THE RECENT Inquirer article of former Ambassador to the United States Albert F. del Rosario as well as the media statements of former Speaker Jose de Venecia, former Defense Secretary Avelino Cruz and former Justice Secretary (now Presidential Legal Counsel) Raul Gonzalez about emergency rule disturbed many readers.

Call out power. Del Rosario wrote that against his advice, “emergency rule was nevertheless declared by the Palace on Feb. 24, 2006 .… On the sixth day after emergency rule was declared, Assistant Secretary Chris Hill—…. now the new US ambassador to Iraq—visited the Palace. By the ninth day, emergency rule had been lifted.”

To be precise, President Gloria Macapagal-Arroyo did not impose “emergency rule” on Feb. 24, 2006. Rather, she issued Presidential Proclamation (PP) 1017 “declaring a State of National Emergency” in which she directed the Armed Forces of the Philippines: (1) “to prevent or suppress all forms of lawless violence, invasion or rebellion”; (2) “to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction”; and (3) “to take over or direct the operation of any privately-owned public utility or business affected with public interest.” This declaration is not the same as emergency rule.

In David vs Arroyo (May 3, 2006) penned by Justice Angelina Sandoval-Gutierrez, the Supreme Court ruled that, under the first item called “call out” power, the President may indeed validly summon the AFP to aid her in containing lawless violence. However, not being a declaration of martial law or a suspension of habeas corpus, PP 1017 cannot be invoked to justify the warrantless arrest of Randy David and others, or to ban public assemblies of the Kilusang Mayo Uno, or to censor media like the Daily Tribune.

Take care power. Under the second item called “take care” power, she can call on the AFP to help her enforce laws that are relevant in suppressing lawless violence, invasion or rebellion but not statutes irrelevant to these three crimes. Hence, the AFP cannot enforce laws relating to customs, family relations and contracts.

More important, she cannot “enforce obedience to all laws and decrees… promulgated by me personally or upon my direction.” The Court stressed that she could not enact decrees “similar to those issued by former President Marcos” during his heydays. It observed that this quoted proviso of PP 1017 was lifted from PP 1081 that imposed martial law in 1972.

Take over power. The third item, called the “take over” power, authorized the military to seize privately owned companies affected with public interest like Meralco, Philippine Long Distance Telephone Company, Philippine Airlines, Philippine Daily Inquirer, ABS-CBN Network, etc. In his interview with ANC News, Secretary Raul Gonzalez affirmed the government’s intention to take over these companies via PP 1017.

However, the Supreme Court struck down this extravagant ambition, ruling that the takeover prerogative was granted to Congress, not to the President. The Court distinguished between the power to declare a state of national emergency that was given by the Charter to the President from the exercise of emergency powers such as the taking over of public utilities, which was granted to the legislature.

Realizing that Congress may not be able to convene during wars or other emergencies, the Constitution authorized it to delegate the exercise of emergency powers to the president through a law prescribing reasonable terms thereof. To this day, however, Congress has not so delegated this prerogative to the president.

To sum up, while the President has the authority to declare a state of national emergency and to call out the military to assist her in suppressing lawless violence, invasion and rebellion, she cannot – without an enabling law – exercise emergency rule. Specifically, she has no power (1) to issue decrees, (2) to command the AFP to enforce laws other than those related to lawless violence, invasion or rebellion, and (3) to take over privately owned public utilities.

Sadly, PP 1017 included powers that the present Charter does not allow even under a valid martial law or emergency rule edict. Had the President stuck to her authority to declare a state of national emergency to help her suppress the lawless violence gripping the country at the time, the Court could have fully upheld her. However, the brazen attempt to smuggle extraneous powers tainted an otherwise valid exercise of executive power.

My concurring opinion as chief justice in David vs Arroyo lamented this brazenness: “Some of those who drafted PP 1017 may be testing the outer limits of presidential prerogative and the perseverance of this Court in safeguarding the people’s constitutionally enshrined rights. They are playing with fire, and unless prudently restrained, they may one day wittingly or unwittingly burn down the country…”

I added that those who truly care for the President should see to it that she remains within the penumbra of the Charter, thus: “Perhaps this country would never have had to experience the wrenching pain of dictatorship; and a past President would not have fallen into the precipice of authoritarianism, if the Supreme Court then had the moral courage to remind him steadfastly of his mortality and the inevitable historical damnation of despots and tyrants.”

Let not anyone, whether friend or foe, piper her into the same precipice.

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