DAVID V. ARROYO
Proclamation 1017 – Take Care
Clause – Take Over Power – Calling Out Power
In February 2006, due to the escape of
some Magdalo members and the discovery of a plan (Oplan Hackle I) to
assassinate GMA she declared PP 1017 and is to be implemented by GO 5. The said
law was aimed to suppress lawlessness and the connivance of extremists to bring
down the government. Pursuant to such PP, GMA cancelled all plans to
celebrate EDSA I and at the same time revoked all permits issued for rallies
and other public organization/meeting. Notwithstanding the cancellation of
their rally permit, KMU head Randolf David proceeded to rally which led to his
arrest. Later that day, the Daily Tribune, which Cacho-Olivares is the editor,
was raided by the CIDG and they seized and confiscated anti-GMA articles and
write ups. Later still, another known anti-GMA news agency (Malaya) was raided
and seized. On the same day, Beltran of Anakpawis, was also arrested. His
arrest was however grounded on a warrant of arrest issued way back in 1985 for
his actions against Marcos. His supporters cannot visit him in jail because of
the current imposition of PP 1017 and GO 5. In March, GMA issued PP 1021 w/c
declared that the state of national emergency ceased to exist. David and some
opposition Congressmen averred that PP1017 is unconstitutional for it has no
factual basis and it cannot be validly declared by the president for such power
is reposed in Congress. Also such declaration is actually a declaration
of martial law. Olivares-Cacho also averred that the emergency contemplated in
the Constitution are those of natural calamities and that such is an
overbreadth. Petitioners claim that PP 1017 is an overbreadth because it
encroaches upon protected and unprotected rights. The Sol-Gen argued that the
issue has become moot and academic by reason of the lifting of PP 1017 by
virtue of the declaration of PP 1021. The Sol-Gen averred that PP 1017 is
within the president’s calling out power, take care power and take over power.
ISSUE: Whether or not PP 1017 and GO 5 is constitutional.
HELD: The issue cannot be considered as moot and academic by
reason of the lifting of the questioned PP. It is still in fact operative
because there are parties still affected due to the alleged violation of the
said PP. Hence, the SC can take cognition of the case at bar. The SC ruled that
PP 1017 is constitutional in part and at the same time some provisions of which
are unconstitutional. The SC ruled in the following way;
Resolution by the SC on
the Factual Basis of its declaration
The petitioners were not able to prove
that GMA has factual basis in issuing PP 1017 and GO 5. A reading of the
Solicitor General’s Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with supporting
reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in
the military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the
growing alliance between the NPA and the military. Petitioners
presented nothing to refute such events. Thus, absent any contrary
allegations, the Court is convinced that the President was justified in issuing
PP 1017 calling for military aid. Indeed, judging the seriousness of the
incidents, GMA was not expected to simply fold her arms and do nothing to
prevent or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not
stifle liberty.
Resolution by the SC on the
Overbreadth Theory
First and foremost, the overbreadth
doctrine is an analytical tool developed for testing ‘on their faces’ statutes
in free speech cases. The 7 consolidated cases at bar are not primarily
‘freedom of speech’ cases. Also, a plain reading of PP 1017 shows that it is
not primarily directed to speech or even speech-related conduct. It is
actually a call upon the AFP to prevent or suppress all forms of lawless violence.
Moreover, the overbreadth doctrine is not intended for testing the validity of
a law that ‘reflects legitimate state interest in maintaining comprehensive
control over harmful, constitutionally unprotected conduct.’ Undoubtedly,
lawless violence, insurrection and rebellion are considered ‘harmful’ and
‘constitutionally unprotected conduct.’ Thus, claims of facial overbreadth are
entertained in cases involving statutes which, by their terms, seek to regulate
only ‘spoken words’ and again, that ‘overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are sought
to be applied to protected conduct.’ Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.
Resolution by the SC on the
Calling Out Power Doctrine
On the basis of Sec 17, Art 7 of the
Constitution, GMA declared PP 1017. The SC considered the President’s
‘calling-out’ power as a discretionary power solely vested in his wisdom, it
stressed that ‘this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. The SC ruled that GMA has
validly declared PP 1017 for the Constitution grants the President, as
Commander-in-Chief, a ‘sequence’ of graduated powers. From the most to
the least benign, these are: the calling-out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare Martial Law.
The only criterion for the exercise of the calling-out power is that ‘whenever
it becomes necessary,’ the President may call the armed forces ‘to prevent or
suppress lawless violence, invasion or rebellion.’ And such criterion has been
met.
Resolution by the SC on the
Take Care Doctrine
Pursuant to the 2nd sentence
of Sec 17, Art 7 of the Constitution (He shall ensure that the laws be
faithfully executed.) the president declared PP 1017. David et al averred that
PP 1017 however violated Sec 1, Art 6 of the Constitution for it arrogated
legislative power to the President. Such power is vested in Congress. They
assail the clause ‘to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction.’ The
SC noted that such provision is similar to the power that granted former
President Marcos legislative powers (as provided in PP 1081). The SC
ruled that the assailed PP 1017 is unconstitutional insofar as it grants GMA
the authority to promulgate ‘decrees.’ Legislative power is peculiarly
within the province of the Legislature. Sec 1, Article 6 categorically
states that ‘[t]he legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of
Representatives.’ To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify GMA’[s exercise of legislative
power by issuing decrees. The president can only “take care” of the carrying
out of laws but cannot create or enact laws.
Resolution by the SC on the
Take Over Power Doctrine
The president cannot validly order the
taking over of private corporations or institutions such as the Daily Tribune
without any authority from Congress. On the other hand, the word emergency
contemplated in the constitution is not limited to natural calamities but
rather it also includes rebellion. The SC made a distinction; the president can
declare the state of national emergency but her exercise of emergency powers
does not come automatically after it for such exercise needs authority from
Congress. The authority from Congress must be based on the following:
1 There must be a war or other
emergency.
(2) The delegation must be
for a limited period only.
(3) The delegation must be
subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be
exercised to carry out a national policy declared by Congress.
Resolution by the SC on the
Issue that PP 1017 is a Martial Law Declaration
The SC ruled that PP 1017 is not a
Martial Law declaration and is not tantamount to it. It is a valid exercise of
the calling out power of the president by the president.
