PROCLAMATION 1017 AND THE DEMISE OF FREE SPEECH

(Note: This is an essay by Prof. Florin T. Hilbay distributed to UP Law students after Malacañang issued Proclamation 1017 which is further explained below.)

On the very day Filipinos were supposed to commemorate the rebirth of democracy in this country, Gloria Arroyo, apparently the target of “a concerted and systematic conspiracy,” issued Proclamation 1017 declaring a State of National Emergency. Using her Commander-in-Chief powers under Art.VII, §18 of the Constitution, she called out the armed forces to “prevent or suppress all forms of lawless violence as well (sic) any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by [her] personally or upon [her] direction.”

The following acts were done pursuant to this Proclamation: (1) all scheduled rallies, with or without permit, whether or not related to People Power I or II, were cancelled; (2) some protesters, including UP Professor Randy David, were apprehended for inciting to sedition and violating BP 880, the Public Assembly Act, while many others were violently dispersed; (3) the National Telecommunications Commission called a meeting of the Kapisanan ng Mga Broadcasters sa Pilipinas at which the Commissioners dangled the possibility of revocation of franchise or takeover of media companies that engage in biased reporting or publication of matters affecting national security, such as interviewing dissidents; (4) a 6p.m. curfew was imposed on the press corps of Malacanang; and (5) at least one major newspaper was raided and others surveilled.

What flashes before the eyes is the screaming disparity between the language of the Proclamation and the manner in which the President operationalized her own command. Indeed, while the Proclamation closely tracks the language of the Constitution, the acts performed under its authority are totally at odds with the guarantees of freedom embodied in the fundamental law it recites. The language is betrayed by the deeds that give it flesh.

The text of the Proclamation cannot be interpreted independent of the way it has been carried out. Those who believe that this is mere “notice” or that it is “pointless” to challenge the proclamation dangerously overlook the fact that all these actions rely, for their legitimacy, on the validity of the proclamation itself.

First. The President has no authority to place a blanket prohibition on rallying. The Bill of Rights declares that no law shall be passed abridging “the right of the people peaceably to assemble and petition the Government for redress of grievances.” Lest the President forget, all authority that she now exercises was derived from the exercise of this right. The right of public assembly is the principle on which the Supreme Court, in Estrada v. Macapagal-Arroyo, grounded the legitimacy of her assumption to power.

The streets constitute a public forum and a marketplace of ideas. To borrow from a court decision, the privilege to use the streets and parks for communication of views on national questions may be regulated in the interest of all; but it must not, in the guise of regulation, be abridged or denied. Proclamation 1017 goes beyond the traditional “time, place, and manner” regulation of public streets by completely denying the right of peaceful assembly.

The core value of free speech is the protection of political dissent. The President does not have the constitutional authority to monopolize speech by prohibiting the peaceful expression by the public of its opinions.

Second. The arrest of Randy David and many other protesters highlights the selective nature of the implementation of a decree that vaguely orders the suppression of lawless violence and obedience to law. Anyone who saw the televised accounts of the rallies would have noticed the arbitrariness involved in enforcing the Proclamation—some were hosed, beaten up, and arrested while others were guarded from a distance. It turns out that this “no rally policy” is really a flexible range of police reactions—from maximum tolerance to intolerance. Thus, the scholar was imprisoned while the religious leader was let loose; the activists were arrested while senators and former President Aquino were tolerated.

The point, of course, is not that everyone who exercised her freedom of speech should have been arrested for the sake of consistency. It is that the decision to arrest people on the streets rests on such a wide discretion that its exercise becomes downright arbitrary. It is this kind of discretionary space that has the maximum chilling effect on our fundamental rights. We lose our freedoms not only when the government denies them but also when we no longer know when the government can deny them.

Third. One would think that the President would be wary about going after the Press, especially with the kind of self-proclaimed freedom that the Fourth Estate enjoys comparatively against many other similar outfits in Asia. But—quite the opposite—the Proclamation refers to the problem of “the claims of [extremist] elements [that] have been recklessly magnified by certain segments of the national media.” If the press does not consider the statements of the NTC before the KBP a threat to its freedom, then we really are in serious trouble.

The threat of takeover or cancellation of license of media entities perceived by the President as providing information inimical to some notion of national interest or security operates simultaneously as a system of prior restraint and subsequent punishment on media. With such threats, the media is compelled to engage in a kind self-censorship that has nothing to do with the search for truth and everything to do with the need to avoid the censor’s wrath. Any publication harmful to the President is a possible source of sanction.

Moreover, the implication of the directive of the NPC is not only to make the media paranoid about striking the “proper balance” between responsible and reckless journalism; it also pushes the media to engage in viewpoint discrimination—news overbalanced in favor of the President is always ok, but news critical of her is now always suspect.
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On September 21, 1972, a Philippine President made a declaration through Proclamation No.1081 the first paragraph of which reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the power vested upon me by Article VII, §10, Paragraph (2) of this Constitution, do hereby place the entire Philippines as defined in Article I, §1 of the Constitution under martial law and, in my capacity as their Commander-In-Chief, do hereby command the Armed Forces of the Philippines, 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 decrees, orders and regulations promulgated by me personally or upon my direction.

Except for the difference in citation of the relevant provision of the Constitution, the ENTIRE italicized portion of Marcos’s infamous proclamation is contained, word for word, in Arroyo’s Proclamation 1017. I invite all citizens to see for themselves and compare both Proclamation 1017 and 1081. They are identical, except for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus. Any first-year law student would discern the reason for the distinction—it is because the non-mention of these two items enables the President to evade, at least in theory, the Congress and the Supreme Court.

Under Article VII, §18 of the Constitution the declaration of Martial Law or the suspension of the privilege of the writ puts the President under the obligation of reporting to the Congress. Her proclamation could also be rebuked by Congress or declared unconstitutional by the Supreme Court. It is therefore in her interest not to openly declare martial law and suspend the privilege of the writ. And yet, despite an absence of the words, the military shadows civilian movements and warrantless arrests have been made.

The legal realist Karl Llewelyn wrote, “the working Constitution is amended whenever the basic ways of government are changed.” What I think he was trying to say is that we should not rely too much on the text of the Constitution or the language of any authoritative text as a source of security, and that the kind of democracy we signed up for may be altered through interpretation by those who hold public power. Thus, we should scrutinize not only what the Constitution says, but what the President says it means; that we should rely not simply on what the President says, but on what she actually does. If we fail to heed this advice, we might find ourselves holding the same Constitution, but with an entirely different meaning.

Pinoy Big Brother: Fort Bonifacio Edition

The government gained a lot of minus points once again yesterday. News broke out around three or four in the afternoon yesterday that a small Marines group headed by Colonel Ariel Querubin marched out of their barracks, to Fort Bonifacio to protest the relief of Major General Renato Miranda as Marines commandant. We saw familiar scenes as major networks covered the events- tanks rolling, heavily armed soldiers marching, military leaders standing their ground in their selected territories and politicians being bugged with curious questions by reporters.

The standoff (from all over the place) took place until almost midnight, where Allega, their new commandant, announced that everything is finally under control. It would have seemed really troublesome and chaotic for the whole country. But back in a remote Marines HQ in Lanao del Sur, the commander there said everything's fine and normal there, which, to me, was really hilarious.

(Oh, there's another scene that's really funny. In what seems to be the main office building of Fort Bonifacio, men of Querubin standing below what seems to be a sign that says "Karangalan", and Allega's men standing below what says "Katungkulan".)

Anyway, the minus ratings points did not come from this slightly disturbing mayhem. It's how the government reacted to this threat that had already been there for a looong long time in the first place.

As initial response to the threat, Secretary Mike Defensor, chief of staff of Malacañang, ordered (requested, he said) mediamen to stop covering the events, as this, he said, would just "worsen the situation, that would cause further problems to the country". What does this tell us, ladies and gentlemen? That Malacañang has adopted the practise of news blackout as a measure for preventing further damage? So it's already an accepted fact in Presiden't Gloria Macapagal-Arroyo's office that concealing the truth from the public is standard operating procedure in times when the already damaged society is compromised.

As I heard this comment coming from the once honorable ex-congressman, I cannot help but think how the Spaniards kept the Filipino under 300+ years of slavery by means of keeping them ignorant of the big picture in the society. Keep them hungry, keep them fools to maintain power.

We were once proud of him as he stood with us in EDSA DOS against Erap. Now I'm ashamed of him. I say, to contain the damage, he should just keep his blabbermouth shut.



As Mike Defensor led the people to further distrust towards the government in his attempt to save the names of the ones he serve in Malacañang, Churches nationwide had been reading a Pastoral Letter during the sermons of the Holy Mass, urging people for restoration of moral values. You can seen the whole transcript in the website of the Catholic Bishop's Conference of the Philippines by clicking on this link here. But let me just quote one statement that truly captures the events that happened yesterday.

"We [CBCP] recommend that the search for truth be relentlessly pursued through structures and processes mandated by law and our Constitution, such as the Ombudsman, the Commission on Human Rights, the Sandiganbayan, and Congress itself as well as other citizens groups. This requires that such bodies be led and run by credible people, persons of integrity and probity."

To be maintain in position, Malacañang has shut it's doors to moral values. Certainly, Malacañang and the Senate is not anymore considered credible at this point, as these two institutions have been taking part in public exhibitions of humiliating and dishonorable acts that the Masses led by the Church has seemingly considered hopeless cases. Change has to start to how they are assigned or elected in the first place. This just means this batch is already written as characters in one of the worst parts of Philippine history that we, the new generation of Filipino leaders, just have to condemn and forget if we are to move on to a different path to progress.

The unfortunate events that transpired yesterday just reiterates another of the obvious symptoms of the cancer of our society today. Aside from leading people to false beliefs, this government saves its ass through desperate compromises where the people, not their interests, are always sacrificed. It is obvious that close-door negotiations between Querubin and Allega (and who knows, people from the government, as well), that resulted to a "peaceful" end, may most likely be a result of a compromise that has to be kept secret from speculative minds of the few (including me, obviously. Teehee.) And oh boy, what conclusions did they make: They have convinced Querubin that Miranda was not relived, he RESIGNED! Are they telling us:

1. That Miranda is a retard? Who would resign from military office specially if he's already months from retirement? We all know the military has fat rewards to it's people who have devoted many fruitful years in service. Why retire now?

2. That proper allocation in the Armed Forces of the Philippines is ridiculously faulty? This, of course, is a big no-no. I've learned in highschool COCC that information allocation is one of the foundations of the success of a military institution. Imagine receiving "We won" in war instead of "Be alert". Obviously, if this is true, Querubin has received and readily supported a false claim, which, again, is a big no-no to a marine-man like him. Which brings us to...

3. That Querubin is a retard? Leading soldiers and tanks to Fort Bonifacio without any clear intentions and plans and claims to back it up. It's unbecoming for a soldier of his status, considering the quality of service that he has shown in the recent years.

4. That they're all bored so they stage this dud coup de 'etat all just for a short weekend entertainment. Of course, there's just little truth to this one. But it's for my own weekend entertainment, for sure.

For now, what's official and clear is that Querubin's men went all back to their posts, saying they are loyal to the constitution (but not necessarily to the government). What becomes of Querubin? Some say he's a jerk, others say he's a good man but he is just one of those soldiers who just can't do anything to change the system. What becomes of Allega, Mike Defensor, Gloria, Mike Arroyo, JV Ejercito (who the government points as the mastermind), Erap, Niño Mulach, Cory Aquino, the CBCP, etc.? They go back to their respective normal routines, good or bad. What becomes of the people? Still clueless of what really happened the day ago.

All things are back to normal today, Monday, they say. Oh well. If another one of these crappy news break out again, at least we now know the pattern and what to expect: Angry soldiers march away from their barracks, their leader make a public statement (or grumblings, as what happened yesterday), the government disclaims the accusations, negotiations happen, both parties go out with another public statement saying it's over, clueless soldiers go back to their barracks, then wait for another opportunity to have a few days vacation with the media later. Maybe news programs should do forecasts on these events, aside from weather and business forecasts. We always have the signs, and we're visited like how typhoons do almost every season anyway. Imagine Mike Enriquez.... "Narito po si Pia Guanio sa kanyang Coup Chikaminute!"

It's a cycle really, and the people are learning to either be passive towards it, or be angrier against the system. Yup. If you see through it on any angle, no good results come out of it. It just makes people look dumber.

Note: If the government will order my arrest because they think this actually incites sedition, then they are even dumber than I thought.

True heroism remembered

Here I am again, shedding sad tears. But not because of a lost love or I'm missing friends from home, although it's typical for me specially if my Elmo would know about it. He knows that watching or remembering something about EDSA 1986 is a sobbing moment for me.

It's not because I was part of the event. I was just 6 then, and actual memories of me actually being there are somewhat blurred now already. What's clear to me was my father's face when he finally went home in the evening of February 27, 1986, with great news that it was finally over, that "at last, we're finally free!" My dad was part of the crewmen who almost got blasted in Radio Veritas Malolos in the eve of the revolution. My mom and I were really worried at that time. After the sabotage, they went straight to EDSA right after hearing news in Radyo Bandido (Remember their opening song "Mambo Magsaysay"? I used to sing that when I was a kid.) that people were really getting big by the number- which was a big sign that the people are restless. Sabi nga, "Tama na! Sobra na!..."

Come to think of it, it's because I was not part of that event, or I didn't feel "it" since I was just so young then. I missed the only event in this generation's history where people showed real and undeniable heroism. I missed that part of history where people became instruments of God's miracle, and with the whole world witnessing it. I am crying because the only history na naabutan ko would be that one which I wouldn't boast to my future children.

Everything's just screwed up in our country today. False beliefs becoming basis for justification, money and power over truth, dignity and honor, selfishness over sacrifice, oligarchy, corruption... these are what defines our politics and our times. And I'm ashamed of it.

I left the country many months ago still with hopes that everything would still turn out fine. The economy was somewhat showing good signs of progress amidst the painful truth that the foundations are still established by dirty, sometimes seemingly unlawful means, deceiving people that all means are for the better, whereas the better only reaches the few, particularly just the rich few. In the long run hopefully, I once convinced myself, good results would be felt by the poor.

But the poor are already restless. And this is the kind of restlessness where there are no feeling of hope left, not unlike in EDSA 1986 that, due to a clear goal to terminate dictatorship in the country, people still had something to look forward to. There was Cardinal Sin, Mrs. Cory Aquino, the spirit of Ninoy backing them up. Today, the only thing that drives them to the streets are empty stomachs and ignored but seeping anger against the government that betrays them eversince EDSA 2001.

Gloria should have known that Filipinos get angrier when provoked. Declaring the state of emergency, barricading the Malacañang grounds and boasting that her galamays are still loyal to her wherever TV channel you switch to just tells people that she's been up to something, she's getting paranoid, and she's doing everything to keep herself on her seat. By prohibiting the freedom of speech and expression on the streets right during the 20th celebration of the EDSA 1986 revolution just proves that we in EDSA 2001 made a big mistake in letting her declare herself as president. (I still vividly recall that we in the frontlines of the crowd booed Gloria, specially his pig husband Mike who then was smiling like a sponsor who just won the lotto, on the last day, when she took oath as president of the Philippines. Of course, that wasn't heard on TV. We were cheering for Davide for a transitional government first, aside from jailing Erap... but that's another story.) Anyway, looking at her face while declaring the state of emergency on TV, I couldn't help it but to see the same face when she said "I'M... SORRY." Although she seems to be in a limbo thinking that people might have forgotten about it, maybe she should consider quitting TV appearances and just shift to radio. (Of course, she should not start her statements with "hello,..." there.)

CNN covered a hint of this event during it's afternoon news program. This gave somewhat a perspective of Philippine history from 1986 till now from people outside the country. A Hongkong political analyst says nothing much has changed since the 1986 revolution, which contradicts the word "revolution" itself because it simply means a drastic change in the system. In summary, the report said people are still poor, dreams are still dreams and bad elements of the society (oligarchy, corruption, dirty politics, poverty, etc) that should have been eradicated are still there. Of course, people would say "heh... what do they know about our country?" But why does it feel that there's a big, although not whole, truth to it?

I turned to another Pinoy channel after that, which was then featuring a historical (and touching) review of the 1986 EDSA revolution. Upon seeing those pictures of people, rich or poor, religious and politicians, young and old with hopefull eyes and strong sense of patriotism in them, tears just rolled out from my eyes again. Where's this undaunted, unblemished love of country now? In the midst of daily struggle, it seems that the people have already almost forgotten what it truly means. But it's a good thing that there are still a very few who has this fire within their hearts. I pray for their safety and for their fire to keep burning till the day comes when everyone, poor and selfish, get what we deserve.

Mabuhay and EDSA 1986! Mabuhay ang EDSA DOS!

Bad Luck and Mendicancy

Feb. 4 of this year turns out to be really sad. Around 80+ people died outside Ultra while waiting for their chance to win more than a million in a famous gameshow. This IS tragedy to the heighest degree in the world of Philippine showbiz. And you see sad faces and tears on TV after this.

Accidents happen, and no one is to blame. But there are many ways to prevent accidents from happening. And those who ignored a possibility of accidents to happen in the most likely place and time deserve something.

"If you predict that there's going to be a huge crowd, you should be ready with ambulances and communications," Gordon said, blaming poor organization of the event as the cause of the Wowowee frenzy. He is right. The local government of that city (Pasig, I believe) where Ultra is should have sent more police, ambulances and first aid people to the scene where people are starting to grow in number.

But there is something deeper to all of these.

Most people who came to see Wowowee had great hopes and dreams to win a prize that would alleviate their lives to a better status. This, even if the chance is up to a million to one. This how poor most of our contrymen are today. They will kill (by shouting "bomba" in a very crowded place), or be killed, for luck. They think luck IS the only hope for a better life to the Filipino, and for years, they have learned to embrace this roundabout principle. To almost 20,000 people who went there, and met this horrible tragedy resulting to their death, it seems that it is. It's not only culture. It has become a way of life.

Although ABS-CBN claims that all they desire is to give hope and entertainment to the "kapamilya", gameshows such as Wowowee, Eat Bulaga's Laban o Bawi, among many others, infuses mendicancy in the way of life of the poor. Instead of teaching to strive for success and focusing attention to worth-while and productive tasks, the Filipino sticks to the culture of betting and relying on luck.

(Ah, anyway, no matter how hard you try, there will still be evil factors who remain happy stealing your money from your wallets legally by imposing laws such as the extended VAT... but obviously, that's another story.)

See how these people line up three days before the show, just to have a better chance of winning the jackpot. At the time of the tragedy, they were tired, hungry, did not have enough sleep, but fed more with a burning desire to win. Some of them must have already given up working their frail bodies for minimum daily salaries. In their minds- it's better to be here for a bleak luck, striving for rewards that they deserve is just not possible in this country.

Three days will be worth the wait for them in the streets beside the Broadway Centrum or ABSCBN studios than three-days worth of a real job, if not finding a real means to earn a living.

It is but natural to hear throwing of blames from all sides after the mourning subsides in the next days. But I believe the blame goes to the system who continuously teaches the Masses that there is no hope for a better life in this country but to go out and forget about the country itself, or to bet your life on a televised commercialized gameshow.

The Filipino poor is hurting everyday, and it is but immensely unfortunate for them to die while waiting for what they belive would give them the last chance... no, the only means to a better life, even if it's false hope. Even if it's a one-in-a-million chance.

It's a wake up call for a complete change. Time to change this crooked way of thinking and false belief. Isn't it time for media to use all resources to teach the people the truth about what IS in this country? Isn't it time for big media companies to realize what power they have over the masses? If they TRULY feel for the poor, they would lead the people to what really provides a better life- to know the truth, to defy what is wrong, and to strive for success through productive means.

So ABSCBN spent all day for public service. Please. If they are to spend the whole Saturday (Feb. 4) for public service, why not devote everything for public service from now on? Or is it just public service just ain't enough for ratings?

To the families who are greatly affected by this commercialized craze turned tragic frenzy, my sincere prayers for justice and peace.