The 'takeover' provision
By Fr. Joaquin G. Bernas, S.J.

TO my recollection, the ruling of the Supreme Court on Proclamation 1017 contains the first authoritative pronouncement on the meaning and scope of the "takeover" provision found in Article XII, Section 17. The provision says: "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."

The question the provision poses is: By whom is this power exercised?

It will be noticed that the power to take over public utilities is made to reside in the State. However, the State, in constitutional law, is a "complexus" of four elements: people, territory, government, sovereignty.

The powers of a State are normally exercised by government. But government itself, under our system, consists of three departments: legislative, executive, judicial. Which of these branches may exercise the power?

In my "Commentary" on the 1987 Constitution, I described the background of this provision thus: "The provision, when first introduced, was a product of the 'martial law' thinking of the 1971 Constitutional Convention. In effect at the time of the approval of this provision was Letter of Instruction No. 2 of President Marcos dated 22 September 1972, instructing the secretary of national defense to take over 'the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency.'

"This letter of instruction was among the executive acts which the Convention wanted ratified by Section 3(2), Article XVII of the 1973 Constitution. It was thus clear that in the mind of the Convention, the power, as granted under the 1973 Constitution, could be exercised by the executive arm of the government. And it was for the executive arm to decide whether 'national emergency' and 'public interest' demanded the temporary takeover.

"Moreover, unlike Section 23(2), Article VI, authorizing Congress to delegate by law emergency powers to the President, which powers cease upon the next adjournment of Congress unless sooner withdrawn by the same, Section 7 [now Section 17] put no time limit on the duration of the emergency takeover. While the takeover would be temporary, the duration of the takeover would be discretionary with the President."

Further in my "Commentary," I said: "It should also be noted that while Section 7 [now Section 17] may have been a product of 'martial law thinking,' it did not require a martial law situation for it to be operative. Temporary state takeover was justified in 'times of national emergency, when the public interest requires.' The law did not specify the type of emergency that would justify temporary State takeover. Very broad discretion was given to the President. Hence, under this provision, the scope of judicial review was even narrower than that in the now obsolete habeas corpus doctrine of Lansang v. Garcia.

"When the provision was introduced in the 1986 Constitutional Commission, 'national emergency' was explained as encompassing threat from external aggression, calamities, or natural disasters, but not strikes. The duration of the emergency is the measure of the duration of the takeover. Moreover, the phrase 'under reasonable terms prescribed by it' was added upon the instance of Commissioner Jamir. When asked, moreover, what 'it' referred to, Jamir said that it referred to the State. When pressed whether he meant Congress or the President, Jamir said: 'I suppose it will be through an appropriate agency.' Section 17 does not require, as does Article VI, Section 23(2), that the authorization be 'by law.' The impression that is thus given is that the authorization can come from the President."

Justice Dante Tinga referred to my view in his dissent. So did Solicitor General Eduardo Nachura.

Well, the "impression" I expressed in my "Commentary" did not impress the Supreme Court, even if the Supreme Court made no reference to it. The Supreme Court said that the President could declare a state of emergency broader than the emergency described in Article VI, Section 23, but she could not exercise emergency powers without authorization from Congress. What does this mean?

I take this to mean that when the President declares a state of emergency in a sense broader than that in Article VI, Section 23, she may aggressively exercise existing executive and regulatory powers to meet the emergency, but not the radical power of taking over the operation of privately owned public utilities. Exercising such radical power would be contrary to the more specific Article VI, Section 23(2).

I cannot say that I am unhappy about the Supreme Court decision. Section 17, after all, embodies a very dangerous power if left to the discretion of the President. President Macapagal-Arroyo may also have realized that, or may have been forewarned against it; hence she did not exercise the radical power of taking over privately owned public utilities.

What of President Marcos' exercise of that power? It should be recalled that Marcos exercised it only after he had declared martial law.

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