最後，既然文告沒有授予她額外的權力，在「緊急情況」期間，憲法和權利清單就沒有被擱置，正如同最高法院在「Sanlakas vs. Angelo Reyes」一案中已經提過的那樣，即：
馬拉坎南宮和國家通訊委員會對於媒體的控管：是非法的 以暴力的方式驅散和逮捕像是Randy David教授和Argee Guevarra律師這樣的集會人士，明顯地根本就沒有法律上的基礎。在憲法第三條的保障下，反抗任意逮捕的權利尚未被終止。艾若育總統宣佈「取消所有集會的許可令」，這也是非法的，因為只有市長和當地政府依法才有權力准許或取消這些許可令。集會自由依然是有效的權利。
COUNSELS FOR THE DEFENSE OF LIBERTIES
PRES. ARROYO'S EMERGENCY PROCLAMATION: A MARCOSIAN LEGAL TOOL TO STAY IN POWER
CODAL condemns Pres. Gloria Arroyo's latest violation of the Constitution by issuing Proclamation 1017 declaring a state of emergency. This proclamation is no different from the proclamations issued by Pres. Ferdinand Marcos during martial law in his attempt to stay in power despite the peoples revulsion to his reign.
Firstly, Sec. 17, Art. XII which was used as basis by Proclamation 1017 is a martial law provision initially crafted by Pres. Ferdinand Marcos during his reign to empower him to take over private businesses. Sec. 17 provides that:
'In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.
Pres. Arroyo is not the State and there is no way that the Constitution could have granted the President granted the plenary powers of a "state" especially after the peoples' martial law experience with Pres. Marcos. The intent of the 1987 Constitution, which is steeped in provisions ensuring congressional checks to the powers of the President, is to grant such power to the President only upon a law passed by Congress. The 'state' in Sec. 17 therefore means Congress issuing a law and the President implementing such. It is impossible for the 1987 Constitution to have granted Pres. Arroyo the unbridled power to take over private businesses without Congressional approval. It must be noted that congressional approval is required even if she exercises her much bigger martial law powers. Furthermore, this is clearly reflected in Sec. 23 (2) of Art. VI which expressly provides for emergency powers:
Sec. 23 (2) "In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy.
Since the Constitution requires congressional approval of the President's bigger powers of martial law and other national emergency powers, Proclamation 1017 cannot survive legally and constitutionally without legislative participation. Clearly, there was no law or congressional concurrence with Proclamation 1017 which was unilaterally declared by Pres. Arroyo. After attacking the legislative power of Congress through EO 464, Pres. Arroyo has, like Pres. Marcos, again arrogated unto herself one more legislative function.
Secondly, using Sec. 18, Art. VII of the Constitution does not grant constitutionality to Proclamation 1017 not only because a 'state of emergency" is not found in that section but also because of the absence of factual basis for such. Sec. 18 states that :
Sec. 18 "The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial laws or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.
Nowhere in this provision is a "state of emergency" that grants her additional powers mentioned. Since the Constitution expressly provided for 'emergency' powers in other provisions, she cannot proclaim such emergency under Sec. 18. Should Pres. Arroyo insist that Proclamation 1017 is based under her martial law powers in Sec. 18, then, such proclamation cannot be deemed to have granted her additional powers. She is just giving notice that she is calling on the armed forces to suppress rebellion or lawless violence within the framework of her current and existing powers prior to the proclamation. She cannot interpret this as a grant of additional powers to suppress rallies, arrest without warrants, or take over media facilities.
Furthermore, there must be lawless violence, rebellion or invasion before the President may call out the armed forces. Rallies are not "lawless" violence but are legitimate exercise of the peoples' rights under the Constitution. By deeming rallies as 'lawlessness' Pres. Arroyo has, like Pres. Marcos, illegally considered the exercise of constitutional rights an attack on her and national security.
Lastly, since the proclamation grants her no additional power, the Constitution and the Bill of Rights are not suspended during a state of emergency as the Supreme Court has said so in Sanlakas vs. Angelo Reyes, to wit:
Should there be any "confusion" generated by the issuance of Proclamation No. 427 and General Order No. 4, we clarify that, …, the mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights. Indeed, if a state of martial law does not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas corpus, then it is with more reason that a simple declaration of a state of rebellion could not bring about these conditions. At any rate, the presidential issuances themselves call for the suppression of the rebellion "with due regard to constitutional rights."
Malacanang's and NTC's regulation of media: Illegal
The violent dispersal and the arrest of rallyists such as Prof. Randy David and Atty. Argee Guevarra are clearly without legal basis. The right against arbitrary arrest under Art. III of the Constitution has not been suspended. Pres. Arroyo's declaration that 'all rally permits are revoked" is also illegal considering that Mayors and local governments are the ones granted the power to grant or revoke these permits under the law. Freedom of assembly is still operative.
The sanctions threatened against media with government closure or takeover for 'covering' opposition activities is an attack against press freedom, since freedom of the press still subsist. The warnings by executive officials are therefore illegal and subjects these officials to criminal and administrative liabilities.
Pres. Gloria Arroyo has totally become a "Pres. Marcos", on the very day that Pres. Marcos was ousted from power twenty years ago today. CODAL demands that Pres. Arroyo to respect the Bill of Rights and the Constitution despite her Proclamation. Since Proclamation 1017 does not grant her additional powers but merely causes further instability, we demand that she withdraws Proclamation 1017. CODAL calls on all lawyers to come out openly and publicly criticize the violation of the Constitution and peoples' rights. CODAL calls on lawyers to offer their legal services to the people who will become victims of the implementation of Proclamation 1017. CODAL also condemns the arrest in particular of Atty. Argee Guevarra who was not only exercising his constitutional rights but also practicing his profession as a lawyer. CODAL urges members of the legal profession, including law students to come out and be part of the peoples assertion of their basic constitutional rights against the impending threat of martial rule.
Reference : Atty. Neri Javier Colmenares-Spokesperson
Date : 25 February 2006