CHR: Human rights, writ of habeas corpus remain during state of national emergency, calamity

Kristine Joy Patag (Philstar.com) - March 23, 2020 - 9:11am

MANILA, Philippines (Updated 2:26 p.m.) — A national state of emergency does not suspend human rights and the writ of habeas corpus in the country, the Commission and Human Rights said.

This follows Interior and Local Government Undersecretary Martin Diño’s remarks in a radio interview that “human rights are withdrawn during State of Emergency.”

In a March 21 interview on Superadyo dzBB, he said: “Wala na hong karapatan. Tandaan niyo, State of Emergency ngayon. Ang karapatan pantao ay nawawala pagdating ng State of Emergency… ‘Pag ka ho may state of emergency, ‘yung writ of habeas corpus ay nawawala na po yan.”

Diño's assertion is incorrect. The 1987 Constitution only allows the suspension of the privilege of the writ of habeas corpus—a safeguard against arbitrary arrest and detention—in extraordinary circumstances. A state of emergency is not among those circumstances.

An earlier state of national emergency, declared in September 2016 and never lifted since then, did not suspend the privilege.

In a statement, the human rights commission said “there may be acceptable restrictions” during the state of national emergency, such as freedom of movement in support of social distancing.

“But restrictions must also follow human rights standards, such that they should be lawful, necessary, proportionate, and should not be used to target specific groups, minorities or individuals,” the Commission stressed.

Government guidelines

President Rodrigo Duterte ordered an “enhanced community quarantine” across Luzon from March 17 to April 12, among the latest stringent measures enforced to curb the spread of the novel coronavirus disease.

Under the guidelines, movement is restricted and only essential workers and those doing essential trips—such as buying groceries and medicines—are allowed to leave the house.

Duterte also issued Proclamation 929 and placed the entire country under State of Calamity due to the coronavirus disease on March 16. Prior to this, Duterte on March 8 declared public health emergency, through Proclamation 922.

Neither declaration did not contains a provision declaring a suspension of the writ of habeas corpus—safeguards against warrantless arrest—nor did it state that human rights are no longer given.

The Constitution also holds that the privilege of the writ of habeas corpus shall only be suspended “in cases of invasion or rebellion or when the public safety requires it.”

CHR also pointed out that even DILG circular states that there shall be “no violations of human rights,” amid the implementation of the enhanced community quarantine.

Part of the DILG Memorandum Circular 2020-062 reads: “LGUs are to ensure that no violations of human rights are committed by any border patrol staff or any employee or officer granted authority by it to perform tasks relative to the implementation and maintenance of the enhanced community quarantine.”

NUPL: There are and there should be rights during emergencies and calamities

The National Union of Peoples’ Lawyers also stressed that “there are and should be” rights during emergencies and calamities, although these may be limited and regulated.

NUPL issued a legal opinion on Sunday night on questions relating to the quarantine enforced across Luzon.

The group of lawyers noted that even with the most extreme situation, the Constitution, which includes the Bill of Rights and Social Justice provisions, remains operative.

“The right to life, to health, to basic social services, to free expression, free press, participation in matters of public concern, and many other basic rights are not quarantined, and even gain more importance and significance during situations such as the present one,” they added.

https://www.philstar.com/headlines/2020/03/23/2002902/chr-human-rights-writ-habeas-corpus-remain-during-state-national-emergency-calamity

COVID-19, Bill Barr and the American authoritarian tradition

By Patrick G. Eddington, Opinion Contributor — 03/26/20 11:00 AM EDT

Barr’s power play for essentially open-ended suspensions of criminal proceedings and related matters has nothing to do with stopping the spread of COVID-19. Barr’s proposals, at least so far as we know from public reporting thus far, involve giving judges the power to suspend court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.” The only reason to suspend court proceedings would be if no judges, court recorders, or other court personnel were available to deal with cases. That’s not the case now and is highly unlikely ever to be the case. Our legal system can absolutely continue to operate in the digital age, as my own experience and that of many others demonstrates.

The condemnation of Barr’s proposals has been swift and bipartisan. Sen. Chuck Schumer (D-N.Y.), representing one of the states hardest hit by COVID-19, had a terse response to Barr’s gambit: “Hell no.” Rep. Justin Amash (I-Mich.) tweeted “Congress must loudly reply NO.” Sen. Rand Paul (R-Ky.) went further in his tweet:

“We absolutely must, must, resist government run amok taking advantage of a crisis. This is how your liberty dies. Stand up America and resist.”

Resist indeed.

https://thehill.com/blogs/congress-blog/judicial/489599-covid-19-bill-barr-and-the-american-authoritarian-tradition

>>8573730

heh, and "related matters" uh huh.

We shall see. The argument will be:

Who can suspend habeas corpus? The President alone or only Congress?

Suspension of the writ of habeas corpus has been rebuked by the Supreme Court in cases.

Lincoln confronted opinions that only Congress could suspend the writ.

“Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion,” Lincoln argued.

And the contrary position:

The Suspension Clause of the Constitution (Article I, Section 9, Clause 2), states: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.” Although the Constitution does not specifically create the right to habeas corpus relief, federal statutes provide federal courts with the authority to grant habeas relief to state prisoners. Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.

https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown