Senator Richard Gordon caused a stir last week when he announced that he would file a Resolution to grant President Rodrigo Duterte the power to suspend the privilege of the writ of habeas corpus. Senate President Pro-tempore Franklin Drilon immediately rebuffed the idea.
On Sept. 13, 2016, Sen. Gordon filed Senate Bill No. 1134 entitled, “An Act Declaring a National Emergency Against Drugs and Terrorism, Establishing a National Policy to Authorize the President, In Accordance with the Constitution, to Exercise Necessary and Proper Powers to Address Such Emergency.”
In his explanatory note, Gordon said that, “the existence of a national emergency needs to be officially declared by Congress alongside a national policy to allow the President to effectively take the necessary and proper measures required by the exigencies of the situation, but for a limited period only, and subject to restrictions prescribed by Congress.”
He added that the bill seeks to protect civil liberties and promote the system of check and balances as provided for under Article VI, Section 23 (2) of the Philippine Constitution. He likewise invoked the principle of salus populi est suprema lex.
A new species of writ
What immediately caught my attention was the mention of a new species of writ – the writ of salus populi est suprema lex.
Section 11 of the said Senate Bill mandates that, “During the national emergency, upon probable cause of a clear and present danger, including but not limited to terrorism, any person possessing intelligence information vital to the protection of life and limb may be ordered by the judge, through a writ of salus populi est suprema lex to submit to the proper authorities for investigation for as long as reasonably required in the interest of national security or public safety.”
The suspension of the privilege of writ of habeas corpus is nowhere in that bill.
Inherent powers of the state
The inherent powers of the State are the police power, the power of eminent domain, and the power of taxation. These powers are inherent and do not need to be expressly conferred by constitutional provision on the State.
They are supposed to co-exist with the State. The moment the State comes into being, it is deemed invested with these powers as its innate attributes. (Constitutional Law, Justice Isagani A. Cruz)
Among these three powers of the State, the police power is considered the most pervasive, the least limitable, and the most demanding.
Police power, as defined by Black’s Law Dictionary, is the power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity. The police power is subject to limitations of the State constitution, and especially to the requirement of the due process. Police power is the exercise of the sovereign right of a government to promote order, safety, security, health, morals and general welfare within the constitutional limits and is an essential attribute of a government.
Justification of the police power
How can the police power of the government be justified? The justification is found in the Latin maxims, salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which calls for the submission of individual privileges to the interests of the majority.
Salus populi est suprema lex means that the welfare of the people is the supreme law. On the other hand, Sic utere tuo ut alienum non laedas means that one should use his own property in such a manner as not to injure that of another.
The exercise of police power should not be static – it must move with the dynamics of the society that it is supposed to regulate. Once implemented, it may be done over and over again, as often as necessary for the protection or the promotion of public welfare.
What is a writ?
A writ is simply a written judicial order to perform a specified act, or giving authority to someone to have it done. Normally, writs refer to “judicial” writs, in contradistinction to “original” writs, which were issued in a king’s name (as in old English practice).
The Philippine writ system includes the writs of mandamus, prohibition, quo warranto, habeas corpus, and certiorari. The writs of Amparo and habeas data were later added to our judicial writ system.
If Senate Bill No. 1134 is to become a law, then we will have a new writ in our midst, which is the writ of salus populi est suprema lex.
The doctrine of necessity
I believe that Gordon’s proposed law is based on the doctrine of necessity. This doctrine defends the State actors’ extralegal actions, which are designed to restore order, and deems the same extralegal actions as constitutional.
According to some literature, the doctrine of necessity is primarily anchored on the legal writings of Henry de Bracton (1210-1268), a leading medieval English jurist and author of “De legibus et consuetudinibus Angliae (On the laws and customs of England).” Bracton was a priest, a chancellor of Exeter Cathedral, an itinerant justice for King Henry III, and a judge of the Coram Rege (which became the Court of Queen’s Bench during modern times).
Others traced the doctrine of necessity to Sir William Blackstone (1723-1780). Blackstone is, likewise, an English jurist and author of “Commentaries on the Laws of England.” Blackstone was a judge of the Court of Common Pleas, an elected member of the Parliament, a solicitor general for the Queen and a knight.
This doctrine is premised on the assumption that the Constitution’s provisions cannot answer for every kind of society’s situation that may endanger public order and safety. Courts have recognized the doctrine of necessity that in times of extreme emergency, the State may validly take on actions, which may otherwise be illegal. The courts are under the duty to uphold the legal order but there are times that they consider as valid the actions of the executive department or its law enforcement, which would be unlawful in normal circumstances, but which is justified in times of extreme emergency following the doctrine of necessity. Professor John Hatchard had extensively discussed the misuse of the doctrine of necessity in his book, “Tackling the Unconstitutional Overthrow of Democracies.”
Can these extrajudicial actions of the State be ratified by the people? I will touch on this in my subsequent insights.
The proposed writ of salus populi est suprema lex
As envisioned by Gordon, the writ of salus populi est suprema lex 1) will be issued by a judge, 2) directed to a person possessing intelligence information, 3) ordering the said person to submit to an investigation conducted by the proper authorities, 4) for an indefinite period of time. Of course, the issuance of this kind of a writ should be done only in times of national emergencies and upon showing of a clear and present danger.
My take is that the proposed law should specify who would be allowed to apply for the issuance of this writ in order to prevent the abuse of such a potent tool.
There are some issues that still need to be addressed. In the event that the person directed in the writ will question the same, what will be his legal remedy? Who will determine if such a person is indeed in possession of intelligence information? Being held for “investigation for as long as reasonably required” is somewhat encompassing and gives a chilling effect. My insight tells me that the period of investigation should be definite and specific. Otherwise, this may result in illegal detention and again be abused by the concerned authorities.
On the other hand, what will happen if the person, subject of the writ, ignores the writ? Will the person be arrested or detained, as if he committed a contempt of court, until such time that he complies with the writ?
Without the specifics as pointed out, the writ of salus populi est suprema lex loses its pangs!
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