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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

Location: San Juan, Metro Manila, Philippines

Sunday, February 26, 2006

Cut-and-Paste Powers

For lack of a better term, Proclamation No. 1017 is a cut and paste power.

This is not the first time that GMA has issued a state of “something”.

In 1 May 2001 following the tumultuous assault of Erap forces on the Palace, GMA issued Presidential Proclamation No. 38 which proclaimed a State of Rebellion in the National Capital Region. Then, sometime in July 2003 following the Oakwood mutiny, she issued Proclamation No. 427 declaring a State of Rebellion. So, she is not new to proclaiming a state of something.

Now, this Proclamation 1017. The present state of emergency was ignited by a planned coup or withdrawal of support as euphemistically put by Chief of Staff Generoso Senga. If that is so, why term the whole situation as a state of national emergency? What is the real motive then?

The real motive behind Proclamation No. 1017, I think, is two fold. To exercise martial law powers without having to declare it and two, to clamp down on media.

First, to declare martial law would have been a death knell for the administration. Filipinos are allergic to the term "martial law" and would have rejected violently to its imposition. The mere mention sends shivers down the spine of those who remember those horrible years. But to let martial law exists in all but name would make it look innocuous.

Moreover, martial law has a life span of sixty days, national emergency, not having been defined in the Constitution itself, has no life span and is ambiguous enough as to allow the government not only to play around the time span but to abuse its powers.

Second, a declaration of a state of rebellion has been defined by the Supreme Court as a devoid of any legal significance in the case of Lacson v. Reyes. So, to declare in this proclamation as another state of rebellion would to be to repeat the same booboo and to prove that the legal team of Mrs. Arroyo, to quote my favorite character actress Cherie Gil, is nothing but a second-rate, trying hard copy cat.

Third, in both previous declarations of state of rebellion, media could not be touched because the powers of the President under the Executive Department (Article VII) provisions of the 1987 Constitution do not permit her to take over companies imbued with public interest because clamping down on media is not one of those powers that a president can do in times of lawless violence, insurrection or rebellion.

So, how does one legally and justifiably clamp down on media?

Simple. By invoking a power of the State to take over industries imbued with public interest while the emergency exists. Media definitely falls under these provisions because media corporations are imbued with public interest. This power is found in another part of the 1987 Constitution, specially, Article XII or the provisions on National Economy and Patrimony.

So, to confuse the general public, the legal team of the president cut and pasted the constitution and make it appear, without justifiable and legal basis, that the president has the right to clamp down on media in times of lawless violence, insurrection or rebellion. Dean Nachura, being the Presidential Legal Counsel notwithstanding, that is constitutionally unsound, absurd and appalling.

The declaration of a state of emergency does not authorize PNP Chief Lomibao or the police to arrest anyone without a warrant of arrest. In the Lacson and Sanlakas cases, the Supreme Court was very emphatic to say that if a declaration of martial law does not curtail constitutional rights, how much less a mere declaration of a state of rebellion? And if a statement of rebellion does not curtail constitutional rights, how much less a mere declaration of a state of emergency?

In my last night’s guest stint at The World Tonight at ANC, Atty. Romulo Makalintal, counsel for the president during the last elections, on phone patch flippantly argued that a state of emergency is no different than a state of calamity. Nobody complains about a state of calamity since both are the same.

In retort, I said the comparison was quite egregious. For one, government does not shut down a newspaper organization or threaten media companies with cancellation of their franchise when a state of calamity exists.

To compare the same without contrasting shows the presidential legal team playing fast and loose with constitutional terms. Hence, if we are confronted with a situation fraught with dangers, it is because the administration intentionally designed it to be so to allow greater leeway for abuse of questionable exercise of constitutional powers.

The road to Dante’s hell is now open with the welcome sign: “Abandon hope all ye who enter here”. Welcome to the dawn of a cut-and-paste presidency. This is what apathy has finally brought us to.


Anonymous andres said...

hi edwin,

what do you propose to do now? what concrete actions can we do to fight this undeclared martial law? i am sure the lawyers will go to court, the press will fight, but what about us ordinary but committed citizens?

2:16 PM  
Anonymous Arbet said...

Sir, a certain Atty. Lambino appeared in the Fortress, telling the media that as a lawyer for the Koalisyon ng Nagkakaisang Pilipino (KNP or Coalition of United Filipinos), he saw no alterations nor any visible signs of cheating in the KNP’s copy of the election returns. Question: even if it is true or not, is his action a violation of the client-counsel privilege? Even if the relationship has ended, does this free the lawyer from the privilege?

10:22 PM  

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