I appeared on local TV and drew some flak via text phone from a lawyer friend regarding my take on Proclamation No. 1017. Basically my position (i.e., IMHO) is that there is no substantial difference between the words of Proclamation 1017 (including General Order No. 5) (BTW – thanks to PCIJ for the link) and Art. 7, Sec. 18 of the Phil. Constitution. On its face the document appears sound and probably will survive a constitutional challenge. Any criticism levelled against it should be deemed applicable to the constitution itself, if the critic is to be consistent, because, as I’ve said, the wordings used in both documents are essentially similar. The proclamation talks about preventing and suppressing lawless violence, insurrection and rebellion. The Constitution talks about preventing or suppressing lawless violence, invasion or rebellion. Looks more or less the same to me. In fact, I think the proclamation is (to use a word I heard on the Dong Puno show – thanks to Rizalist for the MP3) a legal superfluity. It doesn’t invest the president with new powers. With or without the proclamation the president under the constitution has the power, whenever it becomes necessary, to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. As to who determines whether such a necessity exists the Supreme Court held in IBP vs. Zamora that the President “necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s wisdom or substitute its own.” Moreover, “In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis.”
It seems to me the proclamation only serves to complicate matters; under the constitution PGMA can already do the things she wants to do in her proclamation even without the proclamation! My lawyer friend thinks she wants to exercise martial law without calling it martial law so that she can evade the oversight power of Congress in Sec. 18 of Art. 7 of the Constitution. On my part I don’t read the constitution as requiring the president to proclaim martial law in cases of rebellion and invasion before she can call out the armed forces. The way I see it it’s optional on the part of the President to proclaim martial law in cases of rebellion and invasion. The Constitution simply says that if she thinks it necessary she can call out the armed forces in cases of lawless violence, rebellion and invasion, with or without proclaiming martial law. That’s her choice and she has a constitutional right to it. However, if she chooses to proclaim martial law, then Congress’ oversight powers come into play. The same applies if she suspends the privilege of the writ of habeas corpus. But if she merely wants to call out the armed forces and do nothing else – that’s her constitutional option. And Congress can’t complain that it can’t use its oversight power.
Besides, I have a problem with reading between the lines of the document, no matter how well-founded such reading may be. If people think the document is intended to intimidate and is evil they are probably right, and they have the right to express their opinion vehemently and to peacably assemble against what they perceive as evil. If the document is eeriely similar to Marcos’ Proclamation 1081 then people have a right to be afraid (be very afraid!). They can condemn it all they want (I might even march beside them doing precisely that). But they have to do better than that when it comes to challenging the constitutionality of the document before the Supreme Court.
My parting shot was: “No matter how politically and morally valid our sentiments against the President and her proclamation may be, they remain mere sentiments and have no legally compelling force unless converted into formal legal justifications.” That, as I see it, is how our system works under the Rule of Law.