QUEZON CITY (MindaNews/10 April) — The looming energy crisis in Mindanao has sparked a debate on whether emergency powers should be granted the President in order to address the problem. While the President expressed some doubts on whether such grant would be appropriate for the moment, a bill was already filed by his ally in congress, Senator Antonio Trillanes, seeking to grant him emergency powers to help put an end to the energy crisis in Mindanao. While the Constitution definitely allows such option, there is a need to pause, and take stock of the propriety of taking such drastic measure. Rather than a knee-jerk reaction and headlong rush for a solution, a circumspect and deliberate consideration of the surrounding circumstances and the measures that need to be taken would be the more judicious path.
The use of emergency powers almost always presents democratic constitutional governments with a paradox: how can such a government adequately provide for emergencies and yet retain its limited character? Kathleen Sullivan, former dean of Stanford Law School, encapsulated it perfectly when she said that the theory of constitutionalism is inconsistent with an emergency exception. And yet, all constitutional democracies must live with this irony to preserve its own existence.
Granted, emergency is an elastic concept, ranging from wars or invasion, insurrection, economic depression to natural disasters. The Executive, with its intelligence-gathering capacity and quick-response capabilities, is traditionally the repository of crisis government powers, and thus must be accorded the proper flexibility to respond to the situation. Consequently, the courts are generally averse to passing judgment upon what amounts as discretionary actions of the Executive. The concomitant concentration of governmental power and its expansion in the Presidency in an emergency greatly magnifies the danger that unbridled powers would be used to the detriment of society and eventually, the destruction of the duly-constituted government.
Constitutions are primarily designed, not to achieve efficiency, but to create an intricate system of checks and balances among the branches of government. By and large, it reflects a great distrust on the part of government to exercise powers entrusted to it in a responsible manner, most notably the Executive branch. Nowhere is it truer than in the present 1987 Constitution, the pervading theme of which is to do away with all possibilities of strongman rule, no doubt a painful lesson of the Marcos dictatorship.
Several years ago I actually did a short treatise on the subject matter which concluded that an indiscriminate and injudicious grant of emergency powers entails some very serious inherent dangers. Indeed, emergency powers should only be invoked as a last resort. If options, less ominous, are conferred to the executive by the constitution and the laws sufficient to meet the declared national emergency, then by all means they must be preferred. Indeed, the slippery slope of frequent recourse to an emergency rule is the ever-present possibility that such will slide into a permanent and unconstitutional regime.
In that treatise I made a comparative analysis of the varying situations that triggered the grant of such emergency powers and how the presidents, from Marcos, to Arroyo, responded to it. The paper seeks to illustrate the dangers of haphazard employment of these extraordinary powers, though constitutional as they may be, to solve problems which can be addressed by the plethora of powers already made available to the three branches of government by the present Constitution. Extraordinary powers are powers of last resort, and rightfully so – they straddle the fine line between constitutionalism and authoritarianism. Unnecessary exercise dilutes the significance of emergencies as a legal and justified pretext to what Clinton Rossiter, in his seminal work, has termed as a constitutional dictatorship. The Philippine experience shows us the inherent dangers in this practice, and the slippery slope to which it may lead us. Former U.S. Supreme Court Justice Robert Jackson stated it so aptly when he warned that emergency power tends to kindle emergencies.
If only to caution us of the inherent dangers that attend a not-so-well-thought-of congressional grant of emergency powers, I decided to write a four (4) part series of articles (including this article) based in part on the paper entitled: Extraordinary Measures: Constitutional Powers in Times of Crisis, which I co-authored with Anna Liza Su and Edgar Bonto. This series presents a discussion on how four Philippine presidents, namely: Aquino, Ramos, Estrada and Arroyo, came to grips with the enormous emergency powers granted to them and how their exercise thereof impacted on the nation as a whole. I decided however to forego Marcos since the horrendous consequences of his exercise of absolute and tyrannical powers is well documented and extensively discussed. [Tomorrow: The Cory Experience]
(MindaViews is the opinion section of MidnaNews. Dean Tony La Viña is a human rights and environmental lawyer from Cagayan de Oro City. He was a member of the Government of the Philippines Peace Panel that negotiated with the MILF from January to June 2010. He is currently the Dean of the Ateneo School of Government. Dean Tony can be reached at Tonylavs@gmail.com. Follow him on Facebook: firstname.lastname@example.org and on Twitter: tonylavs)