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ANALYSIS

What’s in a name? State of National Emergency

/ 02:11 PM September 06, 2016

“State of national emergency on account of lawless violence” in Mindanao is President Duterte’s final answer. This is what is declared by Proclamation 55, which he and Executive Secretary Salvador Medialdea signed Sept. 4.

Not “state of lawlessness.” Not nationwide.

It was a surprising choice.

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President Gloria Macapagal-Arroyo declared a “state of national emergency” in 2006, under the infamous Proclamation 1017. The Supreme Court stated its wording “was lifted from Former President [Ferdinand] Marcos’ Proclamation 1081 [declaring martial law].”

Following Proclamation 1017, Inquirer columnist Randy David was arrested for standing beside rallyists wearing “Oust Gloria Now” shirts at Edsa. Others were arrested without warrant and the Daily Tribune’s offices were raided.

The SC indignantly nullified the arrests and the raid. Former Inquirer publisher and now International Criminal Court Judge Raul Pangalangan was interpellated by then Chief Justice (and now Inquirer columnist) Artemio Panganiban and Justice Reynato Puno in a magnificent three hour marathon on human rights.

However, Duterte and Medialdea’s choice should be welcome.

Because Arroyo’s state of national emergency was comprehensively dissected by our justices ten years ago, we know exactly what it means. The legendary Randy David v. Gloria Macapagal-Arroyo case is required reading for every law freshman.

The 2016 state of national emergency actually means very little.

Both Arroyo and Duterte primarily invoked Article VII, Section 18 of the Constitution. This authorizes the President to “call out such armed forces to prevent or suppress lawless violence.” It is an ordinary power the President may use anytime.

The phrase “lawless violence” is the exact phrase in the Constitution and should be taken in this non-alarming context. It is the phrase Duterte cited in his 5 AM interview the day after the Davao bombing, right at the site. The court has upheld every invocation of this calling out power for decades.

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The court thus upheld Arroyo’s authority to “call out” the armed forces in 2006. However, it nullified everything else. Proclamation 1017 called on the armed forces to enforce presidential “decrees.” During martial law, these were the equivalent of laws passed by Congress, but the court stressed martial law is long over.

Proclamation 1017 also invoked Article XII, Section 17, which allows government takeover of utilities and businesses in “times of national emergency.” The court stressed this is authorized by Congress, not the President.

And again, the warrantless arrest of David and others and the Tribune raid were struck down.

Duterte’s Proclamation 55 actually acknowledges all of the above. All it says is that the armed forces will be called out to suppress “lawless violence,” solely under Article VII, Section 18 and not under other powers Arroyo tried to invoke.

Proclamation 55 even specifies Mindanao only, where Arroyo’s Proclamation 1017 covered the entire country.

No warrantless arrests. No presidential decrees. No takeovers of utilities or businesses. No widespread curfews. No left field speculation from instant “legal experts.”

Duterte and Medialdea’s lawyers clearly examined the David case when they drafted Proclamation 55. If you are still worried, just ask any freshman law student to explain all this and go back to placing bets on what Duterte might say to Vladimir Putin.

Or ask David to recount waiting in a makeshift detention cell for photocopies of Proclamation 1017, as his captors scratched their heads over what to charge him with beyond the t-shirts of strangers standing beside him, and as Pangalangan marshalled the University of the Philippines law faculty to get him out.

* * *

I detailed calling out the armed forces in “Guarding the Guardians: Addressing the Post-1987 Imbalance of Presidential Power and Judicial Review” (86 Phil. L.J. 523 [2012]). React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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TAGS: Analysis, Duterte, lawless violence, lawlessness, national emergency, Rodrigo Duterte, state of lawlessness, State of National Emergency
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