SC: ‘1017’ constitutional

In a landmark ruling, the Supreme Court (SC) yesterday upheld the constitutionality of Proclamation 1017, in which President Arroyo declared a weeklong state of national emergency in February to quell a reported coup.

Voting 11-3, the tribunal declared that the proclamation was "constitutional insofar as it constitutes a call by the President for the (military) to prevent or suppress lawless violence."

In the same vein, it also upheld as constitutional General Order No. 5 — PP 1017’s implementing order — that directed security forces to take "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence."

However, the court declared "unconstitutional and illegal" the way PP 1017 was implemented by security forces, saying the military and police "committed acts which violate the citizens’ rights under the Constitution."

It held that the ensuing government crackdown on street protests, warrantless arrests of political opponents and a police raid on The Daily Tribune, a newspaper critical of the administration, were illegal for lack of enough legal basis.

Malacañang is considering whether to seek reconsideration on that score.

Executive Secretary Eduardo Ermita nevertheless hailed the court decision, saying it sustained Mrs. Arroyo’s authority to call on the Armed Forces to maintain order and protect national security.

"We could say that it was expected in the sense that we just followed the provisions of the Constitution," Ermita told The STAR, praising the court for acting "with much dispatch and objectivity with only the public interest at heart."

"With such a decision coming from the highest court of the land, our people can expect better decisions from the judiciary because, after all, we all go by the rule of law, and that is our oft-repeated public announcement."

Press Secretary Ignacio Bunye defended PP 1017, saying Mrs. Arroyo acted swiftly to protect national security.

"It was clear that without the decisive action of the government at that time, the threat would not have been met head-on and quashed immediately," Bunye said.

"In a way, we are glad that, at least, the SC decision affirmed the government’s inherent right to protect itself and the president’s power under the Constitution to call out the armed forces as its commander-in-chief to prevent or suppress lawless violence," he said.

The President issued the proclamation on Feb. 24, the eve of the 20th anniversary of the downfall of the Marcos dictatorship, to counter a "tactical alliance" among rogue military officers, communist rebels and elements of the political opposition aimed at toppling her.

She placed the country’s forces on alert and ordered the arrest of several military and police officers implicated in the plot.

Six leftist legislators were also charged over the alleged coup and prominent opposition figures were arrested. Police also raided the offices of the Tribune, which the government perceived as an anti-Arroyo paper, on T. M. Kalaw street in Ermita.

She ran into fierce criticism that she was emulating the draconian measures used by late dictator Ferdinand Marcos to implement martial law.

Mrs. Arroyo lifted the emergency declaration after a week, but her political opponents challenged it before the Supreme Court.

In its 78-page ruling penned by Associate Justice Angelina Sandoval-Gutierrez, the SC said it still took up the issue because police actions were taken and legal questions posed by the proclamation "must now be resolved to prevent future constitutional aberration" in case the issue again comes to the fore.

It ruled that PP 1017 was "limited to the calling out by the President of the military to prevent or suppress lawless violence, invasion or rebellion."

The SC said the proclamation’s "extraneous provisions giving the President express or implied power to issue decrees; to direct the (military) to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and to impose standards on media or any form of prior restraint on the press" went beyond constitutional limits.

No takeover

Citing the Constitution, the SC also declared that the president "in the absence of a legislation, cannot take over privately owned public utility and private business affected with public interest."

It also struck down a PP 1017 provision containing an Arroyo order directing the Armed Forces to "enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction."

Mrs. Arroyo is limited to issuing executive orders, administrative orders, proclamations, memorandum orders, memorandum circulars, and general and special orders, the court pointed out.

"She cannot issue decrees similar to those issued by former President Marcos under PP 1081. Presidential decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of martial law under the 1973 Constitution."

Proclamation 1081 was the declaration issued by Marcos on Sept. 21, 1972, imposing martial law.

The court also declared illegal the series of warrantless arrests on administration opponents as well as Mrs. Arroyo’s order banning anti-government protests, saying that "not only was their right against warrantless arrest violated, but also their right to peaceably assemble."

It ruled that the government failed to meet the legal requirements for such.

"Assembly means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent," the court said.

On the arrests made on university professor Randy David and other protesters, the court said they "were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right."

The SC also strongly criticized the police raid on the Tribune as well the "arrogant warning of government officials to media" against making reports critical of the government as "plain censorship."

"This court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon," it said.

Arroyo opponents were hoping the court would declare PP 1017 unconstitutional outright but were still happy with the ruling.

"How can an issuance be partly constitutional and partly not constitutional?" said Renato Reyes, secretary-general of Bagong Alyansang Makabayan.

Alternative Law Groups, one of the petitioners, said the court decision was a "clear indictment of the repressive acts" of the Arroyo administration.

House Minority Leader Francis Escudero said the ruling vindicates the political opposition on Mrs. Arroyo’s "dictatorial tendencies."

"The power of the executive department to suppress lawless violence is granted by the Constitution but you do not suppress constitutionally guaranteed rights," said Senate Majority Leader Francis Pangilinan, a former lawyer.

Sen. Rodolfo Biazon, who was head of the nation’s armed forces, said Mrs. Arroyo’s security advisers should be held responsible.

In a final note, the Supreme Court stated in its ruling: "It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic state. During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty." — With Aurea Calica, Paolo Romero, Jess Diaz, Marvin Sy, Christina Mendez, Jaime Laude, Katherine Adraneda, AFP