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.