency” appears, and this is when the President certifies to the necessity of the immediate enactment of any pending legislative measure in Congress and the 3-day reading requirement is dispensed with.
Now, looking at the laws that we have already passed that have the words “national emergency” on them, what comes up first is Republic Act 6826, a law passed by Congress to give some emergency powers to President Cory Aquino arising from the coup d’ etat she sustained during the December 1, 1989 rebellion committed by certain elements of the Armed Forces of the Philippines aided and abetted by civilians.
That law gave extraordinary powers to President Cory Aquino, among which are :
(1) To protect the people from hoarding, profiteering, injurious speculations, manipulation of prices, product deceptions, and cartels, monopolies or other combinations in restraint of trade, or other pernicious practices affecting the supply, distribution and movement of food, clothing, medicine and medical supplies, office and school supplies, fuel, fertilizers, chemicals, building materials, implements, machinery equipment and spare parts required in agriculture, industry and other essential services, and other articles of prime necessity, whether imported or locally produced or manufactured;
(3) To temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest that violates the herein declared national policy: Provided, however, That to the extent feasible, management shall be retained, under the direction and supervision of the President or her duly designated representative who shall render a full accounting to the President of the operations of the utility or business taken over: Provided, further, That whenever the President shall determine that the further use or operation by the Government of any such public service or enterprise is no longer necessary under existing conditions, the same shall be restored to the person entitled to the possession thereof;
(6) To stagger the working hours of, and adopt a flexible working schedule for, employees and workers in government, and whenever it becomes necessary, in the private sector;
(7) To conserve and regulate the distribution and use of power, fuels and energy and ensure adequate supply of the same.
We also have the so-called Cheap Medicines Act, or Republic Act 9502, where in situations of similar national emergency as declared by the President, what will happen is that this will enable the Intellectual Property Office of the Philippines to issue compulsory licenses so that a local company may be able to manufacture medicines that are patented, so the medicines can be provided to the country.
There is also the Price Act or Republic Act 7581, which gives the President the powers to impose price ceilings (limits on the prices that may be set by retailers of goods ) in cases of
(1) The impendency, existence, or effects of a calamity;
(2) The threat, existence, or effects of an emergency;
(3) The prevalence of widespread acts of illegal price manipulation;
(4) The impendency, existence , or effect of any event that causes artificial and unreasonable increase in the price of the basic necessity or prime commodity; and \
(5) Whenever the prevailing price of any basic necessity or prime commodity has risen to unreasonable levels.
This law was amended by Republic Act 10623, which gives the President the power to extend the duration of these price controls, but not for more than sixty (60) days.
There are other instances of other emergencies, though they were dubbed as crises, like the Irrigation Crisis Act of 1989 or Republic Act 6978 where the National Irrigation Administration was tasked to undertake a ten-year program for the construction of irrigation projects in the remaining one million five hundred thousand (1,500,000) hectares of unirrigated but irrigable lands, whether in the lowlands or in the uplands, including other related project components nationwide.
Then there’s the Electricity Power Crisis Act of 1993 or Republic Act 7648, which authorized President Fidel V. Ramos then to enter into negotiated contracts for the construction, repair, rehabilitation, improvement or maintenance of power plants, projects and facilities subject to certain requirements and it was for a period of 1 year only.
Another crisis measure is the National Water Crisis Act of 1995 or Republic Act 8041, which created the Joint Executive-Legislative Water Crisis Commission (JELWCC) chaired by the Executive Secretary which was tasked by Congress, among other powers, to undertake nationwide consultations on the water crisis and a study of the entire water supply and distribution structure; to facilitate coordination between Congress and the executive department in formulating and implementing the government’s water crisis management policy and strategy.
The reader of this blog may now be confused at this stage, why bother to enumerate these laws where “national emergency” is exercised?
Because we want to discern or extract patterns, lessons or principles in how the national emergency provision is written in earlier legislations and from this exercise what we can see is that even the invocation of national emergency in the laws mentioned, what powers that can be exercised are actually enumerated and clearly-written; these laws also provided when these acts may be done and there is a time-frame for up to when these powers may be exercised and there is process provided as to how this national emergency will end.
But here, in Proclamation No. 55, series of 2016, there is no listing of what the President can do, there is also no time-frame until when this situation will remain, even one newspaper, the Philippine Star, described it as “indefinite”.
Now, since the President’s lawyers invoked sec. 18 of Article VII of the 1987 Constitution we can look closely at that provision, but as mentioned earlier, there’s really nothing there which tells or guides us what the President can do in a national emergency setting declared by Proclamation No. 55 since the Constitutional provision on which the Proclamation is based does not actually say anything about national emergency.
But at the same time, the call-out power that we referred to in the previous blog post cannot also be exercised just the same since the Proclamation talks about a “state of national emergency on account of lawless violence”. This “state of national emergency on account of lawless violence” is an entirely different legal concept from “a state of lawlessness” or “state of lawless violence”. The President’s lawyers should have just stuck to that earlier term used by the President in this Proclamation and not attempt to add an element of puzzlement to what is already a confusing situation.
Considering that sec. 18, Article VII of the 1987 Constitution was used, we may somehow be lulled into thinking that the safeguards for the abuse of Martial law powers laid out in that provision may also be used now, like the 60-day duration of Martial law, the duty of the President to report within 48 hours to Congress after such proclamation, the automatic convening by Congress within 24 hours from such proclamation, among others. But really, we cannot invoke such safeguards since what the Proclamation declared is not a situation where there is invasion or rebellion.
So, summing this all up, we have a state of affairs called a state of national emergency, that invoked a provision in the 1987 Constitution that does not really have anything to do with national emergency, thus we don’t really have any guide what to expect now. But we cannot refer to the other Constitutional provisions that deal with national emergency as they are not even cited as part of the justification in the whereases clause of the Proclamation. It is a classic vague situation where anything can happen.
What may have happened is that this may be an oversight on the part of the President’s lawyers because the President may be rushing already to go to Laos for the ASEAN Summit and he cannot leave the country without providing legal clarity to what he said earlier is a “state of lawlessness” and this is what we get.
Unless the lawyers of the President, or the President himself, who is a lawyer, were thinking that they will really declare Martial law.
If this is what is really happening or maybe this is what may eventually happen in the coming days, the citizen, whether pro- or anti- Duterte, should be vigilant; the moment the President exercises the powers Justice VV Mendoza said in the previous blog post should not be done (i.e., (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) in a state of emergency situation, then we have a situation that is similar or is actually a state of, martial law.
If that happens, then, it’s back to the barricades and the streets or the Supreme Court for those who will question these actions of the President.