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Saturday, March 04, 2006
Aportadera: Need to enact an Emergency Act
By Billy Aportadera
Rights and duties
PROCLAMATION 1017 of President Gloria Macapagal-Arroyo declares that the Philippines is in a state of national emergency.
The proclamation described the national emergency, which consisted of a plot to overthrow the Arroyo government and replace it with a civilian-military group involving leftist and rightist elements. This is the public interest that compelled President Arroyo to direct the Armed Forces to raid and "take over" The Daily Tribune. She invokes the Constitution to justify her exercise of the emergency powers.
The catchall phrase is "when public interests requires," which is left to the discretion of the President to determine. While the discretion is granted to the President, the temporary takeover of public facilities should be really "temporary" and "under reasonable terms prescribed" by the Congress.
There is no law prescribing how long a state of national emergency should last, and under what terms the President may exercise her presidential powers. For the present, judicial relief is the only venue to define a state of national emergency.
Thus, once a state of national emergency is declared, the absolute will of government's "public interest" prevails. All the government needs to continue is to have public opinion on its side. If public opinion can be kept, in sufficient degree, on the side of the government, statutes, laws and regulations under the proclamation can continue to be passed, the Constitution has no meaning.
The Philippine Constitution does not define "national emergency." There is also no legislative or judicial definition arising from previous Philippine experience. This is the crux of the confusion that the Proclamation 1017 and its implementing General Order 5 are causing.
In other jurisdictions, "national emergency" is defined as "a state of national crisis; a situation demanding immediate and extraordinary national or federal action."(Black's Law Dictionary).
In the United States case of Brown v. Bernstein, D.C. Pa., 49 Supp. 728, their Supreme Court declared that Congress has made little or no distinction between a 'state of national emergency' and a 'state of war.' The Government of Canada enacted the "National Emergencies Act" which defined a "national emergency" as an urgent and critical situation of a temporary nature that exceeds a province's ability to cope and that threatens the welfare of Canadians and the ability of the Canadian government to preserve the "sovereignty, security and territorial integrity of Canada."
The Canadian law provided for the duration of a state of national emergency to last up to 90 days, but can be extended. In addition, the Canadian law lists the special powers that the federal government can exercise at its discretion.
In order to avoid the trampling of human rights during a state of national emergency, the limits of the exercise of executive powers and authority must be defined and the rights of the citizens clearly outlined. There is need for Congress to enact an Emergency Act.
As the United States Supreme Court once said, "It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error."
(Atty. Abelardo "Billy" Aportadera Jr. is a former Commissioner on Human Rights and former Assistant Ombudsman. He is a practicing lawyer and a member of Philconsa.)
For Bisaya stories from Davao. Click here. (March 4, 2006 issue)
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