PRES. ARROYO’S EMERGENCY PROCLAMATION: A MARCOSIAN LEGAL TOOL TO STAY IN POWER

CODAL condemns Pres. Gloria Arroyo’s latest violation of the Constitution by issuing Proclamation 1017 declaring a state of emergency. This proclamation is no different from the proclamations issued by Pres. Ferdinand Marcos during martial law in his attempt to stay in power despite the peoples revulsion to his reign.

Firstly, Sec. 17, Art. XII which was used as basis by Proclamation 1017 is a martial law provision initially crafted by Pres. Ferdinand Marcos during his reign to empower him to take over private businesses. Sec. 17 provides that:

‘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.

Pres. Arroyo is not the State and there is no way that the Constitution could have granted the President granted the plenary powers of a “state” especially after the peoples’ martial law experience with Pres. Marcos. The intent of the 1987 Constitution, which is steeped in provisions ensuring congressional checks to the powers of the President, is to grant such power to the President only upon a law passed by Congress. The ‘state’ in Sec. 17 therefore means Congress issuing a law and the President implementing such. It is impossible for the 1987 Constitution to have granted Pres. Arroyo the unbridled power to take over private businesses without Congressional approval. It must be noted that congressional approval is required even if she exercises her much bigger martial law powers. Furthermore, this is clearly reflected in Sec. 23 (2) of Art. VI which expressly provides for emergency powers:

Sec. 23 (2) “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.



Since the Constitution requires congressional approval of the President’s bigger powers of martial law and other national emergency powers, Proclamation 1017 cannot survive legally and constitutionally without legislative participation. Clearly, there was no law or congressional concurrence with Proclamation 1017 which was unilaterally declared by Pres. Arroyo. After attacking the legislative power of Congress through EO 464, Pres. Arroyo has, like Pres. Marcos, again arrogated unto herself one more legislative function.

Secondly, using Sec. 18, Art. VII of the Constitution does not grant constitutionality to Proclamation 1017 not only because a ‘state of emergency” is not found in that section but also because of the absence of factual basis for such. Sec. 18 states that :

Sec. 18 “The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial laws or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.

Nowhere in this provision is a “state of emergency” that grants her additional powers mentioned. Since the Constitution expressly provided for ‘emergency’ powers in other provisions, she cannot proclaim such emergency under Sec. 18. Should Pres. Arroyo insist that Proclamation 1017 is based under her martial law powers in Sec. 18, then, such proclamation cannot be deemed to have granted her additional powers. She is just giving notice that she is calling on the armed forces to suppress rebellion or lawless violence within the framework of her current and existing powers prior to the proclamation. She cannot interpret this as a grant of additional powers to suppress rallies, arrest without warrants, or take over media facilities.

Furthermore, there must be lawless violence, rebellion or invasion before the President may call out the armed forces. Rallies are not “lawless” violence but are legitimate exercise of the peoples’ rights under the Constitution. By deeming rallies as ‘lawlessness’ Pres. Arroyo has, like Pres. Marcos, illegally considered the exercise of constitutional rights an attack on her and national security.

Lastly, since the proclamation grants her no additional power, the Constitution and the Bill of Rights are not suspended during a state of emergency as the Supreme Court has said so in Sanlakas vs. Angelo Reyes, to wit:

Should there be any "confusion" generated by the issuance of Proclamation No. 427 and General Order No. 4, we clarify that, …, the mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights. Indeed, if a state of martial law does not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas corpus, then it is with more reason that a simple declaration of a state of rebellion could not bring about these conditions. At any rate, the presidential issuances themselves call for the suppression of the rebellion "with due regard to constitutional rights."

Malacanang’s and NTC’s regulation of media: Illegal

The violent dispersal and the arrest of rallyists such as Prof. Randy David and Atty. Argee Guevarra are clearly without legal basis. The right against arbitrary arrest under Art. III of the Constitution has not been suspended. Pres. Arroyo’s declaration that ‘all rally permits are revoked” is also illegal considering that Mayors and local governments are the ones granted the power to grant or revoke these permits under the law. Freedom of assembly is still operative.

The sanctions threatened against media with government closure or takeover for ‘covering’ opposition activities is an attack against press freedom, since freedom of the press still subsist. The warnings by executive officials are therefore illegal and subjects these officials to criminal and administrative liabilities.

Pres. Gloria Arroyo has totally become a “Pres. Marcos”, on the very day that Pres. Marcos was ousted from power twenty years ago today. CODAL demands that Pres. Arroyo to respect the Bill of Rights and the Constitution despite her Proclamation. Since Proclamation 1017 does not grant her additional powers but merely causes further instability, we demand that she withdraws Proclamation 1017. CODAL calls on all lawyers to come out openly and publicly criticize the violation of the Constitution and peoples’ rights. CODAL calls on lawyers to offer their legal services to the people who will become victims of the implementation of Proclamation 1017. CODAL also condemns the arrest in particular of Atty. Argee Guevarra who was not only exercising his constitutional rights but also practicing his profession as a lawyer. CODAL urges members of the legal profession, including law students to come out and be part of the peoples assertion of their basic constitutional rights against the impending threat of martial rule.


Reference : Atty. Neri Javier Colmenares—Spokesperson
Date : 25 February 2006

GOVERNMENT ULTRA INVESTIGATION IS HIGHLY POLITICIZED AND IRREGULAR: INDEPENDENT BODY NECESSARY

The reluctance of the government in investigating Virgilio Garcillano and the Garci wiretapping incident or Jocelyn Bolante and the fertilizer fund scam is inversely proportional to the alacrity with which it launch investigation on the Ultra incident. While the NBI, PNP, DILG, and DOJ refuses to seriously investigate the Garci Tapes and the Fertilizer Fund Scam, all these agencies including the NTC are now scrambling to get into the act of investigating the event which caused the death of seventy-four people. Even Rep. Rodante Marcoleta who, for a lawyer and a lawmaker, is still unaware that the Constitution prohibits members of Congress from practicing their profession, got into the act by offering legal service in filing a suit against ABS-CBN.

The designation of PNP Officers and Mayor Vicente Eusebio in the investigating body headed by the DILG is highly irregular since they themselves are, or should be, the subject of the investigation particularly on whether they failed to perform their duties under RA 6975 as Amended by RA 8551. Sec. 24 of RA 6975 or the PNP and DILG Act provides that :

Sec. 24. The PNP shall have the following functions:
a) Enforce all laws and ordinances relative to the protection of lives and property
b) Maintain peace and order and take all necessary steps to ensure public safety

Mayor Eusebio on the other hand is given operational control and supervision over the Pasig PNP as defined in Sec. 62 of RA 8551:

Sec. 62. “ The term operational control shall mean the power to direct police investigation … and traffic control…

It shall also include the power to direct the employment and deployment …of the PNP…to ensure public safety and …peace and order in the locality.

Employment refers to the utilization of the …PNP for the purpose of protection of lives and properties, enforcement of laws, maintenance of peace and order …and ensuring public safety


Under the Art. 34 of the Civil Code both the PNP and the Pasig government is liable if they are found to have been negligent, to wit:

Art. 34. When a member of the city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages and the city or municipality shall be subsidiarily responsible therefore.

Since the growing Ultra crowd has been camped in Pasig streets and public thoroughfares for days, the PNP and the Local Government is required to “take the necessary steps to ensure public safety” to preempt any possible threat to lives and property, with or without an invitation from the organizers. Strangely, Gen. Vidal Querol whose has wrongly but vigorously implemented the ‘calibrated preemptive response’ policy of Malacanang by violently dispersing much smaller crowds on the pretense that these rallies cause traffic, has not reacted with the same concern for the Ultra crowd.

It is not surprising that the fact finding body composed of the DILG, PNP and Mayor Eusebio absolved the DILG, the PNP and Mayor Eusebio from any liability.

The ABS CBN surely has responsibility for the tragedy in Ultra but the local government and the PNP, under the law, are equally responsible as well in ensuring the health and safety of the people who have been camped out in the streets of Pasig for days.

The fact that Sec. Raul Gonzales finds nothing wrong with the composition and processes of the DILG Task Force is a major cause for concern. We are concerned that he did not find anything wrong with the Report despite his public admission of the insufficiency of the evidence from which the Report was based. His vociferous attacks against critics of Pres. Arroyo immediately puts into doubt, rightly or wrongly, findings of the DOJ panel he created to investigate the possible liability of a perceived opponent of the President. The DOJ investigation therefore, will only exacerbate the situation as no credible resolution will come out of the process.

We view with alarm the highly politicized manner with which these agencies, including the NBI and the DOJ, have been exercising their powers. Considering their failure to investigate and indifference to the killing of militants, lawyers and journalists, their sudden interest and enthusiasm in an issue involving a perceived critic of Pres. Gloria Arroyo can only be interpreted as an attempt to use their office for the political benefit of the president.

To ensure credibility of the investigation process and assure that the victims are given justice for the possible criminal negligence of any or all the parties involved, CODAL urges the creation of an independent fact finding body composed of credible organizations or persons of known probity such as the IBP. CODAL urges that the DILG report be set aside and should not form part of any new investigation, due to the highly political and irregular process conducted by the DILG.

Lastly, CODAL expresses its agreement to the view that it was poverty that led the people to suffer the inconvenience and indignity of lining up for a chance to get a better life. In the end, it is the government as a whole who is morally responsible for the tragedy in Ultra.


Reference : Atty. Neri Javier Colmenares—Spokesperson
Date : 10 February 2006

EXECUTIVE REFUSAL TO APPEAR IN BUDGET HEARINGS: AN IMPEACHABLE OFFENSE AND A CRIME

The EO 464 issue is no longer limited to its unconstitutionality but also on the criminal liability of executive officials refusing to appear in the Senate, and Pres. Gloria Arroyo’s failure to transmit a written and official justification for her refusal to allow executive officials to appear before the Senate.

Firstly, EO 464 is unconstitutional not only because it violates the constitutional provision on congressional authority to conduct legislative inquiry and approve the budget but also the Right to Information under Sec. 7 of the Bill of Rights which provides:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records and to papers pertaining to official acts, transactions or decisions… shall be afforded to the citizen subject to such limitations as may be provided by law.

The right to information may be regulated but not prohibited and only by law. EO 464 which is not a ‘law’, goes beyond mere regulation.

Secondly, Pres. Gloria Arroyo must officially inform the Senate why she is withholding permission for her cabinet officials to appear before the Senate. Cabinet members cannot just snub the Senate budget hearings without proving that they have in fact asked Pres. Arroyo for permission to appear and such request has been denied. Under Sec. 22, Art. VI of the 1987 Constitution the testimony of Cabinet members may done in executive session if ‘…the security of the state and public interest so requires and the President so states in writing.”

The act of not appearing is more than a mere request for an executive session, in fact it is not even allowed under the provision. Granting without admitting that EO 464 is constitutional, it is imperative, therefore, that Pres. Arroyo fulfills the requirement for a written communication by transmitting the same to the Senate.

Pres. Pres. Arroyo cannot just unilaterally withhold from the Senate information on a budget which she herself has submitted to them. She must not “overlook” the need for an official communication, as required by the Constitution.

Thirdly, the refusal of executive officials to appear before the Senate constitutes a crime under Philippine laws. It constitutes an impeachable offense for Pres. Arroyo for culpable violation of the Constitution as it violates Art. 233 of the Revised Penal Code:

Art. 233. The penalties of arresto mayor …to prision correccional, and perpetual disqualification…shall be imposed upon a public officer who, upon demand from competent authority, shall fail to lend his cooperation towards the administration of justice or other public service…

If convicted, Pres. Arroyo, Sec. Ignacio Bunye and other public officials will suffer imprisonment of up to two years and four months and will be perpetually disqualified from running for public office. No constitutional extension of terms will save her from such disqualification. The impeachment complaint, if ever it is filed, will contain one more impeachable ground against Pres. Arroyo. Unlike Pres. Arroyo, however, cabinet members like Sec. Bunye need not “wait” for an impeachment complaint as they can immediately be criminally charged for their acts.

CODAL is seriously concerned by Pres. Arroyo’s disregard of the Constitution she has sworn to uphold when she took her oath. CODAL condemns the total unaccountability and impunity with which executive officials have arrogantly violated the laws using EO 464 to cover up possible fraud and corruption.

Reference : Atty. Neri Javier Colmenares—Spokesperson
Date : 9 February 2006

INCOMUNICADO DETENTION OF LAWYER CAPT. RIVAS: A VIOLATION OF THE CONSTITUTION

CODAL expresses concern over the incommunicado detention of Capt. Candelaria Rivas currently the subject of a Habeas Corpus Petition filed by her mother, especially since no charges have been filed against her more than a week after her supposed arrest. Capt. Rivas, who had been opposing counsel to some individual CODAL lawyers in human rights cases filed against the military, was transferred to a solitary detention center in Camp Aguinaldo last week. Such form of detention is considered torture under the Bill of Rights, specifically Sec. 12, Art. III of the 1987 Constitution which provides that a detainee has the right to counsel and:

Sec. 12 (2) No torture, force, violence, threat, intimidation or any other means which vitiate free will shall be used against him. Secret detention places, solitary, incommunicado or other similar forms of detention are prohibited.

Solitary confinement also violates Rule 113, Sec. 14 of the Rules on Criminal Procedure which grants the “right of attorney or relative to visit the person arrested”.

The pronouncements of Capt. Rivas against the habeas corpus petition claiming that she is well treated by her captors may have been given under duress considering that she goes back to solitary confinement after the hearing. It is legally inconceivable why anyone, especially a lawyer, would consider confinement without access to lawyers and family a ‘good’ treatment. Under the rules on evidence, the pronouncements of Capt. Rivas supporting her captors or any admission given without counsel, are not given any substantial weight.

Military rules cannot trump the Constitution particularly since Capt. Rivas is not only a member of the AFP but also a member of the BAR. She is also entitled to her rights under the Constitution just like any civilian citizen. The AFP can file the necessary charges against her if they believe that laws were violated, otherwise they should immediately release her.

Being found in the company of an escapee, however, is not a crime under Philippine criminal law, especially if Capt. Rivas met with Capt. Nicanor Faeldon in the exercise of her legal profession. As a general rule, lawyers are duty bound to meet with anyone, even escapees, who merely ask for their legal advice or services.

CODAL supports the decision of RTC Judge Lita Genilo to give due course to the habeas corpus petition by ordering the AFP to explain the detention of Capt. Rivas. We hope the court will grant Capt. Rivas and her mother their rights under the Constitution and order her release if her detention is found to have no legal basis.

We also urge the prosecution of AFP officers, such as Gen. Jovenal Narcise, responsible for her detention should the court find her arrest illegal and her detention arbitrary. Under Art. 125 of the Revised Penal Code such officers may suffer the penalty of prision correccional for failure to deliver a detained person to the judicial authorities within 12 hours, 18 hours or 36 hours from arrest depending on the gravity of the offense charged.

Allowing the military to detain people on the basis of the detainee’s ‘voluntary’ acquiescence to their detention is a revival of the practice during martial law where detainees are made to sign a ‘waiver’ to legalize their detention. This would give the military the go signal to arrest people and “convince” them to support their detention to legalize their imprisonment. It would also completely destroy the time honored 12-18-36 hour rule for arbitrary detention

CODAL’s position is not so much on the merits of the habeas corpus on Capt. Rivas, but on its implications on the practice of law and the exercise of civil rights. It is a position against impunity, violation of rights and a return to martial rule.

Reference : Atty. Neri Javier Colmenares—Spokesperson
Date : 8 February 2006