Wednesday, July 18, 2007

FAQs on the Human Security Act

A Primer, in the form of Frequently Asked Questions (FAQs), written by FLAG National Chair Jose Manuel I. Diokno, that was published in the Philippine Daily Inquirer (here).

Tuesday, December 12, 2006

charter change statement

STATEMENT
On Changing the Constitution


Government has run amuck in its desire to change the Constitution. Recent events clearly demonstrate that Gloria Macapagal Arroyo and her allies in Congress will employ any means, mostly foul, to achieve their objective. They must be stopped, and stopped now, or they will destroy the law itself and tear our country apart.

Gloria Macapagal Arroyo’s announcement yesterday shelving the constituent assembly does not mean she has abandoned her plans of changing the Constitution. Words are easy and cheap. Until the mechanisms for charter change have actually been dismantled—such as House Resolution No. 197—moves to change the Constitution by constituent assembly can be pursued at any time.

The FREE LEGAL ASSISTANCE GROUP (FLAG) calls upon the Filipino people to unite in forceful opposition against charter change, and demand that all current mechanisms put in place for changing the Constitution be immediately dismantled.

Quezon City, Philippines, 10 December 2006.


JOSE MANUEL I. DIOKNO
Chair

Monday, March 06, 2006

Proclamation No. 1021

We are uploading the Statement of Mrs. Arroyo as well as Proclamation 1021. We note that the text of Proclamation 1021 does not rescind Proclamation 1017 nor does it lift G.O. Nos. 5 and 6.

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Pahayag ng Pangulong Gloria Macapagal-Arroyo:
Pagbawi sa Proklamasyon 1017

FRIDAY, MARCH 3, 2006 |

CONSTITUTION AND LAW


Inihalal ninyo ako upang ayusin ang ekonomiya, mamuhunan sa ating mamamayan, at tanggalin ang nakadudurog na bigat ng kahirapan. Nagtatagumpay ang plano ko; sumusulong na ang ekonomiya. Patibay nito ang malakas na piso, lumalagong investment mula sa ibayong dagat, at mas malaking koleksiyon ng buwis na siyang popondo sa mga serbisyo publiko gaya ng edukasyon, pagamot at imprastraktura.

Subalit sa gitna ng pagsigla ng ekonomiya, may mga elemento sa ating lipunan na sukat naglunsad ng pakanang pabagsakin ang ating pamahalaan.

Isang linggo na ang nakararaan, nagsanib ang mga malisyosong destabilizer at mga sundalo at pulis na ligaw upang samantalahin ang maramdaming pangyayari sa ikadalawampung pagdiriwang ng EDSA. Wala silang ibang hangarin kundi ang sabotahe ng Saligang Batas at pagwasak ng legal na gobyerno ng Pilipinas. Ayon sa mga pangyayari, bumuo ako ng paghusga na may clear and present danger sa Republika dahil sa pagsasama ng mga puwersang ito. Bilang Commander-in-Chief ng Sandatahang Lakas at ayon sa kapangyarihang kaloob sa akin ng Konstitusyon, kumilos ako upang ipagtanggol ang katiwasayan ng mamamayan at sambayanan.

Napatibayan ang aking pagkabahala: maraming subersibo at ilang mga kawal at pulis ang naaresto natin. Bahala ang ating sistema ng hustisya sa kanilang makatarungang paglilitis. At gaya ng nakita natin noong Linggo ng gabi, nagpatuloy ang pakikibaka sa mga araw na sumunod. Kaya naman hindi ko binawi ang State of Emergency hanggang matiyak kong ligtas at maayos ang bayan.

Hindi ito hakbang basta ko ginawa; napakalaki ang nakataya upang kumilos nang kapos. Naniniwala ako na napalakas at nasanggahan ng aking ginawa ang ating mga karapatan at ang kalayaan ng media sa banta ng diktadurang leftist-rightist, at aking ipinagtanggol ang pagsulong ng ekonomiya na pinagsikapan nating matamo.

Ngayon, matapos ang isang linggo, ikinagagalak kong sabihin na nawasak ang pagsasabwatan, at panahon na upang bumalik sa tunay na gawain ng pamahalaan. Matibay ang aking tiwala na nanumbalik ang kaayusan. Samakatwid, ayon sa kapangayarihang kaloob sa akin ng Saligang Batas, ipinapahayag ko na mula sa sandaling ito hindi na umiiral ang State of Emergency.

Ibig kong pasalamatan ang ating mga tauhang militar at pulis na hindi nagpadala sa hatak ng politika at nanatiling tapat sa kanilang kalooban at sa bayan na sumpa nilang ipagtanggol. Napakarami nilang pasanin alang-alang sa atin. Inatasan ko si Defense Secretary Cruz na mamuno sa malawakang balik-tanaw upang alamin ang pananaw ng ating mga kawal sa larangan, tugunin ang kanilang mga hinaing at pangangailangan, at siguruhing magpapatuloy ang reporma sa Sandatahang Lakas tungo sa modernisasyon at katarungan. Ganoon din sa kapulisan.

Nagpapasalamat din ako sa ating mga pinunong lokal at pambansa na nanindigan sa panig ng demokrasya. At hindi ko mapupuri nang sapat ang dunong ng ating mga kababayan sa pag-unawa na nasa kasipagan ang magandang kinabukasan, wala sa pag-aalsa sa lansangan.

Napakahalaga ngayon na tumigil na ang ating mga kalaban sa politika at ang mga oportunista sa perhuwisyo sa ekonomiya at kahihiyan sa Pilipinas dulot ng mga walang kuwentang palabas.

Mas malakas ang bayan sa mabilis at buong loob nating pagtugon sa hamong ito. Hindi ko kailanman kukunsintihin ang ganitong uring adventurism. At kahit ilang ulit, kikilos ako nang may paninindigan at determinasyon tuwing mamimilit ang ating mga kaaway ng alanganin sa bansa at pahamak sa ekonomiya.

Samantala, pinagpala tayong nakatira sa masiglang demokrasya na malakas, matatag, at sumusulong.

Maraming salamat po.

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MALACA√ĎANG

Manila

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 1021

DECLARING THAT THE STATE OF NATIONAL EMERGENCY HAS CEASED TO EXIST

WHEREAS, pursuant to Section 18, Article Vll and Section 17, Article Xll of the Constitution, Proclamation No. 1017 dated February 24, 2006 was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No. 5 and No. 6 dated February 24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) were directed to maintain law and order throughout the Philippines, prevent and suppress all forms of lawless violence as well as any act of rebellion and to undertake such actions as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL –ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.

City of Manila, MAR 03 2006

(Sgd) GLORIA MACAPAGAL-ARROYO

By the President:

(Sgd) EDUARDO R. ERMITA
Executive Secretary

Monday, February 27, 2006

YOUR HUMAN RIGHTS

(FLAG is uploading its most recently updated Primer entitled "Your Human Rights." This was first produced and disseminated during Martial Law. It was updated during the declaration by Mrs. Arroyo of a State of Rebellion in 2001; considerng Proclamation No. 1017, it is appropriate that this Primer be as widely disseminated as possible.)

UNDER THE CONSTITUTION, AND IN TIMES OF EMERGENCY THE PRESIDENT MAY RESORT TO ANY OF THESE EMERGENCY POWERS –


The President, whenever it becomes necessary, may call out the armed forces to prevent or suppress lawless violence, invasion, or rebellion.

* Congress need not concur for the call out to be effective. It is important to remember that while the implementation of the President's decision to call out the armed forces is subject to judicial review, the courts will rarely, if ever, invalidate the factual findings of the President's decision.

* Justice Kapunan in his dissent in Lacson v Perez said that a declaration of a "state of rebellion" only gives notice to the nation that it exists and that the armed forces may be called to prevent or suppress it. Such declaration does not justify any deviation from the constitutional proscription against unreasonable searches and seizures. FLAG believes the calling out of the armed forces and the declaration of a "state of rebellion" do not—and can never—authorize the suspension of any of your constitutional rights.

In case of invasion or rebellion, and only when the public safety requires it, the President may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law, but:

* The President must submit a report to Congress within 48 hours from such suspension or declaration;

* Congress, voting as one body, may revoke the suspension or shorten the period;

* The President must respect the decision of Congress.

(a) The existence of an actual rebellion or invasion is not
in itself a ground to suspend the privilege of the writ of
habeas corpus or to declare martial law unless the public
safety requires it.

(b) Congress may also extend the suspension or
declaration upon the initiative of the President if the
invasion or rebellion persists and the public safety
requires it.

(c) If Congress is not in session when the suspension or
declaration is made, it shall convene in 24 hours without
need for call.

(d) The suspension of the privilege of the writ of habeas
corpus or martial law shall last for a period not
exceeding 60 days unless extended by Congress upon
the initiative of the President. Congress cannot extend
its duration if the President does not make the
initiative.

(e) The suspension applies only to persons charged in
court (not just in the fiscal's or prosecutor's office) for
rebellion or offenses inherent in or directly connected
with invasion. If the person arrested or detained is not
charged in court within 3 days of his/her arrest, s/he
must be immediately released.

(f) The declaration of martial law does not carry with it
the automatic suspension of the privilege of the writ of
habeas corpus, does not suspend the operation of the
Constitution, supplant civilian courts, authorize the
military to exercise jurisdiction over civilians, or give
the President the power to legislate.

(g) The Supreme Court may review the sufficiency of
the factual basis of the suspension or declaration upon
petition of any citizen, who need not be a taxpayer. The
Supreme Court may entertain the petition even during
the first 60 days of the suspension or declaration, and
must decide the case within 30 days from filing.

* In times of national emergency, the President may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.

(a) A national emergency refers to a situation where there
is a threat of external aggression or calamities or natural
disasters, including military or economic dislocations.
Labor strikes do not constitute a national emergency
unless the strikes are of such proportion that they would
paralyze government service.

(b) The take-over may only be done during the
emergency and under reasonable terms. Only the
operations of any privately owned business utility or
business affected with public interest may be taken over.
The transfer of ownership of such business is not
required. The owner of any business taken over shall be
properly compensated, when prejudiced by the take-
over. The owner cannot prevent the take-over during
the period of emergency but may contest it later.

(c) The President may not resort to sequestration by
virtue of the state of emergency.

* The President may, in the interest of national welfare or defense, establish and operate vital industries. Upon payment of just compensation,the government may also transfer to public ownership utilities and other enterprises to be operated by it.

The President may exercise powers authorized or delegated by Congress.

(a) The powers that may be authorized by Congress do
not include the power to legislate. The areas over which
Congress may delegate to the President certain authority
must be limited to meet the exigency of the emergency
and nothing more.

(b) The powers that may be authorized by Congress must
cease upon withdrawal by, or next adjournment of,
Congress. Hence, the exercise of such powers is not
coextensive with the existence of the emergency.

IN ANY SITUATION, YOU DO NOT LOSE YOUR BASIC RIGHTS, SUCH AS—


The right to life;

The right not to be tortured, nor subjected to
cruel, Inhuman or degrading treatment or
punishment;

The right not to be subjected to forced labor;

The right not to be imprisoned for non-payment
of debt;

The right not to be punished for an act which
was not yet a crime at the time of its commission;

The right to be recognized and treated as a
person; and

The right to freedom of thought, conscience and
religion.

These rights are absolute. Under no condition can their
fulfillment or enjoyment be suspended. This is true even
when martial, law or any other state of public emergency
has been declared. These are non-derogable rights under
the International Covenant on Civil and Political Rights
to which the Philippine Government is a party.

There are other rights that are considered inalienable
and inviolable, such as—

The right not to have your house searched
without a search warrant issued by a Judge, and
not to have anything seized which is not
specified in the search warrant. However, if you
are legally arrested, your person and immediate
surroundings may be searched for dangerous
weapons, and any evidence found on your person
or Immediate vicinity (only on your person and
immediate vicinity) which may have been used
to commit the crime for which you are being
arrested may be seized.

The right to liberty and security of person. You
can be deprived of liberty only on grounds and
procedures established by the Constitution and
existing law.

The right not to be arrested except on evidence
that a crime has been committed and that you
probably committed it. You may be arrested only
on the strength of a warrant of arrest issued by
a Judge, except:

* When you have committed, are actually
committing, or are attempting to commit an
offense in the presence of the arresting officer;

* When an offense has just been committed and
the arresting officer has probable cause to
believe, based on personal knowledge of facts
and circumstances, that you committed the
offense;

* When you have escaped from prison or detention
or while being transferred from one confinement
to another.

The legality of your arrest must be determined in an inquest proceeding conducted by a civilian prosecutor. The prosecutor, in a summary proceeding, can:

(a) Order your release (this may or may not be subject to
a full-blown preliminary investigation);

(b) Affirm the legality of your arrest, and prepare the
corresponding complaint or information with the trial
court.

(c) Often the inquest prosecutor will ask the person
arrested if s/he desires a preliminary investigation; in
which case s/he will be asked to sign a waiver. Do not
sign the waiver without being duly informed of the
nature and consequences of signing it. Signing the
waiver may—and often does—mean that you are going
to remain in detention, pending a preliminary
investigation. It may also mean that you are waiving
your right to file cases against those who arrested you.

While under arrest or detention, if you are questioned or investigated by the police or military, you have the following rights:

* To be informed of your right to remain silent and
other constitutional rights;

* To have competent and independent counsel
preferably of your own choice; and

* To be provided with counsel if you cannot afford
one.

In all criminal prosecutions, you have the following rights:

* Not to be compelled to testify against yourself;

* To remain silent and to counsel;

* To be informed of the nature and cause of the
accusation against you;

* To have a speedy, public and impartial trial;

* To appeal any conviction;

* To be presumed innocent until the contrary is
proven;

* To be present and heard by yourself and counsel;

* To avail of court processes to secure the
compulsory attendance of witnesses and the
presentation of evidence in your defense; and

* To meet the witnesses face-to-face and to cross-
examine them.

* The right to a preliminary investigation.

* The right against double jeopardy.

* Before conviction, the right to bail except for
capital offenses when evidence of guilt is strong.

* The right to be treated with humanity and with
respect for your personal dignity.

* The right to liberty of abode and the right to
travel.

What to do

IF YOUR HOUSE OR OFFICE IS SEARCHED

* Your house or office cannot be searched without
a warrant duly issued by a Judge. When a valid
search warrant is issued, the searching party can
only seize those things that are particularly
described in the search warrant, unless you
consent, or the articles are contraband in plain
view. However, if you are arrested, your person
and immediate surroundings may be searched
for dangerous weapons and evidence that
you committed the crime for which you are
being arrested; any evidence which may be found
on your person or immediate vicinity can be
seized.

* A search warrant is valid if:

- It is signed by the Judge;

- It specifies one offense only;

- It describes with particularity the exact location
and/or address of the place to be searched
and lists down exactly what things are to be
seized;

- It is used within ten days from its issuance.


* A search warrant must be served during the daytime
unless the affidavit supporting it asserts that the
property is on the person or in the place ordered to
be searched, in which case the warrant must
specifically direct that it can be served at any time
of the day or night.

* If the warrant is invalid, the search and seizure is
unlawful, Any evidence obtained as a result of an
unlawful search and seizure cannot be used as
evidence in any proceeding. You may peacefully
refuse, without liability, an unlawful search and
seizure. You may also file criminal, civil or
disciplinary action cases against the officer serving
an unlawful warrant.

* Where there is no search warrant, do not voluntarily
submit yourself to a search. Object immediately. Do
not agree to be searched but do not physically resist.
A warrantless search without your express, prior
and voluntary consent is illegal.

During a search:

* Before allowing your home or office to be searched,
ask for and read the search warrant. Examine it
carefully to see if it:

(a) states your address;

(b) describes the items to be seized with
particularity;

(c) is signed by a civilian judge;

(d) specifies only one offense; and

(e) is being used within 10 days from its issuance.

* Contact your lawyer by the most expedient means
(telephone, text message) and inform him/her that
your home or office is about to be searched.

The search party has the right to break any outer or inner
door or window to effect the search if the search party
is refused admittance to the place of the search after
giving notice of the purpose and authority for the
search.

* If it is a valid warrant, only then should you allow
the search to be conducted. Upon letting the search
party enter your premises, ask for their names, rank,
and the office or unit to which they belong. Get the
name and rank of the commanding officer.

* During the search, accompany the group conducting
the search at all times. This lessens the possibility of
their planting documents, weapons or other
materials in your home or office.

Remember: The search party is allowed to conduct the
search only in the presence of the lawful occupant or
any member of his/her family, If no occupant or family
member is present, the search must be conducted in the
presence of two witnesses of sufficient age and discretion
who reside in the locality. This means that every room,
compartment, section or portion of the place cannot be
searched unless the above witnesses are present.

* If anything is taken from your home or office, the
officer seizing the property must give you a detailed
receipt. Before signing the receipt—

(a) Go over it carefully to ensure its accuracy in
designation, description and quantity;

(b) If there are blank spaces that might be used by
unscrupulous police officers to "add" items that were
not actually found during the search, ask the officer to
place a line across the blank space.

(c) Insist that you be given a copy of the receipt; if they
agree, make sure that the copy accurately reflects the
original.

(d) If there is anything in the receipt that tends or appears
to be incriminating, tell the searching party you are
invoking your right to a lawyer and to remain silent and
that you refuse to sign anything without talking to your
lawyer first.

* You may be asked in sign an affidavit of orderly
search. If the search was not conducted in an orderly
manner, do not sign the affidavit. Instead, register
your objection. In any case, read it very carefully
and tell the police officers you want to consult your
lawyer before you sign anything.

IF YOU ARE INTERCEPTED AT A STOP-AND-FRISK OPERATION

The "stop" and the "frisk" are actually two separate
acts.


- The "stop" is employed by the police to
investigate a suspicious individual. It involves
briefly detaining you for the limited purpose of
determining if any further police action should
be taken against you.

- The "frisk" is intended for the safety of the police
officer. It involves an actual physical invasion of
your body for the limited purpose of determining
if you are armed with a deadly or dangerous
weapon.

- If the police officer has reasonable grounds to
"stop" you for investigation, s/he does not
automatically have the right to "frisk" you. A
"frisk" may only be done if the police officer has
good reason to believe that you are armed with a
deadly or dangerous weapon.

- The "stop" may provide the police officer with a
valid ground to arrest you, if you have a standing
warrant of arrest or if there are valid grounds to
effect a warrantless arrest. But if the "stop" does
not provide the police officer with the legal basis
to arrest you, there is no reason to believe that
you are armed and the police officer must let you
go.

* In upholding stop-and-frisk operations, the
Philippine Supreme Court relied to a large extent
on the ruling of the United States Supreme Court in~.
Terry v. Ohio. In that case, the U. S. Supreme Court
adopted the balancing of interests approach (e.g.,
"balancing the need to search against the invasion
which the search entails" ). The U.S. Supreme Court
also mandated a two-step process to determine the
validity of the stop-and-frisk operation: (1) was the
"stop" justified? and (2) was the "frisk" limited in
scope and intensity so as to achieve its limited
purpose? The Philippine Supreme Court, however,
did not apply the two-step process and a number of
decisions are difficult to reconcile. This has opened
the door to abuse by unscrupulous law enforcement
officers.

* In a stop and frisk situation, remember:

- The police officer may ask for your identity but
s/he cannot require you to present your
identification papers;

- The police officer may frisk you only if s/he has
reasonable suspicion that you are armed. The frisk
should only involve patting down the outer shell
of your clothing, but the police officer cannot
order you to take off your clothes to see if you
have body marks or tattoos; neither can the police
officer open your bag or ask to see your wallet;

- If, during the frisk, the police officer feels an object
that could be a concealed weapon, the officer may
take it out to examine it. If it is a deadly or
dangerous weapon, the officer may seize it;

- The police officer may seize any concealed
weapon (gun, knife) found on you and charge
you.

* If you believe that you are a target of police
harassment, do not act belligerently. Instead, file
criminal, civil or disciplinary action cases against
the erring police officer.

IF YOU ARE STOPPED AT A CHECKPOINT

Remember:

* You need not step out of the vehicle nor open its
trunk. The inspection must be limited to a visual
search. Neither the inside of the vehicle nor the
occupants are subject to a search. Only objects in
plain view of the officers conducting the search are
subject to seizure.

An extensive search is allowed only if the officers
conducting the search have probable cause to believe
before the search that either the motorist is an offender
or that they will find evidence pertaining to the
commission of a crime in the vehicle to be searched.

* When ordered to step out of the vehicle or open
its trunk, do not readily accede to the order. Ask
the officer or officers conducting the search for
their names, their official positions, the office or
unit to which they belong and reason for the order.
If you believe that the order is unjustified, object
firmly but peacefully to the order and state that
you are not waiving any of your rights.
Nonetheless, even if you fail to object, any
evidence obtained as a result cannot be used
against you. Consent under intimidating or
coercive circumstances is not consent within the
purview of the Constitution.

The right against unreasonable searches and seizures
may be impliedly waived if you do not object to the
unreasonable search.

* If you are being arrested because of any
incriminating evidence found on your person or in
the vehicle, follow the advice in the succeeding
section.

* Checkpoints are allowed only under exceptional
circumstances (in red alert situations where the
survival of organized government is on the balance
or the lives and safety of the people are in grave
peril or when there is a need to arrest a criminal or
fugitive from justice). When the exceptional
circumstances no longer exist, checkpoints are no
longer allowed, and any checkpoints established are
illegal.

* The area where checkpoints are established must be
properly lighted. Clear and legible signs must be
exhibited to that searches are being conducted. .
Enforcement officers must at all times be in uniform
with their identification cards and nametags on. The
unit manning checkpoints must always be led by
an officer with the rank of lieutenant, If these
standards are not met, you may report all instances
of non-compliance to the police and military
authorities for proper action.

IF YOU BELIEVE THAT YOU WILL BE ARRESTED OR SALVAGED

Take the following precautions:

* Do not go out alone. The risk of disappearance and
being salvaged increases because no one witnesses
or is willing to testify to the arrest of the person who
disappeared/was salvaged.

* Avoid going to places where no one knows you.

* Do not stay at home or elsewhere alone.

* Tell your family or friends of the possibility of your
being arrested, and what to do in case you are
arrested. Tell them specifically whom to run to for
help, how to get in touch with them, and where to
search for you.

* Before going out, tell your family or friends where
you are going, whom you will see, why, how long
you expect to be out, and what to do if you fail to
return on time, or fail to reach your destination, or
keep your appointment. If you own a cell phone,
send a text message to yours friends or family
informing them that you have reached your
destination and are proceeding to your next
appointment.

* When you go out, always carry adequate
identification, and avoid carrying anything that
could be construed as incriminating.

* In case you are being arrested, see to it that people
know that you are being arrested and by whom. if
necessary, shout or make a scene to attract attention
to your arrest. If you own a cell phone, call or send
a text message to your family, friends and lawyer to
inform them that you are being arrested.

* Disappearances and salvaging can be prevented or
minimized if your family, friends or even bystanders
will accompany or follow you and your arresting
officers to learn where you are being taken and to
show concern over your safety. As soon as possible,
they should notify a lawyer or respected member
of the community (a priest, teacher, doctor or civic
leader) who, in turn, should try to visit you
immediately.

* During detention, your family and friends should
visit you as often as possible, and send things to
you (food, magazines, medicines, clothes, etc.) on
days they cannot or are not allowed to visit. Never
agree to be taken out of jail or the detention center
by anyone unless accompanied by your lawyer or a
member of your family.

* Even if you have reliable information that there is a
plan to arrest or salvage you, it is not advisable to
go into hiding. Instead, request your lawyer or other
responsible person to inquire if there is a warrant
for your arrest, and if there is, to arrange for you to
present yourself to the proper authorities under
adequate guarantees for your safety. Meanwhile,
prepare yourself by reviewing your rights and
deciding what you will do if you are arrested to
protect your safety and enforce your rights.

IF YOU ARE BEING ARRESTED

Remember:

* Stay calm. Being arrested is not the end of the world.
Some apprehension is unavoidable; but you can
reduce this by concentrating on each event as it
happens, and not letting your imagination run wild
about what will happen next.

* Ask a relative, friend or even a stranger (get the
name and address) to witness your arrest. If you own
a cellular phone, send a text message to your family,
friends and lawyer informing them that you are
being arrested. You may also call your family,
friends and lawyer so they may listen in on your
arrest.

* Ask the person or persons arresting you for their
names, their official positions, and the office or unit
they belong to.

* Ask for a copy of their authority to arrest you and
examine it carefully. Note particularly if you are
correctly named in the warrant of arrest, and the
offense for which you are being arrested.

* If there is any defect in the warrant, register your
objection to being arrested, but do not use force.

* If you are lawfully arrested, you may be searched
for dangerous weapons or anything which may be
used as proof that you committed the crime for
which you are being arrested.

* Inquire from your arresting officer where you will
be taken. Ask that you be accompanied by the
relative, friend or stranger who witnessed your
arrest. Assure the arresting officers that this is for
their protection as well as yours.

* Ask to be allowed to telephone your lawyer; if
denied, ask your relative, friend or other witness to
your arrest, to do so. Inform your lawyer of your
arrest, the identity of the arresting officers, the cause
of your arrest, and where you will be taken.

* Do not, at any time, offer any physical resistance to
the. arrest. State that you object to your arrest and
are not waiving any of your rights, but are going
peacefully in order to avoid violence.

* If the persons making the arrest are in civilian clothes,
or refuse to give their names or show any warrant of
arrest, refuse to go with them. Ask them to let you
call for a policeman to verify their authority. Do not
agree to being blindfolded. The law requires arresting
officers to be properly dressed, to behave properly
and to respect your rights and your dignity. If the
arresting officers violate these requirements, do not
cooperate, hut do not use violence either. Make them
carry you out, shout for help, create a scene so that
your neighbors and other passers-by may notice what
is happening. Remember all violations of your rights,
and complain about them at the first opportunity after
your arrest, when you are presented to a judge or
fiscal.

* If you are told that you are not being arrested but
merely invited for questioning, reply that you will
consult your lawyer first. Do so, then get your
lawyer to talk to the officers and arrange a date, time
and place for your questioning. If they do not allow
you to consult your lawyer, refuse to go along with
them. If they insist, their acts become an arrest, and
the preceding advice applies.

* The general rule is that you can only be arrested
upon proper warrant of arrest issued by a competent
Court. However, there are three exceptions to this
Rule—

- When you have committed, are actually
committing, or attempting to commit an offense
in the presence of the arresting officer;

- When an offense has just been committed and the
arresting officer has probable cause to believe
based on personal knowledge of facts and
circumstances that you committed the offense;

- When you have escaped from prison or detention
or while being transferred from one confinement
to another.

REPEAT: REMAIN CALM. Concentrate on what is happening now. Do not imagine what will happen next. Many of our fears are self-created. Above all, do not worry if you forget to do any of the things listed above. They are counsels of perfection, not always attainable. As long as you remain calm and collected, you will be able to protect your rights.


IF YOU HAVE ALREADY BEEN ARRESTED


These are your rights:

* To remain silent and to be assisted by a competent
and independent lawyer of your choice.

* Not to be subjected to torture, manhandling,
intimidation, deceit, promises of reward or leniency
of any means (drugs, hypnosis, etc.) that vitiate or
weaken your free will.

* To be brought for inquest as soon as possible, but
not later than:

- 12 hours after arrest for a light offense

- 18 hours after arrest for a less grave offense

- 36 hours after arrest for a grave offense.

The legality of your arrest must be determined in
an inquest proceeding conducted by a civilian
prosecutor. The prosecutor, in a summary
proceeding, can

(a) Order your release (this may or may not be subject to
a full-blown investigation);

(b) Affirm the legality of your arrest, and prepare the
corresponding complaint or information with the trial
court. Very often the inquest prosecutor will ask the
person arrested if s/he desires a preliminary
investigation; in which case s/he will be asked to sign a
waiver. Do not sign the waiver without being duly
informed of the nature and consequences of signing it.
Signing the waiver may—and often does—mean that
you are going to remain in detention, pending a
preliminary investigation. It may also mean that you are
waiving your right to file cases against those who
arrested you.

* If you are questioned or investigated by the police or
military, you have the following rights, among others:

- To remain silent;

- To have competent and independent counsel
preferably of your own choice;

- To be provided with counsel if you cannot afford
one; and

- To be informed of these rights, and to be told that
anything you say may be used against you in court.

* In all criminal prosecutions, you have the following
rights:

- Not to be compelled to testify against yourseif;

- To remain silent and to counsel;

- To be informed of the nature and causes of the
accusation against you;

- To have a speedy, public and impartial trial;

- To appeal any conviction;

- To be presumed innocent until the contrary is
proved;

- To be present and heard by yourself and
counsel;

- To avail of court processes to secure the
compulsory attendance of witnesses and the
presentation of evidence in your defense; and

- To meet the witnesses face-to-face and to cross-
examine them.

* When you are brought before the Judge, to make a
formal complaint if you have been denied counsel,
forced to confess, or manhandled, tortured or
intimidated.

* To be released on reasonable bail, unless you are
charged with a crime punishable by death and the
evidence of your guilt is strong.

Release on bail does not bar you from challenging the
validity of your arrest nor the legality of the warrant of
arrest, provided you raise these challenges before being
arraigned.

All arresting, detaining, inviting or investigating
officers and their companions must follow and
observe the following, procedures, guidelines and
duties, at the time of your arrest and again during
your custodial investigation. These guidelines,
procedures and duties were laid down by the
Supreme Court in People v. Mahinay (G.R. No.
122485,1 February 1999):

- You must be informed in a language known and
understood by you of the reason for your arrest,
and you must be shown the warrant of arrest. All
other warnings, information or communication
must be in a language known and understood by
you.

- You must be warned that you have the right to
remain silent and that any statement you make
may be used as evidence against you.

- You must be informed that you have the right to
be assisted at all times and have the presence of
an independent and competent lawyer of your
own choice.

- You must be informed that if you have no
lawyer or you cannot afford the services of a
lawyer, one will be provided for you; and that
a lawyer may also be engaged by any person
on your behalf, or may be appointed by the
court upon a petition by you or by one acting
on your behalf.

- Whether or not you have a lawyer, you must be
informed that no custodial investigation in any
form shall be conducted except in the presence
of your lawyer or unless you have validly waived
any of your rights.

- You must be informed that you have the right, at
any time, to communicate or confer by the most
expedient means (telephone, text message, radio,
letter, or messenger) with your lawyer, any
member of your immediate family, any medical
doctor, priest or minister you choose or one
chosen by your immediate family or lawyer; you
must also be informed that you have the right, at
any time, to be visited by and confer with duly
accredited national or international non-
governmental organizations.

- You must be informed that you have the right to
waive any of your rights provided you do so
voluntarily, knowingly, intelligently and you
understand the consequences of your waiver.

- If you waive your right to a lawyer, you must be
informed you must waive your right in writing
and in the presence of your lawyer, otherwise you
must be warned that your waiver is void even if
you insist on your waiver and you choose to
speak.

- You must be informed that you may indicate in
any manner at any time or stage of the process
that you do not wish to be questioned and that
once you make such indication, you may not be
interrogated, if the interrogation has not yet
begun, or the interrogation must cease if it has
already begun.

- You must be informed that your initial waiver
of your right to remain silent, your right to
counsel, or any of your rights, does not bar you
from invoking yours rights at any time during
the process, regardless of whether you have
answered some questions or volunteered some
statements.

- You must also be informed that any statement or
evidence obtained in violation of any of the above
procedures or guidelines, whether inculpatory or
exculpatory, in whole or in part, is inadmissible
in evidence.

(a) A common practice of investigating officers is to
present a person arrested with a confession already
drawn up and ready for signature, then to intimidate
the suspect into signing the statement without reading
it. And since uncounselled confessions have been
disallowed under the Constitution, the investigating
officers now have lawyers who are ready to assist you
during the confession, to make everything legal and
valid. Remain firm, but respectful. Insist that you would
like to get your own lawyer, and ask for the opportunity
to get in touch with your lawyer. Since they now know
that you know your rights, the chances that you will be
manhandled are reduced.

(b) lf you have not been informed of your rights to remain
silent and to have competent and independent counsel
of your choice, the arresting officer or employee or the
investigating officer who fails to inform you of your
rights is liable to suffer a fine or a penalty of
imprisonment, or both. If the arresting officer or
employee or investigating officer has been previously
convicted for a similar offense, s/he shall suffer the
penalty of perpetual absolute disqualification.

(c) If the arresting officer or employee or the
investigating officer or anyone acting upon their orders
or in their place, fails to provide you with competent
and independent counsel if you cannot afford the
services of your oy.rn counsel, s/he is liable to suffer a
fine or a penalty of imprisonment, or both. If the
arresting officer or employee or investigating officer has
been previously convicted for a similar offense, s/he
shall suffer the penalty of perpetual absolute
disqualification.

(d) Whoever obstructs, prevents or prohibits your
lawyer, any member of your family, any medical doctor
or religious minister, from visiting and conferring
privately with you, or from examining and treating you,
or from ministering to your spiritual needs, at any hour
of the day, or, in urgent cases, of the night, is liable to
suffer the penalty of imprisonment and a fine.

IF YOU ALREADY ARE UNDER DETENTION

Your rights are:

* To be treated as a human being.

* To due process, which comprises the rights:

- To be informed of the written regulations
governing the detention center;

- Not to be punished for any act except in
accordance with those regulations;

- To be subjected to only such punishment for
breaches of discipline as are the least restrictive
means to maintain order and security in the
detention center;

- Not to be subjected to corporal punishment,
confinement in a dark cell or total isolation
(bartolina).

* To receive visits from your family, friends and
lawyers.

* To practice your religion.

* To adequate food and, if you desire, to procure food
from outside, through the administration of the
detention center or through family and friends.

* To wear your own clothing unless you have none,
in which case the detention administration shall
supply it, but such clothing must be different from
that supplied to convicts.

* To healthful accommodations, with sufficient light
and ventilation, and adequate sanitary and bathing
facilities.

* To a separate bed with sufficient bedding.

* To at least one hour's daily outdoor exercise.

* To competent medical and dental service, and to be
treated by your own doctor or dentist if there is
reasonable need for it and you or your family or
friends will pay for it.

* To be furnished with or to procure reading and
writing materials.

* To be kept separate from convicts serving sentence.

* To a speedy, impartial and public trial.

SHOW US EDSA

(This was read by Mrs. Carmen I. Diokno, the widow of the late former Senator Jose W. Diokno on the occasion of his birthday, February 26, at La Salle Greenhills Chapel. Senator Diokno, Ka Pepe to many, was the founder of FLAG and the first Chairperson of the Presidential Commission on Human Rights created after the fall of Marcos.)

On July 2 last year, the Jose W. Diokno Foundation called on Mrs. Gloria Macapagal Arroyo to step down from office. Today, on the 84th birth anniversary of Pepe, we no longer address Mrs. Arroyo, who heeds no one but herself and her coterie of advisers, and needs Proclamation 1017 to prop up her flagging government. We prefer to address our people, whom Pepe so loved and with whom he struggled for a better life.

On the matter of leadership, we say: Out of 80 million Filipinos, Mrs. Arroyo is not the best we can produce. She does not even come close to the best. But Mrs. Arroyo’s display of arrogance is not what disturbs us, though I must admit it is irksome. It is, rather, the implicit assertion that we deserve her kind of leadership—for our people do not—and that there is no alternative to her, when there are. Remember that martial law lasted as long as it did in part because some accepted the notion of a so-called ‘lesser evil’.

We who have asked Mrs. Arroyo to resign from office are often criticized for being disunited. So let us examine the sources of our disunity. Clearly there is an element of distrust, that some in the political opposition are out for their own ends just as some among organized groups are perceived to have their own agenda. Suppose we accept this to be a fact of our present political life. Is it nonetheless possible for us to come together on the basis of certain principles? I believe it is.

For example, we all want our elections cleansed of corrupt election officials, cheating and other corrupt practices. We desire an electoral process and system that will bring out new, good leaders who have a fair chance of winning.

We do not want the constitution changed at any and all cost, in the manner that Mrs. Arroyo and Speaker de Venecia know best. They make no effort at subtlety in their attempt to subvert elections and remain in power in the name of constitutional change.

Most of all, we reject the social inequity that our political system feeds on. Using the poverty of the people against the people is the worst, most painful crime of all.

So what is to be done? First and most immediate, we must not surrender our civil liberties. Sometimes I think that martial law was effective because it didn’t hurt enough people; the dictatorship selected its targets skillfully and then isolated these targets from the public view. A false sense of comfort thus resulted. Let us not allow ourselves to be fooled again. One act of suppression, if unopposed, makes possible other acts of suppression.

Second, let us seriously work out the bases of our unity and agree that we cannot have all that we want now. This is a difficult task—I know how hard Pepe worked to bring the opposition together during martial law. But try and try again we must.

In all this I ask that we think of our youth and consciously cultivate young leaders. We widows and veterans of martial law have reached the pre-departure area; our knees do not allow us to line the streets and march in protest. This is not just a world we are about to leave, but one we will bequeath to our children, grandchildren and, in my case, great grandchildren. Listen to 17-year old Jose Miguel Bermudez, a freshman studying in Las Pinas, who wrote in the Inquirer’s ‘Young Blood’ column. “Everyday of my life,” he says, “my teachers and my parents admonish me to shape up. I think it is now my generation’s turn to tell my parents and those who run this country that it is time for them to shape up. They are being selfish and myopic when they complain about the inconvenience and disruption caused by people protesting against lying, cheating and stealing. They would rather go about their regular business even if that means leaving many fundamental and moral issues unresolved.” Talking about how these issues will haunt the next generation, Jose Miguel asks: “Guess who will be left to deal with this ghost when it returns? Guess who will be left to deal with the ugly litter of an irresponsible and apathetic generation that would trade their children’s future for short-term convenience?” (7 February 2006)

My own grandson, Jose Lorenzo—we call him Pepe for short, who was born a little over a year after Edsa, wrote in yesterday’s Inquirer: “We relegate Edsa to these four days, we remember Edsa only when we feel the need to and we kill Edsa…. It makes me angry that the revolution to most of us has become a set of dates and actions that little children memorize for Sibika. And I’m angry that most of what we’ve read so far is about the events that transpired, and the generals and politicians ‘who made Edsa happen’. Edsa is not about them. Edsa is also more than the people who were there. It’s even more than the leaders it ousted.” My other Pepe ends with a request: “I’d like to ask a favor from you who were lucky enough to have felt the joy of revolution. Don’t tell us about it. Show us Edsa. A lot of us don’t even know what it looks like.”

So we who know, must show Edsa. But in this process of showing, I advise our youth: do not be passive onlookers. Your job, like that of my generation that is about to pass, is to constantly improve upon what is shown and to never give up. This was Pepe’s dream of a nation truly for our children, and it remains ours.


Carmen I. Diokno
La Salle Greenhills
26 February 2006

Friday, February 24, 2006

General Order No. 5 (Implementing Proc No. 1017)

MALACANAN PALACE
MANILA

GENERAL ORDER NO. 5

DIRECTING THE ARMED FORCES OF THE PHILIPPINES IN THE FACE OF NATIONAL EMERGENCY, TO MAINTAIN PUBLIC PEACE, ORDER AND SAFETY AND TO PREVENT AND SUPPRESS LAWLESS VIOLENCE

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarian of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military=y adventurists—the historical enemies of the democratic Philippine State—and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front to bring down the duly-constituted Government, elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

WHEREAS, 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 government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of the both extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and integrity of the Philippine State and of the Filipino people’

WHEREAS, Proclamation 1017 dated February 24, 2006 has been issued declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.

City of Manila, February 24, 2006.


GLORIA MACAPAGAL ARROYO


By the President:

EDUARDO R. ERMITA
Executive Secretary

FLAG requests Chief Justice to keep courts open

24 February 2006

Honorable Artemio V. Panganiban
The Chief Justice
Supreme Court of the Philippines
Manila


Dear Mr. Chief Justice,

We write on behalf of the FREE LEGAL ASSISTANCE GROUP [FLAG] to respectfully request Your Honor to issue a directive to all Executive Judges nationwide to keep the Courts open and functioning this weekend, for purposes of receiving and processing applications for bail.

Our request is based upon this afternoon’s arrest of at least thirty-five (35) persons, many of whom we represent, and the announcement by Palace officials of impending arrests, pursuant to Proclamation 1017. We are concerned that since Courts normally don’t function during weekends, our clients and others similarly situated may find themselves imprisoned for periods longer than those prescribed by law.

Respectfully,



JOSE MANUEL I. DIOKNO
Chair

Proclamation No. 1017

MALACANAN PALACE
MANILA


PROCLAMATION NO. 1017
PROCLAMATION DECLARING A STATE OF NATIONAL EMERGENCY


WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA, and the extreme Right, represented by military adventurists—the historical enemies of the democratic Philippine State—who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

WHEREAS, 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 government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Rights the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested in me by Section 18, Article 7 of the Philippine Constitution which states that: “The President … whenever it becomes necessary … may call out (the) armed forces to prevent or suppress … rebellion …,” 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 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 12 of the Constitution do hereby declare a State of National Emergency.

IN WITNESS HEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.

Done in the City of Manila, this 24th of February in the year of Our Lord, two thousand and six.


GLORIA MACAPAGAL ARROYO

STATEMENT ON NATIONAL EMERGENCY

The FREE LEGAL ASSISTANCE GROUP [FLAG] strongly condemns Proclamation 1017 declaring a state of national emergency. Proclamation 1017 is a license given to the military and police to use against whosoever they perceive to be enemies; it silences all forms of criticism, including media reporting.

Through Proclamation 1017, Gloria Macapagal Arroyo has arrogated unto herself the power to promulgate decrees, orders and regulations (last paragraph), not different, in effect, from Amendment No. 6, which Marcos used to legislate:

“Whenever in the judgment of the President, there exists a grave emergency or a threat or imminence thereof, … he may, in order to meet the emergency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land.”

In Proclamation 1017, Gloria Macapagal Arroyo alleges a “conspiracy” between “elements in the political opposition,” “extreme left,” and “extreme right,” fueled by “certain segments of the national media” to “bring down the duly constituted Government elected in May 2004.” (1st and 3rd Whereas Clauses) All who are or may be identified as belonging to the political opposition, extreme left, extreme right and the national media are targets.

Proclamation 1017 is arbitrary; it contains no clear directives, standards or guidelines; it sets no time frame for the duration of the emergency. Even worse, Gloria Macapagal Arroyo’s public announcement categorically cedes to the Armed Forces of the Philippines and the Philippine National Police the power to do whatever needs to be done as a consequence of this Proclamation, without limit or accountability.


There is neither factual nor legal basis for the declaration of a national emergency. In her public statement announcing Proclamation 1017, Gloria Macapagal Arroyo herself over nationwide television announced that she was “in control” of the situation and that threats against her government had already been neutralized and quelled. There is, therefore, no real emergency to speak of. In addition, if all Gloria Macapagal Arroyo wants to do is to prosecute those who violate the law, there are adequate laws and processes to investigate and prosecute them.

Proclamation 1017 cites two constitutional provisions as its legal basis: the commander-in-chief provision (Art. VII, Sec. 18) and the emergency powers provision (Art. XII, Sec. 17).

Under Section 18, the only grounds to call out the Armed Forces are lawless violence, invasion or rebellion; while the only grounds to suspend the privilege of the writ of habeas corpus, or to declare martial law are invasion or rebellion. Not one of these grounds exists. A so-called “conspiracy to bring down” Gloria Macapagal Arroyo is not—in and of itself—lawless violence, invasion or rebellion.

While Art. XII, Sec. 17 allows the President to declare a state of national emergency (which may include a “military national emergency”), the only power granted the State under this provision is to “temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.” This power may only be exercised during the emergency and under reasonable terms.

By “saving democracy,” Gloria Macapagal Arroyo has just destroyed it. FLAG calls on Gloria Macapagal Arroyo to withdraw her Proclamation.

Quezon City, Philippines, 24 February 2006.



JOSE MANUEL I. DIOKNO
Chairman

Saturday, December 31, 2005

FLAG Statement - December 31, 2006

STATEMENT
ON THE MURDER OF JUDGE HENRICK GINGOYON

The FREE LEGAL ASSISTANCE GROUP [FLAG] condemns the murder of FLAG lawyer, Judge Henrick Gingoyon.  

Judge Gingoyon is remembered by FLAG for his contributions to the cause of human rights.  As a FLAG lawyer based in Cebu, he pursued the defense of those who could not find anyone to defend them:  political prisoners, workers, slum dwellers, farmers, and victims of human rights violations.  His relentless defense of human rights cases distinguished him as a human rights lawyer and a man of conviction.

As a FLAG lawyer, he received death threats and was placed under surveillance.  On 28 August 1987, at the height of the coup, Judge Gingoyon’s home was illegally raided by the military.  During the raid, soldiers manhandled his then 10-year daughter by stepping on her stomach.  A year later, Judge Gingoyon was among those named in a death list prepared by the military and distributed to vigilantes in Toledo City, which called for his immediate execution.

His brutal murder illustrates the complete breakdown of law and order in the Philippines.  The killing of any judge is an attack on the independence and integrity of the judiciary; it jeopardizes the conditions under which justice may be dispensed.  

Media reports indicate that Judge Gingoyon was walking towards his home when two unidentified men on board a motorcycle shot him.  No information as to the identities of the perpetrators or the reason behind his murder is yet available.  However, the modus operandi of his murder is reminiscent of the murders of other FLAG lawyers.

As FLAG mourns his death, FLAG demands a speedy, impartial and full investigation into the murder of Judge Henrick Gingoyon in order to bring the perpetrators before the bar of justice.  

Quezon City, Philippines, 31 December 2005.



JOSE MANUEL I. DIOKNO (computer generated hence unsigned)
Chair

Friday, October 14, 2005

FLAG'S POSITIONS ON RECENT DEVELOPMENTS (OCTOBER 8, 2005)



  • “Rule of Calibrated Preemptive Response.”  On 21 September 2005, Executive Secretary Eduardo Ermita issued a statement on “unlawful mass actions” where he announced the “rule of calibrated preemptive response.”  The following day, FLAG wrote Executive Secretary Ermita, seeking clarification of the “rule.”  On 28 September 2005, Undersecretary Edwin R. Enrile replied to FLAG “emphasizing that calibrated pre-emptive response is not an exercise of any emergency power,” but “is the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and restore public order” and is “a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets.”

FLAG holds that the “rule of calibrated preemptive response” violates the Constitution and existing laws:


  • It does not have any legal basis or legal effect since the “rule” was promulgated by a press statement and affirmed by a letter response.  To date, no law, or executive or administrative or similar order has been passed promulgating the “rule.”


  • It is void for vagueness, and arbitrary, since it delegates wide discretion without discernible standards to law enforcers to determine and act in “more pro-active and dynamic” ways to enforce existing laws, regulations and ordinances.


  • It is undue delegation of legislative power, since it effectively repeals the maximum tolerance policy enunciated in Batas Pambansa 880.


  • It is being used to silence legitimate dissent, as protestors who oppose the current administration are targeted for dispersal.

FLAG holds that the “no permit, no rally” provision in Batas Pambansa 880 is likewise unconstitutional:  


  • The right to peaceably assemble is enshrined in the 1987 Constitution: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances”  (Sec. 4, Article III, 1987 Constitution).  


  • In a number of decisions, the Supreme Court upheld the right to peaceably assemble as a “necessary consequence of republican and democratic institutions, and the complement of the right of free speech” (US v. Bustos, et. al., No. 12592, 8 March 1918 (37 Phil. 731); US. V. Perfecto and Mendoza, No. 177493, 4 March 1922 (43 Phil. 58); among others).  The Court further held that freedom of assembly “is entitled to be accorded utmost deference and respect”  (Reyes v. Bagatsing, G.R. No. L-65366, November 9, 1983).


  • In Primicias v. Fugoso, L-1800, 27 January 1948 (80 Phil. 71), the Court held that an ordinance “conferring upon the Mayor power to grant or refuse to grant the permit, … would be tantamount to authorizing him to prohibit the use of the streets and other public places for holding of meetings, parades or processions” and that “would make the ordinance invalid and void or violative of the constitutional limitations.”

  • Executive Order No. 464 on Executive Privilege.  On 26 September 2005, the President issued Executive Order No. 464, requiring all heads of departments of the executive branch, all senior officials of the executive departments, all generals, flag officers and “such other officers in the judgment of the Chief of Staff” of the Armed Forces of the Philippines, officers of the Philippine National Police with the rank of chief superintendent or higher and “such other officers in the judgment of the Chief of the PNP,” senior national security officials “in the judgment of the National Security Adviser,” and “such other officers as may be determined by the President” to secure the President’s prior consent before appearing before the Senate or the House of Representatives.  

FLAG holds that Executive Order No. 464 is of doubtful constitutionality:


  • Executive privilege is not absolute and may not be based on a generalized need for confidentiality.  In Almonte v. Vasquez, G.R. No. 95367, 23 May 1995, the Supreme Court held: “… while in cases which involve state secrets it may be sufficient to determine from the circumstances of the case that there is reasonable danger that compulsion of the evidence will expose military matters without compelling production, no similar excuse can be made for a privilege resting on other considerations.”


  • Executive Order No. 464 restricts the plenary power of Congress to legislate.  Sec. 21, Art. VI of the 1987 Constitution grants Congress the power to conduct inquiries in aid of legislation; such power is indispensable to the exercise of legislative power.  Congress cannot enact meaningful and relevant laws without determining the factual circumstances that surround, cause or perpetuate instances of executive abuse and anomalies in the exercise of executive power.  


  • It removes the cloak of public accountability mandated by the 1987 Constitution (Sec. 1, Art. XI, 1987 Constitution), since it effectively prohibits all public officials from providing information on key policies and outcomes, and effectively prohibits Congress—and the general public—from determining whether ethical standards of performance and executive conduct are met.


  • It is undue delegation, since it grants broad discretion to the Armed Forces Chief of Staff, the Chief of the Philippine National Police, and the National Security Adviser, to determine who “in their judgment” are covered by executive privilege, without providing clear standards upon which to base that discretion.


  • It is ultra vires, since the President has absolutely no power to amend the Constitution.  Sec. 22, Art. VI of the 1987 Constitution simply refers to heads of departments.  Heads of departments refer solely to Cabinet Secretaries  (see Record of the Constitutional Commission: Proceedings and Debates, Vol. II, pages 86, 133, 147, 149, 150-151).  By requiring all public officials to secure the President’s prior consent before appearing before both Houses of Congress, the President has effectively amended Sec. 22, Art. VI of the 1987 Constitution—an act clearly outside the President’s authority and legitimate powers.

  • Alleged Forthcoming Proclamation of National Emergency.   It is unclear whether the President will, indeed, proclaim a national emergency; it is also unclear what ground/s the President may use to justify such proclamation.  There have been speculations that the President will issue a proclamation based on “clear and present danger of a terrorist attack.”  Such ground is not authorized by the 1987 Constitution.

The 1987 Constitution enumerates the President’s emergency powers and the grounds under which the President may exercise such powers:


  • As Commander-in-Chief, the President may call out the Armed Forces of the Philippines, whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion (Sec. 18 (para. 1), Article VII, 1987 Constitution).  This power was affirmed by the Supreme Court in Integrated Bar of the Philippines v. Zamora, et. al., G.R. No. 141284, 15 August 2000.  This power is not subject to congressional approval.


  • As Commander-in-Chief, the President may suspend the privilege of the writ of habeas corpus, for a period not exceeding 60 days, in cases of invasion or rebellion and when public safety so requires (Sec. 18 (para. 1), Article VII, 1987 Constitution).  This power is subject to congressional review and approval.


  • As Commander-in-Chief, the President may place the country or any part thereof under martial law, for a period not exceeding 60 days, in cases of invasion or rebellion and when public safety so requires (Sec. 18 (para. 1), Article VII, 1987 Constitution). This power is subject to congressional review and approval.


  • In times of national emergency, the President may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest, during the emergency and under reasonably prescribed terms (Sec. 17, Art. XII, 1987 Constitution).  


  • In the interest of national welfare or defense, the President may establish and operate vital industries (Sec. 18, Art. XII, 1987 Constitution).


  • In the interest of national welfare or defense and upon payment of just compensation, the President may transfer to public ownership utilities and other enterprises to be operated by it (Sec. 18, Art. XII, 1987 Constitution).

FLAG holds that none of the grounds for the declaration of a national emergency currently exist; any proclamation of a state of emergency is thereof of doubtful constitutionality.  

  • Anti Terrorism Act of 2005.  On 4 October 2005, the House Committees on Justice and Foreign Affairs approved the “Anti-Terrorism Act of 2005.”  FLAG has long opposed the anti-terrorism bills and submitted its Position Paper to Congress on 10 May 2005.  The bill adopted by the House Committees does not take into consideration any of FLAG’s objections.  

FLAG holds that the Anti Terrorism Act of 2005 violates the 1987 Constitution:


  • It is void for vagueness; the definition of terrorism is vague, overbroad and open to abuse.


  • It violates the right to privacy, free speech, freedom of assembly and association, and the right to liberty.


  • It is an illegitimate exercise of police power; the means employed to combat terrorism are not reasonable, are unduly oppressive and do not meet the public necessity it seeks to address.


  • It imposes the death penalty.


  • It punishes acts of terrorism that are already adequately punished by existing law.