More dangerous than martial law

From Kit Tatad:

A “state of national emergency” need not provoke mass anger at all. Yet patently illegal acts predicated on Proclamation 1017 have transported us to an unfamiliar danger zone removed from the precincts of the Constitution.

Some have described 1017 as de facto martial law. That may not be completely correct. It is a different beast altogether, and infinitely more demonic and dangerous.

Under Article VII, Section 17 of the Constitution, the President and Commander-in-Chief “may call out such Armed Forces to

prevent and suppress lawless violence, invasion or rebellion.” In case of invasion or rebellion, when the public safety requires it, he or she may suspend the privilege of the writ of habeas corpus or declare martial law throughout the Philippines or any part thereof for a period not exceeding sixty days.

Proclamation 1017, on the other hand, whose genesis does not appear in the so-called Commander-in-Chief provision, has no fixed duration. It is not made to stand on anything as hard and visible as invasion or rebellion, but on something more esoteric and less knowable — a conspiracy of Left, Right and Center.

While martial law needs the concurrence of Congress, 1017 needs no such thing. And while martial law “does not suspend the operation of the Constitution,” 1017’s first victim is the Constitution.

The crude banning of all rallies and the equally crude attempt to padlock the Tribune were not specifically ordered in 1017 or in its companion General Order (GO) 5. The police appear to have simply assumed what they could do, or were expected to do, under 1017.

But contained in 1017 is a clear, and clearly unconstitutional, provision that seeks to install military rule. It seeks to transfer the regular civilian function of enforcing the law and maintaining peace and order —from the Philippine National Police (PNP) to the Armed Forces of the Philippines (AFP). The PNP is then ordered by GO 5, together with the AFP, “to prevent and suppress acts of terrorism and lawless violence.”

The problems of 1017 do not begin here. They begin with its false, if not farcical, assumptions. Consider these:

There exists a conspiracy among elements of the political opposition, the “authoritarians” of the extreme Left and “military adventurists” of the extreme Right “to bring down the duly constituted government elected in May 2004.”

“These conspirators have repeatedly tried to bring down the President.” Their claims “have been recklessly magnified by certain segments of the national media.”

“This series of actions is hurting the Philippine state — by obstructing governance including hindering the growth of the economy and sabotaging the people’s confidence in the government and their faith in the future of the country.”

These constitute “a clear and present danger to the safety and the integrity of the Philippine state and of the Filipino people.”

President Arroyo then commands the AFP “to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution.”

Are these alleged facts the same as those known to our people? Not at all.

This is what they know:

There is no Left-Right-Center conspiracy against “the state” or “the duly constituted government elected in May 2004.” Nor has there been any “repeated effort to bring down the President.”

What exists is a nationwide campaign to compel Mrs. Arroyo to relinquish presidential power. This is being waged openly by Filipinos of various political shades who are united in their firm belief that Mrs. Arroyo has no legitimate constitutional mandate. They insist on making a very clear and serious distinction between Mrs. Arroyo and “the state,” between Mrs. Arroyo and “duly elected President,” between Mrs. Arroyo and “the duly constituted government.”

To the best of their knowledge, Mrs. Arroyo is there, without the people’s genuine consent. They want her out, and they expect her, like any civilized politician of her rank anywhere in the world, to recognize that they, from whose consent derives the authority of government, have not given her their mandate.

No segment of the national media has ever “recklessly magnified” the “claims” of this group. On the contrary, the mainstream media have not hesitated to magnify Mrs. Arroyo’s claims of achievement, even when they turn out to be totally unfounded. The balance has never tilted in favor of the opposition; it has always been in favor of Mrs. Arroyo.

Ranged against the Tribune, which remains a small paper, are the much larger pro-Arroyo broadsheets. Some of them may run adverse headlines and critical opinion, but they always manage to put her unusually large pictures on the front page, even without an accompanying news story. They also casually shut out certain types of anti-Arroyo exposes.

On radio-TV, Malacanang exerts a prior claim on prime time. In most stations, an opposition statement may be aired once after the official reaction has been aired at least twice or more. A Malacanang broadside may not allow an opposition reply at all. Under Pagcor’s guidance, block-timers have to follow a certain line. Pagcor-funded news forums must try to divert public debate from the unresolved legitimacy issue, or the latest official scandal to something innocuous or peripheral.

Mrs. Arroyo’s support in the contractual media is magnified several times over in the state-owned or state-controlled organizations. These are run like Lakas or Kampi party organs. They not only propagandize for the regime; they also attack the opposition. One cannot, therefore, accuse the opposition of misusing the media, or the media of lending themselves to any political design of the opposition. That honor belongs solely to the administration.

Some have suggested that the Tribune incident arose from 1017’s order to the AFP “to enforce obedience to all laws and to all decrees, orders and regulations promulgated by me personally or upon my direction, and as provided in Section 17, Article XII of the Constitution.” The use of the word “decrees” — which we only associate with martial law under Marcos — might have encouraged the PNP to assume, with Justice Secretary Raul Gonzalez, that Section 17 of Article XII allows Mrs. Arroyo unilaterally to take over media establishments.

It does not. This provision says, “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.”

The key word here is the state, and Mrs. Arroyo is not the state.

To effect a takeover, the President needs a specific authority from Congress, pursuant to Article VI, Section 23 (2) of the Constitution which says: “In times of national emergency, 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.”

Only then may the takeover proceed. Even so, it is doubtful that Congress would permit a takeover of media as a “business affected with public interest.” Media’s role is well-defined; and the protection of the Bill of Rights is iron-clad. “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

Without doubt, 1017 has no constitutional leg to stand on. Not because one may not declare a state of emergency on false pretenses, but because Mrs. Arroyo may not make the AFP the law enforcement agency of the nation.

The duty to execute the laws is part of the President’s oath. He or she does this with civilian and military support, but with civilian authority always supreme. Mrs. Arroyo seeks to change all this by charging the AFP with a purely civilian police function. Talleyrand would have called it worse than a crime – it is a mistake.

In 1972, Proclamation 1081 allowed Marcos to take full control of the military. Today, 1017 allows a group of generals to take full control of Mrs. Arroyo.

Indeed, there exists a dangerous conspiracy against the state. The world knows who are in it. They are no longer the usual suspects. We must give credit where credit is due.