The basis for the executive declaration of Curfew

In light of the military action against Senator Antonio Trillanes, Gen. Danilo Lim and their companions at the Peninsula Hotel in Makati City yesterday, 29 November 2007, the executive department announced a curfew in Metro Manila and its surrounding environs, to take effect between 12:00 a.m. to 5 a.m. of 30 November 2007.

The curfew was announced by Secretary Ronaldo Puno, although I’m not really sure if there’s any official executive issuance accompanying the imposition of curfew. To be sure, I would want to read any such issuance to see its basis, even for the sake of legal curiousity. Some personalities already labelled it as unconstitutional and illegal.

To recall, President Ferdinand Marcos issues General Order No. 4 on 22 September 1972, which reads in part:

WHEREAS, Proclamation No.1081, dated September 21, 1972, declaring a state of martial law throughout the land was issued because of wanton destruction of lives and property, widespread lawlessness and anarchy, and chaos and disorder now prevailing throughout the country, which condition has been the intended consequence of the activities of groups of men now actively engaged in a criminal conspiracy to seize political and state power in the Philippines and to take over the Government by force and violence the extent of which has now assumed the proportion of an actual war against our people and their legitimate Government;

WHEREAS, terroristic activities, assassination of innocent citizens and leaders of our society, arsons and deliberate destructions of public and private property as well as military installations and vital public facilities and services, illegal and tumultuous assemblies designed to generate hate against our legitimate Government and its duly constituted authorities, and lootings and robberies, are going on unabated especially during nighttime due to the mounting efforts of those radical and lawless elements who are now actively challenging and defying the Government through actual military confrontation; and

WHEREAS, it is necessary to restrict the movement of our inhabitants during certain hours of the day in order to prevent unnecessary loss of lives or injury to persons as well as the deliberate and wanton destruction of property and the disruption of essential public facilities and services through sabotage, arson and other similar destructive means, and in order furthermore to make more effective the implementation and enforcement of the martial law declared in and by virtue of Proclamation No.1081 dated September 21, 1972.

NOW, THEREFORE, I, Ferdinand E. Marcos, Commander-in-Chief of all the Armed Forces of the Philippines, pursuant to the aforesaid Proclamation No. 1081 dated September 21, 1972, do hereby order that a curfew be maintained and enforced throughout the Philippines between the hours of twelve midnight and four o’clock in the morning and that between these hours and during the effectivity of this order no person in the Philippines shall be allowed to move about outside his or her residence unless he or she is authorized in writing to do so by the military commander-in-charge of his or her area of residence, and that any person who violates this order shall be arrested and forthwith taken into custody and kept within the premises of the nearest military camp and shall be released not later than twelve o’clock noon following the day of his or her apprehension unless there are valid and compelling reasons or ground for his or her continued detention in which case he or she shall be transferred to and kept in the nearest prison camp.

The basis for the curfew during President Marcos’ time is the declaration of Martial Law, which, in turn, is premised on the Commander-in-Chief powers provided under the Constitution. I had the chance to note the “sequence” of “graduated powers” under the Commander-in-Chief power:

The Commander-in-Chief powers of the President provides a “sequence” of “graduated powers”. From the most to the least benign, these Commander-in-Chief powers are: (1) the calling out power; (2) the power to suspend the privilege of the writ of habeas corpus; and (3) the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power.

These powers, in turn, are provided under Section 18, Article VII of the Constitution, which reads:

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. xxx

At the very least, it would be of legal interest how the curfew is being justified now. More importantly, however, the government should justify — and I would gladly presume that there’s a justification — its perceived encroachment of Constitutional rights. The Constitution (Section 6, Article III) provides:

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

The bone of contention is the “as may be provided by law” part. For instance, the Child and Youth Welfare Code (P.D. 603) provides:

Article 139. Curfew Hours for Children. – City or municipal councils may prescribe such curfew hours for children as may be warranted by local conditions. The duty to enforce curfew ordinances shall devolve upon the parents or guardians and the local authorities.

There is, therefore, a delegation from Congress in case of the “curfew hours for children”. Could the executive department, without any delegation from Congress, declare a curfew? It would have been ideal if a case had been decided to shed some light on this matter. The U.S. Supreme Court had the occasion to tackle a curfew declaration in Hirabayashi vs. United States, 320 U.S. 81 (1943), but that case is not applicable because, among others, “Congress authorized and implemented such curfew orders as the commanding officer should promulgate pursuant to the Executive Order of the President. The question then is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority to impose the curfew restriction here complained of.” In other words, the U.S. Congress did authorize the Executive to impose the curfew.

Now, going back to our shores, there are two legal questions that should be addressed: (1) Can the President impose a curfew without any delegation of powers from Congress?; and (2) If such delegation is not required and the imposition of curfew is authorized under the Commander-in-Chief powers of the President, did the President comply with the constitutional requirements (the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power)?

One comment

  1. I agree with your observations, Atty.

    GMA has again consciously overstepped the limitations of her constitutional powers. She didn’t even have the decency to have the curfew directive written down or published, as if whatever she utters is the law.

    Will somebody question the legality of the 12-5 curfew of GMA on November 29. I know the Supreme Court will not render this moot and academic. Said the Supreme Court in David case :

    The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

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