Republic of the Philippines HONTIVEROS-BARAQUEL, IMELDA C.

NICOLAS, MARVIC
SUPREME COURT M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF
Manila CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED
BY AMADO GAT INCIONG, Petitioners,
G.R. No. 171396             May 3, 2006 vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J.
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD CRUZ, JR., SECRETARY, DND RONALDO V. PUNO,
LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF,
ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO ARTURO LOMIBAO, CHIEF PNP, Respondents.
BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs. x————————————-x
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO G.R. No. 171483             May 3, 2006
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON
ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ELMER C. LABOG AND SECRETARY GENERAL JOEL
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS –
POLICE, Respondents. KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS
NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C.
x————————————-x PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
G.R. No. 171409             May 3, 2006 vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., ARROYO, THE HONORABLE EXECUTIVE SECRETARY,
INC., Petitioners, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF
vs. THE PHILIPPINES, GENEROSO SENGA, AND THE PNP
HONORABLE SECRETARY EDUARDO ERMITA AND DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.
HONORABLE DIRECTOR GENERAL ARTURO C.
LOMIBAO, Respondents. x————————————-x

x————————————-x G.R. No. 171400             May 3, 2006

G.R. No. 171485             May 3, 2006 ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN LOMIBAO,Respondents.
EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. G.R. No. 171489             May 3, 2006
MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO,
ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO
ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-
GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. These seven (7) consolidated petitions for certiorari and prohibition
GARCIA AND INTEGRATED BAR OF THE PHILIPPINES allege that in issuing Presidential Proclamation No. 1017 (PP 1017)
(IBP), Petitioners, and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-
vs. Arroyo committed grave abuse of discretion. Petitioners contend
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL that respondent officials of the Government, in their professed
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF efforts to defend and preserve democratic institutions, are actually
STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS trampling upon the very freedom guaranteed and protected by the
CAPACITY AS PNP CHIEF, Respondents. Constitution. Hence, such issuances are void for being
unconstitutional.
x————————————-x
Once again, the Court is faced with an age-old but persistently
G.R. No. 171424             May 3, 2006 modern problem. How does the Constitution of a free people
combine the degree of liberty, without which, law becomes
LOREN B. LEGARDA, Petitioner, tyranny, with the degree of law, without which, liberty becomes
vs. license?3
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS
PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO On February 24, 2006, as the nation celebrated the 20th
LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE Anniversary of the Edsa People Power I, President Arroyo issued PP
PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, 1017 declaring a state of national emergency, thus:
IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES (AFP); AND EDUARDO NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
ERMITA, IN HIS CAPACITY AS EXECUTIVE Republic of the Philippines and Commander-in-Chief of the Armed
SECRETARY, Respondents. Forces of the Philippines, by virtue of the powers vested upon me
by Section 18, Article 7 of the Philippine Constitution which states
DECISION that: “The President. . . whenever it becomes necessary, . . . may
call out (the) armed forces to prevent or suppress. . .rebellion. . .,”
SANDOVAL-GUTIERREZ, J.: and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain
law and order throughout the Philippines, prevent or
All powers need some restraint; practical adjustments rather than
suppress all forms of lawless violence as well as any act of
rigid formula are necessary.1 Superior strength—the use of force—
insurrection or rebellion and to enforce obedience to all the
cannot make wrongs into rights. In this regard, the courts should
laws and to all decrees, orders and regulations promulgated
be vigilant in safeguarding the constitutional rights of the citizens,
by me personally or upon my direction; and as provided in
specifically their liberty.
Section 17, Article 12 of the Constitution do hereby declare
a State of National Emergency.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus
most relevant. He said: “In cases involving liberty, the scales
She cited the following facts as bases:
of justice should weigh heavily against government and in
favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak.” Laws and actions that restrict WHEREAS, over these past months, elements in the political
fundamental rights come to the courts “with a heavy presumption opposition have conspired with authoritarians of the
against their constitutional validity.”2 extreme Left represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists—the
historical enemies of the democratic Philippine State—who
are now in a tactical alliance and engaged in a concerted and broad front, to bring down the duly-constituted Government
systematic conspiracy, over a broad front, to bring down the duly elected in May 2004;
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
the President;
WHEREAS, the claims of these elements have been recklessly
WHEREAS, the claims of these elements have been magnified by certain segments of the national media;
recklessly magnified by certain segments of the national
media; WHEREAS, these series of actions is hurting the Philippine State
by obstructing governance, including hindering the growth of the
WHEREAS, this series of actions is hurting the Philippine State—by economy and sabotaging the people’s confidence in the
obstructing governance including hindering the growth of the government and their faith in the future of this country;
economy and sabotaging the people’s confidence in
government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these actions are adversely affecting the WHEREAS, these activities give totalitarian forces; of both the
economy; extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;
WHEREAS, these activities give totalitarian forces of both
the extreme Left and extreme Right the opening to intensify WHEREAS, Article 2, Section 4 of our Constitution makes the
their avowed aims to bring down the democratic Philippine defense and preservation of the democratic institutions and the
State; State the primary duty of Government;

WHEREAS, Article 2, Section 4 of the our Constitution makes the WHEREAS, the activities above-described, their consequences,
defense and preservation of the democratic institutions and the ramifications and collateral effects constitute a clear and present
State the primary duty of Government; danger to the safety and the integrity of the Philippine State and of
the Filipino people;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present WHEREAS, Proclamation 1017 date February 24, 2006 has been
danger to the safety and the integrity of the Philippine State and issued declaring a State of National Emergency;
of the Filipino people;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue
On the same day, the President issued G. O. No. 5 implementing of the powers vested in me under the Constitution as President of
PP 1017, thus: the Republic of the Philippines, and Commander-in-Chief of the
Republic of the Philippines, and pursuant to Proclamation No. 1017
WHEREAS, over these past months, elements in the political dated February 24, 2006, do hereby call upon the Armed Forces of
opposition have conspired with authoritarians of the extreme Left, the Philippines (AFP) and the Philippine National Police (PNP), to
represented by the NDF-CPP-NPA and the extreme Right, prevent and suppress acts of terrorism and lawless violence in the
represented by military adventurists – the historical enemies of the country;
democratic Philippine State—and who are now in a tactical alliance
and engaged in a concerted and systematic conspiracy, over a
I hereby direct the Chief of Staff of the AFP and the Chief of the G.O. No. 5. Significantly, there was no refutation from
PNP, as well as the officers and men of the AFP and PNP, to petitioners’ counsels.
immediately carry out the necessary and appropriate
actions and measures to suppress and prevent acts of The Solicitor General argued that the intent of the Constitution is to
terrorism and lawless violence. give full discretionary powers to the President in determining the
necessity of calling out the armed forces. He emphasized that none
On March 3, 2006, exactly one week after the declaration of a state of the petitioners has shown that PP 1017 was without factual
of national emergency and after all these petitions had been filed, bases. While he explained that it is not respondents’ task to state
the President lifted PP 1017. She issued Proclamation No. 1021 the facts behind the questioned Proclamation, however, they are
which reads: presenting the same, narrated hereunder, for the elucidation of the
issues.
WHEREAS, pursuant to Section 18, Article VII and Section 17,
Article XII of the Constitution, Proclamation No. 1017 dated On January 17, 2006, Captain Nathaniel Rabonza and First
February 24, 2006, was issued declaring a state of national Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio
emergency; Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio,
WHEREAS, by virtue of General Order No.5 and No.6 dated Taguig City. In a public statement, they vowed to remain defiant
February 24, 2006, which were issued on the basis of Proclamation and to elude arrest at all costs. They called upon the people to
No. 1017, the Armed Forces of the Philippines (AFP) and the “show and proclaim our displeasure at the sham regime. Let us
Philippine National Police (PNP), were directed to maintain law and demonstrate our disgust, not only by going to the streets in
order throughout the Philippines, prevent and suppress all form of protest, but also by wearing red bands on our left arms.” 5
lawless violence as well as any act of rebellion and to undertake
such action as may be necessary; On February 17, 2006, the authorities got hold of a document
entitled “Oplan Hackle I ” which detailed plans for bombings and
WHEREAS, the AFP and PNP have effectively prevented, attacks during the Philippine Military Academy Alumni Homecoming
suppressed and quelled the acts lawless violence and rebellion; in Baguio City. The plot was to assassinate selected targets
including some cabinet members and President Arroyo
NOW, THEREFORE, I, GLORIA MACAPAGAL- herself. 6 Upon the advice of her security, President Arroyo decided
ARROYO, President of the Republic of the Philippines, by virtue of not to attend the Alumni Homecoming. The next day, at the height
the powers vested in me by law, hereby declare that the state of of the celebration, a bomb was found and detonated at the PMA
national emergency has ceased to exist. parade ground.

In their presentation of the factual bases of PP 1017 and G.O. No. On February 21, 2006, Lt. San Juan was recaptured in a
5, respondents stated that the proximate cause behind the communist safehouse in Batangas province. Found in his
executive issuances was the conspiracy among some military possession were two (2) flash disks containing minutes of the
officers, leftist insurgents of the New People’s Army (NPA), and meetings between members of the Magdalo Group and the National
some members of the political opposition in a plot to unseat or People’s Army (NPA), a tape recorder, audio cassette cartridges,
assassinate President Arroyo.4 They considered the aim to oust or diskettes, and copies of subversive documents.  7 Prior to his arrest,
assassinate the President and take-over the reigns of government Lt. San Juan announced through DZRH that the “Magdalo’s D-Day
as a clear and present danger. would be on February 24, 2006, the 20th Anniversary of Edsa I.”

During the oral arguments held on March 7, 2006, the Solicitor On February 23, 2006, PNP Chief Arturo Lomibao intercepted
General specified the facts leading to the issuance of PP 1017 and information that members of the PNP- Special Action Force were
planning to defect. Thus, he immediately ordered SAF Commanding growing rapidly, hastened by the economic difficulties suffered by
General Marcelino Franco, Jr. to “disavow” any defection. The latter the families of AFP officers and enlisted personnel who undertake
promptly obeyed and issued a public statement: “All SAF units are counter-insurgency operations in the field.” He claimed that with
under the effective control of responsible and trustworthy officers the forces of the national democratic movement, the anti-Arroyo
with proven integrity and unquestionable loyalty.“ conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President’s
On the same day, at the house of former Congressman Peping ouster is nearing its concluding stage in the first half of 2006.
Cojuangco, President Cory Aquino’s brother, businessmen and mid-
level government officials plotted moves to bring down the Arroyo Respondents further claimed that the bombing of
administration. Nelly Sindayen of TIME Magazine reported that telecommunication towers and cell sites in Bulacan and Bataan was
Pastor Saycon, longtime Arroyo critic, called a U.S. government also considered as additional factual basis for the issuance of PP
official about his group’s plans if President Arroyo is ousted. 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
Saycon also phoned a man code-named Delta. Saycon identified resulting in the death of three (3) soldiers. And also the directive of
him as B/Gen. Danilo Lim, Commander of the Army’s elite Scout the Communist Party of the Philippines ordering its front
Ranger. Lim said “it was all systems go for the planned movement organizations to join 5,000 Metro Manila radicals and 25,000 more
against Arroyo.“8 from the provinces in mass protests.10

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin By midnight of February 23, 2006, the President convened her
confided to Gen. Generoso Senga, Chief of Staff of the Armed security advisers and several cabinet members to assess the
Forces of the Philippines (AFP), that a huge number of soldiers gravity of the fermenting peace and order situation. She directed
would join the rallies to provide a critical mass and armed both the AFP and the PNP to account for all their men and ensure
component to the Anti-Arroyo protests to be held on February 24, that the chain of command remains solid and undivided. To protect
2005. According to these two (2) officers, there was no way they the young students from any possible trouble that might break
could possibly stop the soldiers because they too, were breaking loose on the streets, the President suspended classes in all levels in
the chain of command to join the forces foist to unseat the the entire National Capital Region.
President. However, Gen. Senga has remained faithful to his
Commander-in-Chief and to the chain of command. He For their part, petitioners cited the events that followed
immediately took custody of B/Gen. Lim and directed Col. Querubin after the issuance of PP 1017 and G.O. No. 5.
to return to the Philippine Marines Headquarters in Fort Bonifacio.
Immediately, the Office of the President announced the
Earlier, the CPP-NPA called for intensification of political and cancellation of all programs and activities related to the 20th
revolutionary work within the military and the police anniversary celebration of Edsa People Power I; and revoked the
establishments in order to forge alliances with its members and permits to hold rallies issued earlier by the local governments.
key officials. NPA spokesman Gregorio “Ka Roger” Rosal declared: Justice Secretary Raul Gonzales stated that political rallies, which
“The Communist Party and revolutionary movement and the entire to the President’s mind were organized for purposes of
people look forward to the possibility in the coming year of destabilization, are cancelled.Presidential Chief of Staff Michael
accomplishing its immediate task of bringing down the Arroyo Defensor announced that “warrantless arrests and take-over of
regime; of rendering it to weaken and unable to rule that it will not facilities, including media, can already be implemented.”11
take much longer to end it.”9
Undeterred by the announcements that rallies and public
On the other hand, Cesar Renerio, spokesman for the National assemblies would not be allowed, groups of protesters (members
Democratic Front (NDF) at North Central Mindanao, publicly of Kilusang Mayo Uno [KMU] and National Federation of Labor
announced: “Anti-Arroyo groups within the military and police are Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various
parts of Metro Manila with the intention of converging at the EDSA government, or if they do not subscribe to what is in General Order
shrine. Those who were already near the EDSA site were violently No. 5 and Proc. No. 1017—we will recommend a
dispersed by huge clusters of anti-riot police. The well-trained ‘takeover.’” National Telecommunications’ Commissioner Ronald
policemen used truncheons, big fiber glass shields, water cannons, Solis urged television and radio networks to “cooperate” with the
and tear gas to stop and break up the marching groups, and government for the duration of the state of national emergency. He
scatter the massed participants. The same police action was used asked for “balanced reporting” from broadcasters when covering
against the protesters marching forward to Cubao, Quezon City and the events surrounding the coup attempt foiled by the government.
to the corner of Santolan Street and EDSA. That same evening, He warned that his agency will not hesitate to recommend the
hundreds of riot policemen broke up an EDSA celebration rally held closure of any broadcast outfit that violates rules set out for media
along Ayala Avenue and Paseo de Roxas Street in Makati City.12 coverage when the national security is threatened.14

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 Also, on February 25, 2006, the police arrested Congressman
as the ground for the dispersal of their assemblies. Crispin Beltran, representing the Anakpawis Party and Chairman
of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
During the dispersal of the rallyists along EDSA, police arrested Bulacan. The police showed a warrant for his arrest dated 1985.
(without warrant) petitioner Randolf S. David, a professor at the Beltran’s lawyer explained that the warrant, which stemmed from a
University of the Philippines and newspaper columnist. Also case of inciting to rebellion filed during the Marcos regime, had
arrested was his companion, Ronald Llamas, president of party- long been quashed. Beltran, however, is not a party in any of these
list Akbayan. petitions.

At around 12:20 in the early morning of February 25, 2006, When members of petitioner KMU went to Camp Crame to visit
operatives of the Criminal Investigation and Detection Group Beltran, they were told they could not be admitted because of PP
(CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided 1017 and G.O. No. 5. Two members were arrested and detained,
the Daily Tribune offices in Manila. The raiding team confiscated while the rest were dispersed by the police.
news stories by reporters, documents, pictures, and mock-ups of
the Saturday issue. Policemen from Camp Crame in Quezon City Bayan Muna Representative Satur Ocampo eluded arrest when the
were stationed inside the editorial and business offices of the police went after him during a public forum at the Sulo Hotel in
newspaper; while policemen from the Manila Police District were Quezon City. But his two drivers, identified as Roel and Art, were
stationed outside the building.13 taken into custody.

A few minutes after the search and seizure at the Daily Retired Major General Ramon Montaño, former head of the
Tribune offices, the police surrounded the premises of another pro- Philippine Constabulary, was arrested while with his wife and
opposition paper, Malaya, and its sister publication, the tabloid golfmates at the Orchard Golf and Country Club in Dasmariñas,
Abante. Cavite.

The raid, according to Presidential Chief of Staff Michael Defensor, Attempts were made to arrest Anakpawis Representative Satur
is “meant to show a ‘strong presence,’ to tell media outlets not to Ocampo, Representative Rafael Mariano, Bayan
connive or do anything that would help the rebels in bringing down Muna Representative Teodoro Casiño and Gabriela Representative
this government.” The PNP warned that it would take over any Liza Maza. Bayan Muna Representative Josel Virador was arrested
media organization that would not follow “standards set by the at the PAL Ticket Office in Davao City. Later, he was turned over to
government during the state of national emergency.” Director the custody of the House of Representatives where the “Batasan 5”
General Lomibao stated that “if they do not follow the standards— decided to stay indefinitely.
and the standards are—if they would contribute to instability in the
Let it be stressed at this point that the alleged violations of the basis; and (3) they violate freedom of expression and the right of
rights of Representatives Beltran, Satur Ocampo, et al., are not the people to peaceably assemble to redress their grievances.
being raised in these petitions.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc.
On March 3, 2006, President Arroyo issued PP 1021 declaring that (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional
the state of national emergency has ceased to exist. because they violate (a) Section 415 of Article II, (b) Sections
1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI,
In the interim, these seven (7) petitions challenging the and (d) Section 1720 of Article XII of the Constitution.
constitutionality of PP 1017 and G.O. No. 5 were filed with this
Court against the above-named respondents. Three (3) of these In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et
petitions impleaded President Arroyo as respondent. al., alleged that PP 1017 is an “arbitrary and unlawful exercise by
the President of her Martial Law powers.” And assuming that PP
InG.R. No. 171396, petitioners Randolf S. David, et al. assailed 1017 is not really a declaration of Martial Law, petitioners argued
PP 1017 on the grounds that (1) it encroaches on the emergency that “it amounts to an exercise by the President of emergency
powers of Congress; (2) itis a subterfuge to avoid the powers without congressional approval.” In addition, petitioners
constitutional requirements for the imposition of martial law; asserted that PP 1017 “goes beyond the nature and function of a
and (3) it violates the constitutional guarantees of freedom of the proclamation as defined under the Revised Administrative Code.”
press, of speech and of assembly.
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda
In G.R. No. 171409, petitioners Ninez Cacho-Olivares maintained that PP 1017 and G.O. No. 5 are “unconstitutional for
and Tribune Publishing Co., Inc.challenged the CIDG’s act of being violative of the freedom of expression, including its cognate
raiding the Daily Tribune offices as a clear case of “censorship” or rights such as freedom of the press and the right to access to
“prior restraint.” They also claimed that the term “emergency” information on matters of public concern, all guaranteed under
refers only to tsunami, typhoon, hurricane and similar occurrences, Article III, Section 4 of the 1987 Constitution.” In this regard, she
hence, there is “absolutely no emergency” that warrants the stated that these issuances prevented her from fully prosecuting
issuance of PP 1017. her election protest pending before the Presidential Electoral
Tribunal.
In G.R. No. 171485, petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the In respondents’ Consolidated Comment, the Solicitor General
House of Representatives, including Representatives Satur countered that: first, the petitions should be dismissed for being
Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
Virador. They asserted that PP 1017 and G.O. No. 5 constitute (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and
“usurpation of legislative powers“; “violation of freedom of 171489 (Cadiz et al.) have no legal standing; third, it is not
expression” and “a declaration of martial law.” They alleged that necessary for petitioners to implead President Arroyo as
President Arroyo “gravely abused her discretion in calling out the respondent; fourth, PP 1017 has constitutional and legal basis;
armed forces without clear and verifiable factual basis of the and fifth, PP 1017 does not violate the people’s right to free
possibility of lawless violence and a showing that there is necessity expression and redress of grievances.
to do so.“
On March 7, 2006, the Court conducted oral arguments and heard
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their the parties on the above interlocking issues which may be
members averred that PP 1017 and G.O. No. 5 are unconstitutional summarized as follows:
because (1) they arrogate unto President Arroyo the power to
enact laws and decrees; (2) their issuance was without factual A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot But the power of judicial review does not repose upon the courts a
and academic. “self-starting capacity.”23 Courts may exercise such power only
when the following requisites are present: first, there must be an
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. actual case or controversy; second, petitioners have to raise a
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), question of constitutionality; third, the constitutional question must
and 171424 (Legarda) have legal standing. be raised at the earliest opportunity; and fourth, the decision of
the constitutional question must be necessary to the determination
B. SUBSTANTIVE: of the case itself.24

1) Whetherthe Supreme Court can review the factual bases of PP Respondents maintain that the first and second requisites are
1017. absent, hence, we shall limit our discussion thereon.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional. An actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is “definite
and concrete, touching the legal relations of parties having adverse
a. Facial Challenge
legal interest;” a real and substantial controversy admitting of
specific relief.25 The Solicitor General refutes the existence of such
b. Constitutional Basis actual case or controversy, contending that the present petitions
were rendered “moot and academic” by President Arroyo’s issuance
c. As Applied Challenge of PP 1021.

A. PROCEDURAL Such contention lacks merit.

First, we must resolve the procedural roadblocks. A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, 26 so that a
I- Moot and Academic Principle declaration thereon would be of no practical use or
value.27 Generally, courts decline jurisdiction over such case 28 or
One of the greatest contributions of the American system to this dismiss it on ground of mootness.29
country is the concept of judicial review enunciated in Marbury v.
Madison.21 This concept rests on the extraordinary simple The Court holds that President Arroyo’s issuance of PP 1021 did not
foundation— render the present petitions moot and academic. During the eight
(8) days that PP 1017 was operative, the police officers, according
The Constitution is the supreme law. It was ordained by the to petitioners, committed illegal acts in implementing it. Are PP
people, the ultimate source of all political authority. It confers 1017 and G.O. No. 5 constitutional or valid? Do they justify
limited powers on the national government. x x x If the these alleged illegal acts?These are the vital issues that must be
government consciously or unconsciously oversteps these resolved in the present petitions. It must be stressed that “an
limitations there must be some authority competent to hold unconstitutional act is not a law, it confers no rights, it
it in control, to thwart its unconstitutional attempt, and thus imposes no duties, it affords no protection; it is in legal
to vindicate and preserve inviolate the will of the people as contemplation, inoperative.”30
expressed in the Constitution. This power the courts
exercise. This is the beginning and the end of the theory of The “moot and academic” principle is not a magical formula that
judicial review.22 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; 31second, the exceptional “real-party-in interest” is “the party who stands to be benefited
character of the situation and the paramount public interest is or injured by the judgment in the suit or the party entitled
involved;32 third, when constitutional issue raised requires to the avails of the suit.“38 Succinctly put, the plaintiff’s standing
formulation of controlling principles to guide the bench, the bar, is based on his own right to the relief sought.
and the public;33 and fourth, the case is capable of repetition yet
evading review.34 The difficulty of determining locus standi arises in public suits.
Here, the plaintiff who asserts a “public right” in assailing an
All the foregoing exceptions are present here and justify this allegedly illegal official action, does so as a representative of the
Court’s assumption of jurisdiction over the instant petitions. general public. He may be a person who is affected no differently
Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 from any other person. He could be suing as a “stranger,” or in the
violates the Constitution. There is no question that the issues being category of a “citizen,” or ‘taxpayer.” In either case, he has to
raised affect the public’s interest, involving as they do the people’s adequately show that he is entitled to seek judicial protection. In
basic rights to freedom of expression, of assembly and of the other words, he has to make out a sufficient interest in the
press. Moreover, the Court has the duty to formulate guiding and vindication of the public order and the securing of relief as a
controlling constitutional precepts, doctrines or rules. It has the “citizen” or “taxpayer.
symbolic function of educating the bench and the bar, and in the
present petitions, the military and the police, on the extent of Case law in most jurisdictions now allows both “citizen” and
the protection given by constitutional guarantees.35 And lastly, “taxpayer” standing in public actions. The distinction was first laid
respondents’ contested actions are capable of repetition. Certainly, down in Beauchamp v. Silk,39 where it was held that the plaintiff in
the petitions are subject to judicial review. a taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the
In their attempt to prove the alleged mootness of this case, expenditure of public funds, while in the latter, he is but the
respondents cited Chief Justice Artemio V. Panganiban’s Separate mere instrument of the public concern. As held by the New
Opinion in Sanlakas v. Executive Secretary.36 However, they failed York Supreme Court in People ex rel Case v. Collins:40 “In matter
to take into account the Chief Justice’s very statement that an of mere public right, however…the people are the real
otherwise “moot” case may still be decided “provided the party parties…It is at least the right, if not the duty, of every
raising it in a proper case has been and/or continues to be citizen to interfere and see that a public offence be properly
prejudiced or damaged as a direct result of its issuance.” The pursued and punished, and that a public grievance be
present case falls right within this exception to the mootness rule remedied.” With respect to taxpayer’s suits, Terr v. Jordan41 held
pointed out by the Chief Justice. that “the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds
II- Legal Standing to his injury cannot be denied.“

In view of the number of petitioners suing in various personalities, However, to prevent just about any person from seeking judicial
the Court deems it imperative to have a more than passing interference in any official policy or act with which he disagreed
discussion on legal standing or locus standi. with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid
Locus standi is defined as “a right of appearance in a court of down the more stringent “direct injury” test in Ex Parte
justice on a given question.”37 In private suits, standing is Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court
governed by the “real-parties-in interest” rule as contained in ruled that for a private individual to invoke the judicial power to
Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. determine the validity of an executive or legislative action, he
It provides that “every action must be prosecuted or defended must show that he has sustained a direct injury as a result
in the name of the real party in interest.” Accordingly, the
of that action, and it is not sufficient that he has a general to the parties seeking judicial review” of the Visiting Forces
interest common to all members of the public. Agreement;

This Court adopted the “direct injury” test in our jurisdiction. (3) Lim v. Executive Secretary,54 while the Court noted that the
In People v. Vera,44 it held that the person who impugns the petitioners may not file suit in their capacity as taxpayers absent a
validity of a statute must have “a personal and substantial showing that “Balikatan 02-01” involves the exercise of Congress’
interest in the case such that he has sustained, or will taxing or spending powers, it reiterated its ruling in Bagong
sustain direct injury as a result.” The Vera doctrine was upheld Alyansang Makabayan v. Zamora,55that in cases of
in a litany of cases, such as, Custodio v. President of the transcendental importance, the cases must be settled
Senate,45Manila Race Horse Trainers’ Association v. De la promptly and definitely and standing requirements may be
Fuente,46Pascual v. Secretary of Public Works47 and Anti-Chinese relaxed.
League of the Philippines v. Felix.48
By way of summary, the following rules may be culled from the
However, being a mere procedural technicality, the requirement cases decided by this Court. Taxpayers, voters, concerned citizens,
of locus standi may be waived by the Court in the exercise of its and legislators may be accorded standing to sue, provided that the
discretion. This was done in the 1949 Emergency Powers following requirements are met:
Cases,Araneta v. Dinglasan,49 where the “transcendental
importance” of the cases prompted the Court to act liberally. (1) the cases involve constitutional issues;
Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,50 this Court resolved to pass upon the issues raised due (2) for taxpayers, there must be a claim of illegal disbursement
to the “far-reaching implications” of the petition of public funds or that the tax measure is unconstitutional;
notwithstanding its categorical statement that petitioner therein
had no personality to file the suit. Indeed, there is a chain of cases
(3) for voters, there must be a showing of obvious interest in the
where this liberal policy has been observed, allowing ordinary
validity of the election law in question;
citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.51 (4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and
Thus, the Court has adopted a rule that even where the petitioners
have failed to show direct injury, they have been allowed to sue
under the principle of “transcendental importance.” Pertinent (5) for legislators, there must be a claim that the official action
are the following cases: complained of infringes upon their prerogatives as legislators.

(1)Chavez v. Public Estates Authority, 52 where the Court ruled Significantly, recent decisions show a certain toughening in the
that the enforcement of the constitutional right to Court’s attitude toward legal standing.
information and the equitable diffusion of natural resources
are matters of transcendental importance which clothe the In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status
petitioner with locus standi; of Kilosbayan as a people’s organization does not give it the
requisite personality to question the validity of the on-line lottery
(2)Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court contract, more so where it does not raise any issue of
held that “given the transcendental importance of the issues constitutionality. Moreover, it cannot sue as a taxpayer absent any
involved, the Court may relax the standing requirements allegation that public funds are being misused. Nor can it sue as a
and allow the suit to prosper despite the lack of direct injury concerned citizen as it does not allege any specific injury it has
suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Landowners in the Philippines, Inc. v. Secretary of Agrarian
Inc. v. Comelec,57 the Court reiterated the “direct injury” test with Reform,62 Basco v. Philippine Amusement and Gaming
respect to concerned citizens’ cases involving constitutional issues. Corporation,63 and Tañada v. Tuvera,64 that when the issue
It held that “there must be a showing that the citizen personally concerns a public right, it is sufficient that the petitioner is a citizen
suffered some actual or threatened injury arising from the alleged and has an interest in the execution of the laws.
illegal official act.”
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5
In Lacson v. Perez,58 the Court ruled that one of the violated its right to peaceful assembly may be deemed sufficient to
petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real give it legal standing. Organizations may be granted standing
party-in-interest as it had not demonstrated any injury to itself or to assert the rights of their members.65 We take judicial notice
to its leaders, members or supporters. of the announcement by the Office of the President banning all
rallies and canceling all permits for public assemblies following the
In Sanlakas v. Executive Secretary,59 the Court ruled that only the issuance of PP 1017 and G.O. No. 5.
petitioners who are members of Congress have standing to sue, as
they claim that the President’s declaration of a state of rebellion is In G.R. No. 171489, petitioners, Cadiz et al., who are national
a usurpation of the emergency powers of Congress, thus officers of the Integrated Bar of the Philippines (IBP) have no legal
impairing their legislative powers. As to petitioners Sanlakas, standing, having failed to allege any direct or potential injury which
Partido Manggagawa, and Social Justice Society, the Court declared the IBP as an institution or its members may suffer as a
them to be devoid of standing, equating them with the LDP consequence of the issuance of PP No. 1017 and G.O. No. 5.
in Lacson. In Integrated Bar of the Philippines v. Zamora, 66 the Court held
that the mere invocation by the IBP of its duty to preserve the rule
Now, the application of the above principles to the present of law and nothing more, while undoubtedly true, is not sufficient
petitions. to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry.
The locus standi of petitioners in G.R. No. 171396, particularly However, in view of the transcendental importance of the issue,
David and Llamas, is beyond doubt. The same holds true with this Court declares that petitioner have locus standi.
petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged “direct injury” In G.R. No. 171424, Loren Legarda has no personality as a
resulting from “illegal arrest” and “unlawful search” committed by taxpayer to file the instant petition as there are no allegations of
police operatives pursuant to PP 1017. Rightly so, the Solicitor illegal disbursement of public funds. The fact that she is a former
General does not question their legal standing. Senator is of no consequence. She can no longer sue as a legislator
on the allegation that her prerogatives as a lawmaker have been
In G.R. No. 171485, the opposition Congressmen alleged there impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
was usurpation of legislative powers. They also raised the issue of personality will not likewise aid her because there was no showing
whether or not the concurrence of Congress is necessary whenever that the enforcement of these issuances prevented her from
the alarming powers incident to Martial Law are used. Moreover, it pursuing her occupation. Her submission that she has pending
is in the interest of justice that those affected by PP 1017 can be electoral protest before the Presidential Electoral Tribunal is
represented by their Congressmen in bringing to the attention of likewise of no relevance. She has not sufficiently shown that PP
the Court the alleged violations of their basic rights. 1017 will affect the proceedings or result of her case. But
considering once more the transcendental importance of the issue
involved, this Court may relax the standing rules.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,60Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61Association of Small
It must always be borne in mind that the question of locus standi is its distilled point—from the indulgent days of Barcelon v.
but corollary to the bigger question of proper exercise of judicial Baker70 and Montenegro v. Castaneda71 to the volatile era
power. This is the underlying legal tenet of the “liberality doctrine” of Lansang v. Garcia,72Aquino, Jr. v. Enrile,73 and Garcia-Padilla v.
on legal standing. It cannot be doubted that the validity of PP No. Enrile.74 The tug-of-war always cuts across the line defining
1017 and G.O. No. 5 is a judicial question which is of paramount “political questions,” particularly those questions “in regard to
importance to the Filipino people. To paraphrase Justice Laurel, the which full discretionary authority has been delegated to the
whole of Philippine society now waits with bated breath the ruling legislative or executive branch of the government.” 75Barcelon and
of this Court on this very critical matter. The petitions thus call for Montenegro were in unison in declaring that the authority to
the application of the “transcendental importance” doctrine, a decide whether an exigency has arisen belongs to the
relaxation of the standing requirements for the petitioners in the President and his decision is final and conclusive on the
“PP 1017 cases.” courts. Lansang took the opposite view. There, the members of
the Court were unanimous in the conviction that the Court has the
This Court holds that all the petitioners herein have locus standi. authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of
Incidentally, it is not proper to implead President Arroyo as separation of powers, it shifted the focus to the system of
respondent. Settled is the doctrine that the President, during his checks and balances, “under which the President is
tenure of office or actual incumbency,67 may not be sued supreme, x x x only if and when he acts within the sphere
in any civil or criminal case, and there is no need to provide for it allotted to him by the Basic Law, and the authority to
in the Constitution or law. It will degrade the dignity of the high determine whether or not he has so acted is vested in the
office of the President, the Head of State, if he can be dragged into Judicial Department, which in this respect, is, in turn,
court litigations while serving as such. Furthermore, it is important constitutionally supreme.“76 In 1973, the unanimous Court
that he be freed from any form of harassment, hindrance or of Lansang was divided in Aquino v. Enrile.77 There, the Court was
distraction to enable him to fully attend to the performance of his almost evenly divided on the issue of whether the validity of the
official duties and functions. Unlike the legislative and judicial imposition of Martial Law is a political or justiciable
branch, only one constitutes the executive branch and anything question.78 Then came Garcia-Padilla v. Enrile which greatly
which impairs his usefulness in the discharge of the many great diluted Lansang. It declared that there is a need to re-examine the
and important duties imposed upon him by the Constitution latter case, ratiocinating that “in times of war or national
necessarily impairs the operation of the Government. However, this emergency, the President must be given absolute control for
does not mean that the President is not accountable to anyone. the very life of the nation and the government is in great
Like any other official, he remains accountable to the people 68 but peril. The President, it intoned, is answerable only to his
he may be removed from office only in the mode provided by law conscience, the People, and God.”79
and that is by impeachment.69
The Integrated Bar of the Philippines v. Zamora80—a recent case
B. SUBSTANTIVE most pertinent to these cases at bar—echoed a principle similar
to Lansang. While the Court considered the President’s “calling-
out” power as a discretionary power solely vested in his wisdom, it
I. Review of Factual Bases
stressed that “this does not prevent an examination of
whether such power was exercised within permissible
Petitioners maintain that PP 1017 has no factual basis. Hence, it constitutional limits or whether it was exercised in a
was not “necessary” for President Arroyo to issue such manner constituting grave abuse of discretion.”This ruling is
Proclamation. mainly a result of the Court’s reliance on Section 1, Article VIII of
1987 Constitution which fortifies the authority of the courts to
The issue of whether the Court may review the factual bases of the determine in an appropriate action the validity of the acts of the
President’s exercise of his Commander-in-Chief power has reached political departments. Under the new definition of judicial power,
the courts are authorized not only “to settle actual controversies invasion or rebellion. However, the exercise of such power or duty
involving rights which are legally demandable and enforceable,” must not stifle liberty.
but also “to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of II. Constitutionality of PP 1017 and G.O. No. 5
jurisdiction on the part of any branch or instrumentality of Doctrines of Several Political Theorists
the government.” The latter part of the authority represents a on the Power of the President in Times of Emergency
broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion This case brings to fore a contentious subject—the power of the
of the political departments of the government. 81 It speaks of President in times of emergency. A glimpse at the various political
judicial prerogative not only in terms of power but also of duty.82 theories relating to this subject provides an adequate backdrop for
our ensuing discussion.
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that “judicial inquiry can go no John Locke, describing the architecture of civil government, called
further than to satisfy the Court not that the President’s decision upon the English doctrine of prerogative to cope with the problem
is correct,” but that “the President did not act arbitrarily.” Thus, the of emergency. In times of danger to the nation, positive law
standard laid down is not correctness, but enacted by the legislature might be inadequate or even a fatal
arbitrariness.83 In Integrated Bar of the Philippines, this Court obstacle to the promptness of action necessary to avert
further ruled that “it is incumbent upon the petitioner to show catastrophe. In these situations, the Crown retained a prerogative
that the President’s decision is totally bereft of factual “power to act according to discretion for the public good,
basis” and that if he fails, by way of proof, to support his without the proscription of the law and sometimes even
assertion, then “this Court cannot undertake an independent against it.”84 But Locke recognized that this moral restraint might
investigation beyond the pleadings.” not suffice to avoid abuse of prerogative powers. Who shall judge
the need for resorting to the prerogative and how may its
Petitioners failed to show that President Arroyo’s exercise of the abuse be avoided? Here, Locke readily admitted defeat,
calling-out power, by issuing PP 1017, is totally bereft of factual suggesting that “the people have no other remedy in this, as
basis. A reading of the Solicitor General’s Consolidated Comment in all other cases where they have no judge on earth, but to
and Memorandum shows a detailed narration of the events leading appeal to Heaven.”85
to the issuance of PP 1017, with supporting reports forming part of
the records. Mentioned are the escape of the Magdalo Group, their Jean-Jacques Rousseau also assumed the need for temporary
audacious threat of the Magdalo D-Day, the defections in the suspension of democratic processes of government in time of
military, particularly in the Philippine Marines, and the reproving emergency. According to him:
statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the
The inflexibility of the laws, which prevents them from adopting
Philippine Army showing the growing alliance between the NPA and
themselves to circumstances, may, in certain cases, render them
the military. Petitioners presented nothing to refute such events.
disastrous and make them bring about, at a time of crisis, the ruin
Thus, absent any contrary allegations, the Court is convinced that
of the State…
the President was justified in issuing PP 1017 calling for military
aid.
It is wrong therefore to wish to make political institutions as strong
as to render it impossible to suspend their operation. Even Sparta
Indeed, judging the seriousness of the incidents, President Arroyo
allowed its law to lapse…
was not expected to simply fold her arms and do nothing to
prevent or suppress what she believed was lawless violence,
If the peril is of such a kind that the paraphernalia of the laws are
an obstacle to their preservation, the method is to nominate a
supreme lawyer, who shall silence all the laws and suspend for a absolutism should not be used as a means for the defense of
moment the sovereign authority. In such a case, there is no doubt liberal institutions,” provided it “serves to protect established
about the general will, and it clear that the people’s first intention institutions from the danger of permanent injury in a period
is that the State shall not perish.86 of temporary emergency and is followed by a prompt return
to the previous forms of political life.”92 He recognized the two
Rosseau did not fear the abuse of the emergency dictatorship or (2) key elements of the problem of emergency governance, as well
“supreme magistracy” as he termed it. For him, it would more as all constitutional governance: increasing administrative
likely be cheapened by “indiscreet use.” He was unwilling to rely powers of the executive, while at the same time”imposing
upon an “appeal to heaven.” Instead, he relied upon a tenure of limitation upon that power.”93 Watkins placed his real faith in a
office of prescribed duration to avoid perpetuation of the scheme of constitutional dictatorship. These are the conditions of
dictatorship.87 success of such a dictatorship: “The period of dictatorship must
be relatively short…Dictatorship should always be strictly
John Stuart Mill concluded his ardent defense of representative legitimate in character…Final authority to determine the
government: “I am far from condemning, in cases of extreme need for dictatorship in any given case must never rest with
necessity, the assumption of absolute power in the form of a the dictator himself…”94 and the objective of such an emergency
temporary dictatorship.”88 dictatorship should be “strict political conservatism.”

Nicollo Machiavelli’s view of emergency powers, as one element in Carl J. Friedrich cast his analysis in terms similar to those of
the whole scheme of limited government, furnished an ironic Watkins.95 “It is a problem of concentrating power—in a
contrast to the Lockean theory of prerogative. He recognized and government where power has consciously been divided—to cope
attempted to bridge this chasm in democratic political theory, thus: with… situations of unprecedented magnitude and gravity. There
must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how
Now, in a well-ordered society, it should never be necessary to
long, and to what end.”96 Friedrich, too, offered criteria for judging
resort to extra-constitutional measures; for although they may for
the adequacy of any of scheme of emergency powers, to wit: “The
a time be beneficial, yet the precedent is pernicious, for if the
emergency executive must be appointed by constitutional
practice is once established for good objects, they will in a little
means—i.e., he must be legitimate; he should not enjoy
while be disregarded under that pretext but for evil purposes.
power to determine the existence of an emergency;
Thus, no republic will ever be perfect if she has not by law provided
emergency powers should be exercised under a strict time
for everything, having a remedy for every emergency and fixed
limitation; and last, the objective of emergency action must
rules for applying it.89
be the defense of the constitutional order.”97
Machiavelli—in contrast to Locke, Rosseau and Mill—sought to
Clinton L. Rossiter, after surveying the history of the employment
incorporate into the constitution a regularized system of standby
of emergency powers in Great Britain, France, Weimar, Germany
emergency powers to be invoked with suitable checks and controls
and the United States, reverted to a description of a scheme of
in time of national danger. He attempted forthrightly to meet the
“constitutional dictatorship” as solution to the vexing problems
problem of combining a capacious reserve of power and speed and
presented by emergency. 98 Like Watkins and Friedrich, he stated a
vigor in its application in time of emergency, with effective
priori the conditions of success of the “constitutional dictatorship,”
constitutional restraints.90
thus:
Contemporary political theorists, addressing themselves to the
1) No general regime or particular institution of constitutional
problem of response to emergency by constitutional democracies,
dictatorship should be initiated unless it is necessary or even
have employed the doctrine of constitutional
dictatorship.91 Frederick M. Watkins saw “no reason why
indispensable to the preservation of the State and its constitutional termination of an emergency, and he places great faith in the
order… effectiveness of congressional investigating committees.100

2) …the decision to institute a constitutional dictatorship should Scott and Cotter, in analyzing the above contemporary theories in
never be in the hands of the man or men who will constitute the light of recent experience, were one in saying that, “the
dictator… suggestion that democracies surrender the control of
government to an authoritarian ruler in time of grave
3) No government should initiate a constitutional dictatorship danger to the nation is not based upon sound constitutional
without making specific provisions for its termination… theory.” To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder
4) …all uses of emergency powers and all readjustments in the realistic analysis. It matters not whether the term “dictator” is used
organization of the government should be effected in pursuit of in its normal sense (as applied to authoritarian rulers) or is
constitutional or legal requirements… employed to embrace all chief executives administering emergency
powers. However used, “constitutional dictatorship” cannot be
divorced from the implication of suspension of the processes of
5) … no dictatorial institution should be adopted, no right invaded,
constitutionalism. Thus, they favored instead the “concept of
no regular procedure altered any more than is absolutely necessary
constitutionalism” articulated by Charles H. McIlwain:
for the conquest of the particular crisis . . .

A concept of constitutionalism which is less misleading in the

6) The measures adopted in the prosecution of the a constitutional
analysis of problems of emergency powers, and which is consistent
dictatorship should never be permanent in character or effect…
with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some
7) The dictatorship should be carried on by persons representative indeterminate limitations upon the substantive powers of
of every part of the citizenry interested in the defense of the government, full emphasis is placed upon procedural limitations,
existing constitutional order. . . and political responsibility. McIlwain clearly recognized the need
to repose adequate power in government. And in discussing the
8.) Ultimate responsibility should be maintained for every action meaning of constitutionalism, he insisted that the historical and
taken under a constitutional dictatorship. . . proper test of constitutionalism was the existence of
adequate processes for keeping government responsible. He
9) The decision to terminate a constitutional dictatorship, like the refused to equate constitutionalism with the enfeebling of
decision to institute one should never be in the hands of the man government by an exaggerated emphasis upon separation of
or men who constitute the dictator. . . powers and substantive limitations on governmental power. He
found that the really effective checks on despotism have consisted
10) No constitutional dictatorship should extend beyond the not in the weakening of government but, but rather in the limiting
termination of the crisis for which it was instituted… of it; between which there is a great and very significant
difference. In associating constitutionalism with “limited” as
11) …the termination of the crisis must be followed by a complete distinguished from “weak” government, McIlwain meant
return as possible to the political and governmental conditions government limited to the orderly procedure of law as
existing prior to the initiation of the constitutional dictatorship… 99 opposed to the processes of force. The two fundamental
correlative elements of constitutionalism for which all lovers
Rossiter accorded to legislature a far greater role in the oversight of liberty must yet fight are the legal limits to arbitrary
exercise of emergency powers than did Watkins. He would secure power and a complete political responsibility of government
to Congress final responsibility for declaring the existence or to the governed.101
In the final analysis, the various approaches to emergency of the A plain reading of PP 1017 shows that it is not primarily directed to
above political theorists—from Lock’s “theory of prerogative,” to speech or even speech-related conduct. It is actually a call upon
Watkins’ doctrine of “constitutional dictatorship” and, eventually, to the AFP to prevent or suppress all forms
McIlwain’s “principle of constitutionalism”—ultimately aim to solve of lawlessviolence. In United States v. Salerno,104 the US
one real problem in emergency governance, i.e., that of allotting Supreme Court held that “we have not recognized an
increasing areas of discretionary power to the Chief ‘overbreadth’ doctrine outside the limited context of the
Executive, while insuring that such powers will be exercised First Amendment” (freedom of speech).
with a sense of political responsibility and under effective
limitations and checks. Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that “reflects legitimate state interest in
Our Constitution has fairly coped with this problem. Fresh from the maintaining comprehensive control over harmful, constitutionally
fetters of a repressive regime, the 1986 Constitutional unprotected conduct.” Undoubtedly, lawless violence, insurrection
Commission, in drafting the 1987 Constitution, endeavored to and rebellion are considered “harmful” and “constitutionally
create a government in the concept of Justice Jackson’s “balanced unprotected conduct.” In Broadrick v. Oklahoma,105 it was held:
power structure.”102 Executive, legislative, and judicial powers are
dispersed to the President, the Congress, and the Supreme Court, It remains a ‘matter of no little difficulty’ to determine when a law
respectively. Each is supreme within its own sphere. But none has may properly be held void on its face and when ‘such summary
the monopoly of power in times of emergency. Each branch action’ is inappropriate. But the plain import of our cases is, at
is given a role to serve as limitation or check upon the the very least, that facial overbreadth adjudication is an
other. This system does not weaken the President, it exception to our traditional rules of practice and that its
just limits his power, using the language of McIlwain. In other function, a limited one at the outset, attenuates as the
words, in times of emergency, our Constitution reasonably otherwise unprotected behavior that it forbids the State to
demands that we repose a certain amount of faith in the basic sanction moves from ‘pure speech’ toward conduct and that
integrity and wisdom of the Chief Executive but, at the same conduct—even if expressive—falls within the scope of
time, it obliges him to operate within carefully prescribed otherwise valid criminal laws that reflect legitimate state
procedural limitations. interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct.
a. “Facial Challenge”
Thus, claims of facial overbreadth are entertained in cases
Petitioners contend that PP 1017 is void on its face because of its involving statutes which, by their terms, seek to regulate only
“overbreadth.” They claim that its enforcement encroached on both “spoken words” and again, that “overbreadth claims, if
unprotected and protected rights under Section 4, Article III of the entertained at all, have been curtailed when invoked against
Constitution and sent a “chilling effect” to the citizens. ordinary criminal laws that are sought to be applied to
protected conduct.”106 Here, the incontrovertible fact remains
A facial review of PP 1017, using the overbreadth doctrine, is that PP 1017 pertains to a spectrum of conduct, not free speech,
uncalled for. which is manifestly subject to state regulation.

First and foremost, the overbreadth doctrine is an analytical tool Second, facial invalidation of laws is considered as “manifestly
developed for testing “on their faces” statutes in free speech strong medicine,” to be used “sparingly and only as a last
cases, also known under the American Law as First Amendment resort,” and is “generally disfavored;”107 The reason for this is
cases.103 obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be
applied will not be heard to challenge a law on the ground that it
may conceivably be applied unconstitutionally to others, i.e., in unsatisfactory for deciding constitutional questions, whichever
other situations not before the Court.108 A writer and scholar in way they might be decided.
Constitutional Law explains further:
And third, a facial challenge on the ground of overbreadth is the
The most distinctive feature of the overbreadth technique is most difficult challenge to mount successfully, since the challenger
that it marks an exception to some of the usual rules of must establish that there can be no instance when the
constitutional litigation. Ordinarily, a particular litigant assailed law may be valid. Here, petitioners did not even
claims that a statute is unconstitutional as applied to him or attempt to show whether this situation exists.
her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its Petitioners likewise seek a facial review of PP 1017 on the ground
improper applications on a case to case basis. Moreover, of vagueness. This, too, is unwarranted.
challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In Related to the “overbreadth” doctrine is the “void for vagueness
overbreadth analysis, those rules give way; challenges are doctrine” which holds that “a law is facially invalid if men of
permitted to raise the rights of third parties; and the court common intelligence must necessarily guess at its meaning
invalidates the entire statute “on its face,” not merely “as applied and differ as to its application.“110 It is subject to the same
for” so that the overbroad law becomes unenforceable until a principles governing overbreadth doctrine. For one, it is also an
properly authorized court construes it more narrowly. The factor analytical tool for testing “on their faces” statutes in free speech
that motivates courts to depart from the normal adjudicatory rules cases. And like overbreadth, it is said that a litigant may challenge
is the concern with the “chilling;” deterrent effect of the overbroad a statute on its face only if it is vague in all its possible
statute on third parties not courageous enough to bring suit. The applications. Again, petitioners did not even attempt to
Court assumes that an overbroad law’s “very existence may cause show that PP 1017 is vague in all its application. They also
others not before the court to refrain from constitutionally failed to establish that men of common intelligence cannot
protected speech or expression.” An overbreadth ruling is designed understand the meaning and application of PP 1017.
to remove that deterrent effect on the speech of those third
parties.
b. Constitutional Basis of PP 1017

In other words, a facial challenge using the overbreadth doctrine

Now on the constitutional foundation of PP 1017.
will require the Court to examine PP 1017 and pinpoint its flaws
and defects, not on the basis of its actual operation to petitioners,
but on the assumption or prediction that its very existence may The operative portion of PP 1017 may be divided into three
cause others not before the Court to refrain from important provisions, thus:
constitutionally protected speech or expression. In Younger v.
Harris,109 it was held that: First provision:

[T]he task of analyzing a proposed statute, pinpointing its “by virtue of the power vested upon me by Section 18, Artilce VII
deficiencies, and requiring correction of these deficiencies before … do hereby command the Armed Forces of the Philippines, to
the statute is put into effect, is rarely if ever an appropriate task maintain law and order throughout the Philippines, prevent or
for the judiciary. The combination of the relative remoteness of suppress all forms of lawless violence as well any act of
the controversy, the impact on the legislative process of the insurrection or rebellion”
relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed Second provision:
statutes,…ordinarily results in a kind of case that is wholly
“and to enforce obedience to all the laws and to all decrees, orders the writ or the extension thereof, and must promulgate its decision
and regulations promulgated by me personally or upon my thereon within thirty days from its filing.
direction;”
A state of martial law does not suspend the operation of the
Third provision: Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
“as provided in Section 17, Article XII of the Constitution do hereby on military courts and agencies over civilians where civil courts are
declare a State of National Emergency.” able to function, nor automatically suspend the privilege of the
writ.
First Provision: Calling-out Power
The suspension of the privilege of the writ shall apply only to
The first provision pertains to the President’s calling-out power. persons judicially charged for rebellion or offenses inherent in or
In Sanlakas v. Executive Secretary,111 this Court, through Mr. directly connected with invasion.
Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows: During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
Sec. 18. The President shall be the Commander-in-Chief of all otherwise he shall be released.
armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or grants the President, as Commander-in-Chief, a “sequence” of
suppress lawless violence, invasion or rebellion. In case of graduated powers. From the most to the least benign, these are:
invasion or rebellion, when the public safety requires it, he may, the calling-out power, the power to suspend the privilege of the
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law.
writ of habeas corpus or place the Philippines or any part thereof Citing Integrated Bar of the Philippines v. Zamora,112 the Court
under martial law. Within forty-eight hours from the proclamation ruled that the only criterion for the exercise of the calling-out
of martial law or the suspension of the privilege of the writ power is that “whenever it becomes necessary,” the President
of habeas corpus, the President shall submit a report in person or may call the armed forces “to prevent or suppress lawless
in writing to the Congress. The Congress, voting jointly, by a vote violence, invasion or rebellion.” Are these conditions present in
of at least a majority of all its Members in regular or special the instant cases? As stated earlier, considering the circumstances
session, may revoke such proclamation or suspension, which then prevailing, President Arroyo found it necessary to issue PP
revocation shall not be set aside by the President. Upon the 1017. Owing to her Office’s vast intelligence network, she is in the
initiative of the President, the Congress may, in the same manner, best position to determine the actual condition of the country.
extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall Under the calling-out power, the President may summon the armed
persist and public safety requires it. forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that
The Congress, if not in session, shall within twenty-four hours goes beyond the President’s calling-out power is considered illegal
following such proclamation or suspension, convene in accordance or ultra vires. For this reason, a President must be careful in the
with its rules without need of a call. exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our
The Supreme Court may review, in an appropriate proceeding filed Constitution, the greater the power, the greater are the limitations.
by any citizen, the sufficiency of the factual bases of the
proclamation of martial law or the suspension of the privilege of It is pertinent to state, however, that there is a distinction between
the President’s authority to declare a “state of rebellion”
(in Sanlakas) and the authority to proclaim a state of national constitutional law, said that of the three powers of the President as
emergency. While President Arroyo’s authority to declare a “state Commander-in-Chief, the power to declare Martial Law poses the
of rebellion” emanates from her powers as Chief Executive, the most severe threat to civil liberties. It is a strong medicine which
statutory authority cited in Sanlakas was Section 4, Chapter 2, should not be resorted to lightly. It cannot be used to stifle or
Book II of the Revised Administrative Code of 1987, which persecute critics of the government. It is placed in the keeping of
provides: the President for the purpose of enabling him to secure the people
from harm and to restore order so that they can enjoy their
SEC. 4. – Proclamations. – Acts of the President fixing a date or individual freedoms. In fact, Section 18, Art. VII, provides:
declaring a status or condition of public moment or interest, upon
the existence of which the operation of a specific law or regulation A state of martial law does not suspend the operation of the
is made to depend, shall be promulgated in proclamations which Constitution, nor supplant the functioning of the civil courts or
shall have the force of an executive order. legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are
President Arroyo’s declaration of a “state of rebellion” was merely able to function, nor automatically suspend the privilege of the
an act declaring a status or condition of public moment or interest, writ.
a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal Justice Mendoza also stated that PP 1017 is not a declaration of
significance, and deemed not written. In these cases, PP 1017 is Martial Law. It is no more than a call by the President to the armed
more than that. In declaring a state of national emergency, forces to prevent or suppress lawless violence. As such, it cannot
President Arroyo did not only rely on Section 18, Article VII of the be used to justify acts that only under a valid declaration of Martial
Constitution, a provision calling on the AFP to prevent or suppress Law can be done. Its use for any other purpose is a perversion of
lawless violence, invasion or rebellion. She also relied on Section its nature and scope, and any act done contrary to its command
17, Article XII, a provision on the State’s extraordinary power to is ultra vires.
take over privately-owned public utility and business affected with
public interest. Indeed, PP 1017 calls for the exercise of Justice Mendoza further stated that specifically, (a) arrests and
an awesome power. Obviously, such Proclamation cannot be seizures without judicial warrants; (b) ban on public assemblies;
deemed harmless, without legal significance, or not written, as in (c) take-over of news media and agencies and press censorship;
the case of Sanlakas. and (d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where
Some of the petitioners vehemently maintain that PP 1017 is there is a valid declaration of Martial Law or suspension of the writ
actually a declaration of Martial Law. It is no so. What defines the of habeas corpus.
character of PP 1017 are its wordings. It is plain therein that what
the President invoked was her calling-out power. Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President
The declaration of Martial Law is a “warn[ing] to citizens that the Arroyo’s calling-out power for the armed forces to assist her in
military power has been called upon by the executive to assist in preventing or suppressing lawless violence.
the maintenance of law and order, and that, while the emergency
lasts, they must, upon pain of arrest and punishment, not commit Second Provision: “Take Care” Power
any acts which will in any way render more difficult the restoration
of order and the enforcement of law.”113 The second provision pertains to the power of the President to
ensure that the laws be faithfully executed. This is based on
In his “Statement before the Senate Committee on Justice” on Section 17, Article VII which reads:
March 13, 2006, Mr. Justice Vicente V. Mendoza, 114 an authority in
SEC. 17. The President shall have control of all the executive We all know that it was PP 1081 which granted President Marcos
departments, bureaus, and offices. He shall ensure that the legislative power. Its enabling clause states: “to enforce
laws be faithfully executed. obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my
As the Executive in whom the executive power is vested, 115 the direction.” Upon the other hand, the enabling clause of PP 1017
primary function of the President is to enforce the laws as well as issued by President Arroyo is: to enforce obedience to all the
to formulate policies to be embodied in existing laws. He sees to it laws and to all decrees, orders and regulations promulgated
that all laws are enforced by the officials and employees of his by me personally or upon my direction.”
department. Before assuming office, he is required to take an oath
or affirmation to the effect that as President of the Philippines, he Is it within the domain of President Arroyo to promulgate
will, among others, “execute its laws.” 116 In the exercise of such “decrees“?
function, the President, if needed, may employ the powers
attached to his office as the Commander-in-Chief of all the armed PP 1017 states in part: “to enforce obedience to all the laws
forces of the country, 117 including the Philippine National and decrees x x x promulgated by me personally or upon my
Police118 under the Department of Interior and Local Government.119 direction.“

Petitioners, especially Representatives Francis Joseph G. Escudero, The President is granted an Ordinance Power under Chapter 2,
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Book III of Executive Order No. 292 (Administrative Code of 1987).
Josel Virador argue that PP 1017 is unconstitutional as it arrogated She may issue any of the following:
upon President Arroyo the power to enact laws and decrees in
violation of Section 1, Article VI of the Constitution, which vests the Sec. 2. Executive Orders. — Acts of the President providing for
power to enact laws in Congress. They assail the clause “to rules of a general or permanent character in implementation or
enforce obedience to all the laws and to all decrees, orders execution of constitutional or statutory powers shall be
and regulations promulgated by me personally or upon my promulgated in executive orders.
direction.”
Sec. 3. Administrative Orders. — Acts of the President which relate
Petitioners’ contention is understandable. A reading of PP 1017 to particular aspect of governmental operations in pursuance of his
operative clause shows that it was lifted 120 from Former President duties as administrative head shall be promulgated in
Marcos’ Proclamation No. 1081, which partly reads: administrative orders.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Sec. 4. Proclamations. — Acts of the President fixing a date or
Philippines by virtue of the powers vested upon me by Article VII, declaring a status or condition of public moment or interest, upon
Section 10, Paragraph (2) of the Constitution, do hereby place the the existence of which the operation of a specific law or regulation
entire Philippines as defined in Article 1, Section 1 of the is made to depend, shall be promulgated in proclamations which
Constitution under martial law and, in my capacity as their shall have the force of an executive order.
Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the
Sec. 5. Memorandum Orders. — Acts of the President on matters of
Philippines, prevent or suppress all forms of lawless
administrative detail or of subordinate or temporary interest which
violence as well as any act of insurrection or rebellion and
only concern a particular officer or office of the Government shall
to enforce obedience to all the laws and decrees, orders and
be embodied in memorandum orders.
regulations promulgated by me personally or upon my
direction.
Sec. 6. Memorandum Circulars. — Acts of the President on matters
relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies, x x x and to enforce obedience to all the laws and to all decrees,
bureaus or offices of the Government, for information or orders, and regulations promulgated by me personally or upon my
compliance, shall be embodied in memorandum circulars. direction; and as provided in Section 17, Article XII of the
Constitution do hereby declare a state of national
Sec. 7. General or Special Orders. — Acts and commands of the emergency.
President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines shall be issued as general or special The import of this provision is that President Arroyo, during the
orders. state of national emergency under PP 1017, can call the military
not only to enforce obedience “to all the laws and to all decrees x x
President Arroyo’s ordinance power is limited to the foregoing x” but also to act pursuant to the provision of Section 17, Article
issuances. She cannot issue decrees similar to those issued by XII which reads:
Former President Marcos under PP 1081. Presidential Decrees are
laws which are of the same category and binding force as statutes Sec. 17. In times of national emergency, when the public interest
because they were issued by the President in the exercise of his so requires, the State may, during the emergency and under
legislative power during the period of Martial Law under the 1973 reasonable terms prescribed by it, temporarily take over or direct
Constitution.121 the operation of any privately-owned public utility or business
affected with public interest.
This Court rules that the assailed PP 1017 is
unconstitutional insofar as it grants President Arroyo the What could be the reason of President Arroyo in invoking the above
authority to promulgate “decrees.” Legislative power is provision when she issued PP 1017?
peculiarly within the province of the Legislature. Section 1, Article
VI categorically states that “[t]he legislative power shall be The answer is simple. During the existence of the state of national
vested in the Congress of the Philippines which shall consist emergency, PP 1017 purports to grant the President, without any
of a Senate and a House of Representatives.” To be sure, authority or delegation from Congress, to take over or direct the
neither Martial Law nor a state of rebellion nor a state of operation of any privately-owned public utility or business affected
emergency can justify President Arroyo’s exercise of legislative with public interest.
power by issuing decrees.
This provision was first introduced in the 1973 Constitution, as a
Can President Arroyo enforce obedience to all decrees and laws product of the “martial law” thinking of the 1971 Constitutional
through the military? Convention.122 In effect at the time of its approval was President
Marcos’ Letter of Instruction No. 2 dated September 22, 1972
As this Court stated earlier, President Arroyo has no authority to instructing the Secretary of National Defense to take over “the
enact decrees. It follows that these decrees are void and, management, control and operation of the Manila Electric
therefore, cannot be enforced. With respect to “laws,” she cannot Company, the Philippine Long Distance Telephone Company, the
call the military to enforce or implement certain laws, such as National Waterworks and Sewerage Authority, the Philippine
customs laws, laws governing family and property relations, laws National Railways, the Philippine Air Lines, Air Manila (and)
on obligations and contracts and the like. She can only order the Filipinas Orient Airways . . . for the successful prosecution by the
military, under PP 1017, to enforce laws pertinent to its duty to Government of its effort to contain, solve and end the present
suppress lawless violence. national emergency.“

Third Provision: Power to Take Over Petitioners, particularly the members of the House of
Representatives, claim that President Arroyo’s inclusion of Section
The pertinent provision of PP 1017 states:
17, Article XII in PP 1017 is an encroachment on the legislature’s Courts have often said that constitutional provisions in pari
emergency powers. materia are to be construed together. Otherwise stated, different
clauses, sections, and provisions of a constitution which relate to
This is an area that needs delineation. the same subject matter will be construed together and considered
in the light of each other.123 Considering thatSection 17 of Article
A distinction must be drawn between the President’s authority XII and Section 23 of Article VI, previously quoted, relate to
to declare “a state of national emergency” and national emergencies, they must be read together to determine the
to exercise emergency powers. To the first, as elucidated by the limitation of the exercise of emergency powers.
Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be raised. But to Generally, Congress is the repository of emergency powers.
the second, manifold constitutional issues arise. This is evident in the tenor of Section 23 (2), Article VI authorizing
it to delegate such powers to the President. Certainly, a body
Section 23, Article VI of the Constitution reads: cannot delegate a power not reposed upon it. However,
knowing that during grave emergencies, it may not be possible or
practicable for Congress to meet and exercise its powers, the
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses
Framers of our Constitution deemed it wise to allow Congress to
in joint session assembled, voting separately, shall have the sole
grant emergency powers to the President, subject to certain
power to declare the existence of a state of war.
conditions, thus:
(2) In times of war or other national emergency, the Congress
(1) There must be a war or other emergency.
may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. (2) The delegation must be for a limited period only.
Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof. (3) The delegation must be subject to such restrictions as the
Congress may prescribe.
It may be pointed out that the second paragraph of the above
provision refers not only to war but also to “other national (4) The emergency powers must be exercised to carry out a
emergency.” If the intention of the Framers of our Constitution national policy declared by Congress.124
was to withhold from the President the authority to declare a “state
of national emergency” pursuant to Section 18, Article VII (calling- Section 17, Article XII must be understood as an aspect of the
out power) and grant it to Congress (like the declaration of the emergency powers clause. The taking over of private business
existence of a state of war), then the Framers could have provided affected with public interest is just another facet of the emergency
so. Clearly, they did not intend that Congress should first authorize powers generally reposed upon Congress. Thus, when Section 17
the President before he can declare a “state of national states that the “the State may, during the emergency and
emergency.” The logical conclusion then is that President Arroyo under reasonable terms prescribed by it, temporarily take
could validly declare the existence of a state of national emergency over or direct the operation of any privately owned public
even in the absence of a Congressional enactment. utility or business affected with public interest,” it refers to
Congress, not the President. Now, whether or not the President
But the exercise of emergency powers, such as the taking over of may exercise such power is dependent on whether Congress may
privately owned public utility or business affected with public delegate it to him pursuant to a law prescribing the reasonable
interest, is a different matter. This requires a delegation from terms thereof. Youngstown Sheet & Tube Co. et al. v.
Congress. Sawyer,125 held:
It is clear that if the President had authority to issue the order he Emergency, as a generic term, connotes the existence of conditions
did, it must be found in some provision of the Constitution. And it suddenly intensifying the degree of existing danger to life or well-
is not claimed that express constitutional language grants this being beyond that which is accepted as normal. Implicit in this
power to the President. The contention is that presidential power definitions are the elements of intensity, variety, and
should be implied from the aggregate of his powers under the perception.127 Emergencies, as perceived by legislature or
Constitution. Particular reliance is placed on provisions in Article II executive in the United Sates since 1933, have been occasioned by
which say that “The executive Power shall be vested in a a wide range of situations, classifiable under three (3) principal
President . . . .;” that “he shall take Care that the Laws be heads: a)economic,128b)natural disaster,129 and c)national
130
faithfully executed;” and that he “shall be Commander-in-Chief of security.
the Army and Navy of the United States.
“Emergency,” as contemplated in our Constitution, is of the same
The order cannot properly be sustained as an exercise of the breadth. It may include rebellion, economic crisis, pestilence or
President’s military power as Commander-in-Chief of the Armed epidemic, typhoon, flood, or other similar catastrophe of
Forces. The Government attempts to do so by citing a number of nationwide proportions or effect.131 This is evident in the Records of
cases upholding broad powers in military commanders engaged in the Constitutional Commission, thus:
day-to-day fighting in a theater of war. Such cases need not
concern us here. Even though “theater of war” be an MR. GASCON. Yes. What is the Committee’s definition of “national
expanding concept, we cannot with faithfulness to our emergency” which appears in Section 13, page 5? It reads:
constitutional system hold that the Commander-in-Chief of
the Armed Forces has the ultimate power as such to take When the common good so requires, the State may temporarily
possession of private property in order to keep labor take over or direct the operation of any privately owned public
disputes from stopping production. This is a job for the utility or business affected with public interest.
nation’s lawmakers, not for its military authorities.
MR. VILLEGAS. What I mean is threat from external aggression,
Nor can the seizure order be sustained because of the for example, calamities or natural disasters.
several constitutional provisions that grant executive power
to the President. In the framework of our Constitution, the
MR. GASCON. There is a question by Commissioner de los Reyes.
President’s power to see that the laws are faithfully
What about strikes and riots?
executed refutes the idea that he is to be a lawmaker.The
Constitution limits his functions in the lawmaking process to
the recommending of laws he thinks wise and the vetoing of MR. VILLEGAS. Strikes, no; those would not be covered by the
laws he thinks bad. And the Constitution is neither silent nor term “national emergency.”
equivocal about who shall make laws which the President is
to execute. The first section of the first article says that “All MR. BENGZON. Unless they are of such proportions such that they
legislative Powers herein granted shall be vested in a would paralyze government service.132
Congress of the United States. . .”126
xxxxxx
Petitioner Cacho-Olivares, et al. contends that the term
“emergency” under Section 17, Article XII refers to “tsunami,” MR. TINGSON. May I ask the committee if “national emergency”
“typhoon,” “hurricane” and “similar occurrences.”This is a refers to military national emergency or could this
limited view of “emergency.” be economic emergency?”
MR. VILLEGAS. Yes, it could refer to both military or economic owned public utility or business affected with public interest
dislocations. without authority from Congress.

MR. TINGSON. Thank you very much.133 Let it be emphasized that while the President alone can declare a
state of national emergency, however, without legislation, he has
It may be argued that when there is national emergency, Congress no power to take over privately-owned public utility or business
may not be able to convene and, therefore, unable to delegate to affected with public interest. The President cannot decide whether
the President the power to take over privately-owned public utility exceptional circumstances exist warranting the take over of
or business affected with public interest. privately-owned public utility or business affected with public
interest. Nor can he determine when such exceptional
In Araneta v. Dinglasan,134 this Court emphasized that legislative circumstances have ceased. Likewise, without legislation, the
power, through which extraordinary measures are exercised, President has no power to point out the types of businesses
remains in Congress even in times of crisis. affected with public interest that should be taken over. In short,
the President has no absolute authority to exercise all the powers
of the State under Section 17, Article VII in the absence of an
“x x x
emergency powers act passed by Congress.
After all the criticisms that have been made against the efficiency
c. “AS APPLIED CHALLENGE”
of the system of the separation of powers, the fact remains that
the Constitution has set up this form of government, with all its
defects and shortcomings, in preference to the commingling of One of the misfortunes of an emergency, particularly, that which
powers in one man or group of men. The Filipino people by pertains to security, is that military necessity and the guaranteed
adopting parliamentary government have given notice that they rights of the individual are often not compatible. Our history
share the faith of other democracy-loving peoples in this system, reveals that in the crucible of conflict, many rights are curtailed
with all its faults, as the ideal. The point is, under this framework and trampled upon. Here, the right against unreasonable
of government, legislation is preserved for Congress all the time, search and seizure; the right against warrantless
not excepting periods of crisis no matter how serious. Never in the arrest; and the freedom of speech, of expression, of the
history of the United States, the basic features of whose press, and of assembly under the Bill of Rights suffered the
Constitution have been copied in ours, have specific functions of greatest blow.
the legislative branch of enacting laws been surrendered to another
department—unless we regard as legislating the carrying out of a Of the seven (7) petitions, three (3) indicate “direct injury.”
legislative policy according to prescribed standards; no, not even
when that Republic was fighting a total war, or when it was In G.R. No. 171396, petitioners David and Llamas alleged that, on
engaged in a life-and-death struggle to preserve the Union. The February 24, 2006, they were arrested without warrants on their
truth is that under our concept of constitutional government, in way to EDSA to celebrate the 20th Anniversary of People Power
times of extreme perils more than in normal circumstances ‘the I. The arresting officers cited PP 1017 as basis of the arrest.
various branches, executive, legislative, and judicial,’ given the
ability to act, are called upon ‘to perform the duties and discharge In G.R. No. 171409, petitioners Cacho-Olivares
the responsibilities committed to them respectively.” and Tribune Publishing Co., Inc. claimed that on February 25,
2006, the CIDG operatives “raided and ransacked without warrant”
Following our interpretation of Section 17, Article XII, invoked by their office. Three policemen were assigned to guard their office as
President Arroyo in issuing PP 1017, this Court rules that such a possible “source of destabilization.” Again, the basis was PP
Proclamation does not authorize her during the emergency to 1017.
temporarily take over or direct the operation of any privately
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et Forces of the Philippines.” They are internal rules issued by the
al. alleged that their members were “turned away and dispersed” executive officer to his subordinates precisely for
when they went to EDSA and later, to Ayala Avenue, to celebrate the proper and efficient administration of law. Such rules and
the 20th Anniversary of People Power I. regulations create no relation except between the official who
issues them and the official who receives them. 139 They are based
A perusal of the “direct injuries” allegedly suffered by the said on and are the product of, a relationship in which power is their
petitioners shows that they resulted from the implementation, source, and obedience, their object. 140 For these reasons, one
pursuant to G.O. No. 5, of PP 1017. requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5
on the basis of these illegal acts? In general, does the illegal G.O. No. 5 mandates the AFP and the PNP to immediately carry out
implementation of a law render it unconstitutional? the “necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.”
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and Unlike the term “lawless violence” which is unarguably extant in
misabused135 and may afford an opportunity for abuse in the our statutes and the Constitution, and which is invariably
manner of application.136 The validity of a statute or ordinance is associated with “invasion, insurrection or rebellion,” the phrase
to be determined from its general purpose and its efficiency to “acts of terrorism” is still an amorphous and vague concept.
accomplish the end desired, not from its effects in a particular Congress has yet to enact a law defining and punishing acts of
case.137 PP 1017 is merely an invocation of the President’s calling- terrorism.
out power. Its general purpose is to command the AFP to suppress
all forms of lawless violence, invasion or rebellion. It had In fact, this “definitional predicament” or the “absence of an agreed
accomplished the end desired which prompted President Arroyo to definition of terrorism” confronts not only our country, but the
issue PP 1021. But there is nothing in PP 1017 allowing the police, international community as well. The following observations are
expressly or impliedly, to conduct illegal arrest, search or violate quite apropos:
the citizens’ constitutional rights.
In the actual unipolar context of international relations, the “fight
Now, may this Court adjudge a law or ordinance unconstitutional against terrorism” has become one of the basic slogans when it
on the ground that its implementor committed illegal acts? The comes to the justification of the use of force against certain states
answer is no. The criterion by which the validity of the statute or and against groups operating internationally. Lists of states
ordinance is to be measured is the essential basis for the exercise “sponsoring terrorism” and of terrorist organizations are set up and
of power, and not a mere incidental result arising from its constantly being updated according to criteria that are not always
exertion.138 This is logical. Just imagine the absurdity of situations known to the public, but are clearly determined by strategic
when laws maybe declared unconstitutional just because the interests.
officers implementing them have acted arbitrarily. If this were so,
judging from the blunders committed by policemen in the cases The basic problem underlying all these military actions—or threats
passed upon by the Court, majority of the provisions of the Revised of the use of force as the most recent by the United States against
Penal Code would have been declared unconstitutional a long time Iraq—consists in the absence of an agreed definition of terrorism.
ago.
Remarkable confusion persists in regard to the legal categorization
President Arroyo issued G.O. No. 5 to carry into effect the of acts of violence either by states, by armed groups such as
provisions of PP 1017. General orders are “acts and commands of liberation movements, or by individuals.
the President in his capacity as Commander-in-Chief of the Armed
The dilemma can by summarized in the saying “One country’s How, then, can those contradicting definitions and conflicting
terrorist is another country’s freedom fighter.” The apparent perceptions and evaluations of one and the same group and its
contradiction or lack of consistency in the use of the term actions be explained? In our analysis, the basic reason for these
“terrorism” may further be demonstrated by the historical fact that striking inconsistencies lies in the divergent interest of states.
leaders of national liberation movements such as Nelson Mandela Depending on whether a state is in the position of an occupying
in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in power or in that of a rival, or adversary, of an occupying power in
Algeria, to mention only a few, were originally labeled as terrorists a given territory, the definition of terrorism will “fluctuate”
by those who controlled the territory at the time, but later became accordingly. A state may eventually see itself as protector of the
internationally respected statesmen. rights of a certain ethnic group outside its territory and will
therefore speak of a “liberation struggle,” not of “terrorism” when
What, then, is the defining criterion for terrorist acts— acts of violence by this group are concerned, and vice-versa.
the differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense? The United Nations Organization has been unable to reach a
decision on the definition of terrorism exactly because of these
Since the times of the Cold War the United Nations Organization conflicting interests of sovereign states that determine in each and
has been trying in vain to reach a consensus on the basic issue of every instance how a particular armed movement (i.e. a non-state
definition. The organization has intensified its efforts recently, but actor) is labeled in regard to the terrorists-freedom fighter
has been unable to bridge the gap between those who associate dichotomy. A “policy of double standards” on this vital issue of
“terrorism” with any violent act by non-state groups against international affairs has been the unavoidable consequence.
civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate This “definitional predicament” of an organization consisting of
use of force when resistance against foreign occupation or against sovereign states—and not of peoples, in spite of the emphasis in
systematic oppression of ethnic and/or religious groups within a the Preamble to the United Nations Charter!—has become even
state is concerned. more serious in the present global power constellation: one
superpower exercises the decisive role in the Security Council,
The dilemma facing the international community can best be former great powers of the Cold War era as well as medium powers
illustrated by reference to the contradicting categorization of are increasingly being marginalized; and the problem has become
organizations and movements such as Palestine Liberation even more acute since the terrorist attacks of 11 September 2001 I
Organization (PLO)—which is a terrorist group for Israel and a the United States.141
liberation movement for Arabs and Muslims—the Kashmiri
resistance groups—who are terrorists in the perception of India, The absence of a law defining “acts of terrorism” may result in
liberation fighters in that of Pakistan—the earlier Contras in abuse and oppression on the part of the police or military. An
Nicaragua—freedom fighters for the United States, terrorists for illustration is when a group of persons are merely engaged in a
the Socialist camp—or, most drastically, the Afghani Mujahedeen drinking spree. Yet the military or the police may consider the act
(later to become the Taliban movement): during the Cold War as an act of terrorism and immediately arrest them pursuant to
period they were a group of freedom fighters for the West, G.O. No. 5. Obviously, this is abuse and oppression on their part. It
nurtured by the United States, and a terrorist gang for the Soviet must be remembered that an act can only be considered a crime if
Union. One could go on and on in enumerating examples of there is a law defining the same as such and imposing the
conflicting categorizations that cannot be reconciled in any way— corresponding penalty thereon.
because of opposing political interests that are at the roots of those
perceptions. So far, the word “terrorism” appears only once in our criminal laws,
i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President
Marcos during the Martial Law regime. This decree is entitled
“Codifying The Various Laws on Anti-Subversion and Increasing search warrant or warrant of arrest. Thus, the fundamental
The Penalties for Membership in Subversive Organizations.” The protection given by this provision is that between person and police
word “terrorism” is mentioned in the following provision: “That one must stand the protective authority of a magistrate clothed with
who conspires with any other person for the purpose of power to issue or refuse to issue search warrants or warrants of
overthrowing the Government of the Philippines x x x by force, arrest.143
violence, terrorism, x x x shall be punished by reclusion
temporal x x x.” In the Brief Account144 submitted by petitioner David, certain facts
are established: first, he was arrested without warrant; second, the
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the PNP operatives arrested him on the basis of PP 1017; third, he was
Communist Party of the Philippines) enacted by President Corazon brought at Camp Karingal, Quezon City where he was
Aquino on May 5, 1985. These two (2) laws, however, do not fingerprinted, photographed and booked like a criminal
define “acts of terrorism.” Since there is no law defining “acts of suspect; fourth,he was treated brusquely by policemen who “held
terrorism,” it is President Arroyo alone, under G.O. No. 5, who has his head and tried to push him” inside an unmarked car; fifth, he
the discretion to determine what acts constitute terrorism. Her was charged with Violation of Batas Pambansa Bilang No.
judgment on this aspect is absolute, without restrictions. 880145 and Inciting to Sedition; sixth, he was detained for seven
Consequently, there can be indiscriminate arrest without warrants, (7) hours; and seventh,he was eventually released for insufficiency
breaking into offices and residences, taking over the media of evidence.
enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be Section 5, Rule 113 of the Revised Rules on Criminal Procedure
effected in the name of G.O. No. 5. These acts go far beyond the provides:
calling-out power of the President. Certainly, they violate the due
process clause of the Constitution. Thus, this Court declares that Sec. 5. Arrest without warrant; when lawful. – A peace officer
the “acts of terrorism” portion of G.O. No. 5 is unconstitutional. or a private person may, without a warrant, arrest a person:

Significantly, there is nothing in G.O. No. 5 authorizing the military (a) When, in his presence, the person to be arrested has
or police to commit acts beyond what are necessary and committed, is actually committing, or is attempting to commit an
appropriate to suppress and prevent lawless violence, the offense.
limitation of their authority in pursuing the Order. Otherwise, such
acts are considered illegal.
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
We first examine G.R. No. 171396(David et al.) circumstances that the person to be arrested has committed it; and

The Constitution provides that “the right of the people to be x x x.

secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for any
Neither of the two (2) exceptions mentioned above justifies
purpose shall be inviolable, and no search warrant or warrant of
petitioner David’s warrantless arrest. During the inquest for the
arrest shall issue except upon probable cause to be determined
charges of inciting to seditionand violation of BP 880, all that
personally by the judge after examination under oath or affirmation
the arresting officers could invoke was their observation that some
of the complainant and the witnesses he may produce, and
rallyists were wearing t-shirts with the invective “Oust Gloria
particularly describing the place to be searched and the persons or
Now” and their erroneous assumption that petitioner David was the
things to be seized.” 142 The plain import of the language of the
leader of the rally.146 Consequently, the Inquest Prosecutor ordered
Constitution is that searches, seizures and arrests
his immediate release on the ground of insufficiency of evidence.
are normally unreasonable unless authorized by a validly issued
He noted that petitioner David was not wearing the subject t-shirt
and even if he was wearing it, such fact is insufficient to charge Peaceable assembly for lawful discussion cannot be made a crime.
him with inciting to sedition. Further, he also stated that there is The holding of meetings for peaceable political action cannot be
insufficient evidence for the charge of violation of BP 880 as it proscribed. Those who assist in the conduct of such meetings
was not even known whether petitioner David was the leader of the cannot be branded as criminals on that score. The question, if the
rally.147 rights of free speech and peaceful assembly are not to be
preserved, is not as to the auspices under which the meeting was
But what made it doubly worse for petitioners David et al. is that held but as to its purpose; not as to the relations of the speakers,
not only was their right against warrantless arrest violated, but but whether their utterances transcend the bounds of the freedom
also their right to peaceably assemble. of speech which the Constitution protects. If the persons
assembling have committed crimes elsewhere, if they have formed
Section 4 of Article III guarantees: or are engaged in a conspiracy against the public peace and order,
they may be prosecuted for their conspiracy or other violations of
valid laws. But it is a different matter when the State, instead
No law shall be passed abridging the freedom of speech, of
of prosecuting them for such offenses, seizes upon mere
expression, or of the press, or the right of the people peaceably to
participation in a peaceable assembly and a lawful public
assemble and petition the government for redress of grievances.
discussion as the basis for a criminal charge.
“Assembly” means a right on the part of the citizens to meet
On the basis of the above principles, the Court likewise considers
peaceably for consultation in respect to public affairs. It is a
the dispersal and arrest of the members of KMU et al. (G.R. No.
necessary consequence of our republican institution and
171483) unwarranted. Apparently, their dispersal was done merely
complements the right of speech. As in the case of freedom of
on the basis of Malacañang’s directive canceling all permits
expression, this right is not to be limited, much less denied, except
previously issued by local government units. This is arbitrary. The
on a showing of a clear and present danger of a substantive evil
wholesale cancellation of all permits to rally is a blatant disregard
that Congress has a right to prevent. In other words, like other
of the principle that “freedom of assembly is not to be limited,
rights embraced in the freedom of expression, the right to
much less denied, except on a showing of a clear and
assemble is not subject to previous restraint or censorship. It may
present danger of a substantive evil that the State has a
not be conditioned upon the prior issuance of a permit or
right to prevent.”149 Tolerance is the rule and limitation is the
authorization from the government authorities except, of course, if
exception. Only upon a showing that an assembly presents a clear
the assembly is intended to be held in a public place, a permit for
and present danger that the State may deny the citizens’ right to
the use of such place, and not for the assembly itself, may be
exercise it. Indeed, respondents failed to show or convince the
validly required.
Court that the rallyists committed acts amounting to lawless
violence, invasion or rebellion. With the blanket revocation of
The ringing truth here is that petitioner David, et al. were arrested permits, the distinction between protected and unprotected
while they were exercising their right to peaceful assembly. They assemblies was eliminated.
were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that
Moreover, under BP 880, the authority to regulate assemblies and
right. As can be gleaned from circumstances, the charges
rallies is lodged with the local government units. They have the
of inciting to sedition and violation of BP 880 were mere
power to issue permits and to revoke such permits after due
afterthought. Even the Solicitor General, during the oral argument,
notice and hearing on the determination of the presence of clear
failed to justify the arresting officers’ conduct. In De Jonge v.
and present danger. Here, petitioners were not even notified and
Oregon,148 it was held that peaceable assembly cannot be made a
heard on the revocation of their permits. 150 The first time they
crime, thus:
learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a person’s right is restricted by
government action, it behooves a democratic government to see to
it that the restriction is fair, reasonable, and according to that the warrant must direct that it be served in the daytime,
procedure. unless the property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that it be
G.R. No. 171409,(Cacho-Olivares, et al.) presents another facet served at any time of the day or night. All these rules were violated
of freedom of speech i.e., the freedom of the press. Petitioners’ by the CIDG operatives.
narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were Not only that, the search violated petitioners’ freedom of the press.
searched without warrant;second, the police operatives seized The best gauge of a free and democratic society rests in the degree
several materials for publication; third, the search was conducted of freedom enjoyed by its media. In the Burgos v. Chief of
at about 1:00 o’ clock in the morning of February 25, Staff152 this Court held that—
2006; fourth, the search was conducted in the absence of any
official of the Daily Tribune except the security guard of the As heretofore stated, the premises searched were the business and
building; and fifth, policemen stationed themselves at the vicinity printing offices of the “Metropolitan Mail” and the “We Forum”
of the Daily Tribune offices. newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result
Thereafter, a wave of warning came from government officials. that the printing and publication of said newspapers were
Presidential Chief of Staff Michael Defensor was quoted as saying discontinued.
that such raid was “meant to show a ‘strong presence,’ to tell
media outlets not to connive or do anything that would help Such closure is in the nature of previous restraint or
the rebels in bringing down this government.” Director censorship abhorrent to the freedom of the press
General Lomibao further stated that “if they do not follow the guaranteed under the fundamental law, and constitutes a
standards—and the standards are if they would contribute virtual denial of petitioners’ freedom to express themselves
to instability in the government, or if they do not subscribe in print. This state of being is patently anathematic to a
to what is in General Order No. 5 and Proc. No. 1017—we democratic framework where a free, alert and even militant
will recommend a ‘takeover.’” National Telecommunications press is essential for the political enlightenment and growth
Commissioner Ronald Solis urged television and radio networks of the citizenry.
to “cooperate“ with the government for the duration of the state
of national emergency. He warned that his agency will not While admittedly, the Daily Tribune was not padlocked and sealed
hesitate to recommend the closure of any broadcast outfit like the “Metropolitan Mail” and “We Forum” newspapers in the
that violates rules set out for media coverage during times above case, yet it cannot be denied that the CIDG operatives
when the national security is threatened.151 exceeded their enforcement duties. The search and seizure of
materials for publication, the stationing of policemen in the vicinity
The search is illegal. Rule 126 of The Revised Rules on Criminal of the The Daily Tribune offices, and the arrogant warning of
Procedure lays down the steps in the conduct of search and government officials to media, are plain censorship. It is that
seizure. Section 4 requires that a search warrant be issued upon officious functionary of the repressive government who tells the
probable cause in connection with one specific offence to be citizen that he may speak only if allowed to do so, and no more
determined personally by the judge after examination under oath and no less than what he is permitted to say on pain of punishment
or affirmation of the complainant and the witnesses he may should he be so rash as to disobey. 153 Undoubtedly, the The Daily
produce. Section 8 mandates that the search of a house, room, or Tribune was subjected to these arbitrary intrusions because of its
any other premise be made in the presence of the lawful anti-government sentiments. This Court cannot tolerate the blatant
occupant thereof or any member of his family or in the absence of disregard of a constitutional right even if it involves the most
the latter, in the presence of two (2) witnesses of sufficient age defiant of our citizens. Freedom to comment on public affairs is
and discretion residing in the same locality. And Section 9 states essential to the vitality of a representative democracy. It is the
duty of the courts to be watchful for the constitutional rights of the SOLGEN BENIPAYO:
citizen, and against any stealthy encroachments thereon. The
motto should always be obsta principiis.154 It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect
Incidentally, during the oral arguments, the Solicitor General and gather clippings from Daily Tribune or any other newspaper.
admitted that the search of the Tribune’s offices and the seizure of
its materials for publication and other papers are illegal; and that SR. ASSO. JUSTICE PUNO:
the same are inadmissible “for any purpose,” thus:
Is it based on any law?
JUSTICE CALLEJO:
SOLGEN BENIPAYO:
You made quite a mouthful of admission when you said that the
policemen, when inspected the Tribune for the purpose of As far as I know, no, Your Honor, from the facts, no.
gathering evidence and you admitted that the policemen were able
to get the clippings. Is that not in admission of the admissibility of
SR. ASSO. JUSTICE PUNO:
these clippings that were taken from the Tribune?
So, it has no basis, no legal basis whatsoever?
SOLICITOR GENERAL BENIPAYO:
SOLGEN BENIPAYO:
Under the law they would seem to be, if they were illegally seized,
I think and I know, Your Honor, and these are inadmissible for any
purpose.155 Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if
it is premature to say this, we do not condone this. If the
people who have been injured by this would want to sue
xxxxxxxxx
them, they can sue and there are remedies for this.156

SR. ASSO. JUSTICE PUNO:

Likewise, the warrantless arrests and seizures executed by the
police were, according to the Solicitor General, illegal and cannot
These have been published in the past issues of the Daily Tribune; be condoned, thus:
all you have to do is to get those past issues. So why do you have
to go there at 1 o’clock in the morning and without any search
CHIEF JUSTICE PANGANIBAN:
warrant? Did they become suddenly part of the evidence of
rebellion or inciting to sedition or what?
There seems to be some confusions if not contradiction in your
theory.
SOLGEN BENIPAYO:
SOLICITOR GENERAL BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my
instructions.
I don’t know whether this will clarify. The acts, the supposed illegal
or unlawful acts committed on the occasion of 1017, as I said, it
SR. ASSO. JUSTICE PUNO:
cannot be condoned. You cannot blame the President for, as you
said, a misapplication of the law. These are acts of the police
Are you saying that the act of the policeman is illegal, it is not officers, that is their responsibility.157
based on any law, and it is not based on Proclamation 1017.
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are Section 17, Article XII of the Constitution, the President, in the
constitutional in every aspect and “should result in no absence of a legislation, cannot take over privately-owned public
constitutional or statutory breaches if applied according to their utility and private business affected with public interest.
letter.”
In the same vein, the Court finds G.O. No. 5 valid. It is an Order
The Court has passed upon the constitutionality of these issuances. issued by the President—acting as Commander-in-Chief—
Its ratiocination has been exhaustively presented. At this point, addressed to subalterns in the AFP to carry out the provisions of PP
suffice it to reiterate that PP 1017 is limited to the calling out by 1017. Significantly, it also provides a valid standard—that the
the President of the military to prevent or suppress lawless military and the police should take only the “necessary and
violence, invasion or rebellion. When in implementing its appropriate actions and measures to suppress and prevent
provisions, pursuant to G.O. No. 5, the military and the police acts of lawless violence.”But the words “acts of terrorism”
committed acts which violate the citizens’ rights under the found in G.O. No. 5 have not been legally defined and made
Constitution, this Court has to declare such acts unconstitutional punishable by Congress and should thus be deemed deleted from
and illegal. the said G.O. While “terrorism” has been denounced generally in
media, no law has been enacted to guide the military, and
In this connection, Chief Justice Artemio V. Panganiban’s eventually the courts, to determine the limits of the AFP’s authority
concurring opinion, attached hereto, is considered an integral part in carrying out this portion of G.O. No. 5.
of this ponencia.
On the basis of the relevant and uncontested facts narrated earlier,
SUMMATION it is also pristine clear that (1) the warrantless arrest of petitioners
Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies
In sum, the lifting of PP 1017 through the issuance of PP 1021—a and warrantless arrest of the KMU and NAFLU-KMU members; (3)
supervening event—would have normally rendered this case moot the imposition of standards on media or any prior restraint on the
and academic. However, while PP 1017 was still operative, illegal press; and (4) the warrantless search of the Tribune offices and
acts were committed allegedly in pursuance thereof. Besides, there the whimsical seizures of some articles for publication and other
is no guarantee that PP 1017, or one similar to it, may not again be materials, are not authorized by the Constitution, the law and
issued. Already, there have been media reports on April 30, 2006 jurisprudence. Not even by the valid provisions of PP 1017 and
that allegedly PP 1017 would be reimposed “if the May 1 rallies” G.O. No. 5.
become “unruly and violent.” Consequently, the transcendental
issues raised by the parties should not be “evaded;” they must now Other than this declaration of invalidity, this Court cannot impose
be resolved to prevent future constitutional aberration. any civil, criminal or administrative sanctions on the individual
police officers concerned. They have not been individually identified
The Court finds and so holds that PP 1017 is constitutional insofar and given their day in court. The civil complaints or causes of
as it constitutes a call by the President for the AFP to prevent or action and/or relevant criminal Informations have not been
suppress lawless violence. The proclamation is sustained by presented before this Court. Elementary due process bars this
Section 18, Article VII of the Constitution and the relevant Court from making any specific pronouncement of civil, criminal or
jurisprudence discussed earlier. However, PP 1017’s extraneous administrative liabilities.
provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all It is well to remember that military power is a means to an
laws even those not related to lawless violence as well as decrees end and substantive civil rights are ends in themselves. How
promulgated by the President; and (3) to impose standards on to give the military the power it needs to protect the
media or any form of prior restraint on the press, are ultra Republic without unnecessarily trampling individual rights is
vires and unconstitutional. The Court also rules that under one of the eternal balancing tasks of a democratic
state.During emergency, governmental action may vary in breadth No costs.
and intensity from normal times, yet they should not be arbitrary
as to unduly restrain our people’s liberty. SO ORDERED.

Perhaps, the vital lesson that we must learn from the theorists who ANGELINA SANDOVAL-GUTIERREZ
studied the various competing political philosophies is that, it is Associate Justice
possible to grant government the authority to cope with crises
without surrendering the two vital principles of WE CONCUR:
constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the
ARTEMIO V. PANGANIBAN
governed.158
Chief Justice

WHEREFORE, the Petitions are partly granted. The Court rules

(On leave) LEONARDO A.
that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call
REYNATO S. PUNO QUISUMBING
by President Gloria Macapagal-Arroyo on the AFP to prevent or
Associate Justice Asscociate Justice
suppress lawless violence. However, the provisions of PP 1017
CONSUELO YNARES-
commanding the AFP to enforce laws not related to lawless ANTONIO T. CARPIO
SANTIAGO
violence, as well as decrees promulgated by the President, are Asscociate Justice
Associate Justice
declared UNCONSTITUTIONAL. In addition, the provision in PP
MA. ALICIA AUSTRIA-
1017 declaring national emergency under Section 17, Article VII of RENATO C. CORONA
MARTINEZ
the Constitution is CONSTITUTIONAL, but such declaration does Asscociate Justice
Associate Justice
not authorize the President to take over privately-owned public
CONCHITA CARPIO
utility or business affected with public interest without prior ROMEO J. CALLEJO, SR.
MORALES
legislation. Asscociate Justice
Associate Justice
ADOLFO S. AZCUNA DANTE O. TINGA
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by Associate Justice Asscociate Justice
which the AFP and the PNP should implement PP 1017, i.e. MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
whatever is “necessary and appropriate actions and measures Associate Justice Asscociate Justice
to suppress and prevent acts of lawless
violence.“ Considering that “acts of terrorism” have not yet been
PRESBITERO J. VELASCO, JR.
defined and made punishable by the Legislature, such portion of
Associate Justice
G.O. No. 5 is declared UNCONSTITUTIONAL.

CERTIFICATION
The warrantless arrest of Randolf S. David and Ronald Llamas; the
dispersal and warrantless arrest of the KMU and NAFLU-KMU
members during their rallies, in the absence of proof that these Pursuant to Section 13, Article VIII of the Constitution, it is hereby
petitioners were committing acts constituting lawless violence, certified that the conclusions in the above Decision were reached in
invasion or rebellion and violating BP 880; the imposition of consultation before the case was assigned to the writer of the
standards on media or any form of prior restraint on the press, as opinion of the Court.
well as the warrantless search of the Tribune offices and whimsical
seizure of its articles for publication and other materials, are ARTEMIO V. PANGANIBAN
declared UNCONSTITUTIONAL. Chief Justice
 16
Notes:  No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal
1
Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. protection of the laws.
Clark – Lecturer,Volume XIX, 1971, p. 29.
17
 The right of the people to be secure in their persons, houses,
2
 Chief Justice Artemio V. Panganiban, Liberty and Prosperity, papers, and effects against unreasonable searches and seizures of
February 15, 2006. whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon
3
 Articulated in the writings of the Greek philosopher, Heraclitus of probable cause to be determined personally by the judge after
Ephesus, 540-480 B.C., who propounded universal impermanence examination under oath or affirmation of the complainant and the
and that all things, notably opposites are interrelated. witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
4
 Respondents’ Comment dated March 6, 2006. 18
 No law shall be passed abridging the freedom of speech, of
5 expression, or of the press, or the right of the people peaceably to
Ibid.
assemble and petition the Government for redress of grievances.
6
Ibid. 19
 (1) The Congress, by a vote of two-thirds of both Houses in joint
7
session assembled, voting separately, shall have the sole power to
 Minutes of the Intelligence Report and Security Group, Philippine declare the existence of a state of war.
Army, Annex “I” of Respondents’ Consolidated Comment.

8
(2) In times of war or other national emergency, the Congress
 Respondents’ Consolidated Comment. may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers
9
Ibid. necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the Congress, such
10
Ibid. powers shall cease upon the next adjournment thereof.

11
 Petition in G.R. No. 171396, p. 5. 20
 In times of national emergency, when the public interest so
requires, the State may, during the emergency and under
12
 Police action in various parts of Metro Manila and the reactions of reasonable terms prescribed by it, temporarily take over or direct
the huge crowds being dispersed were broadcast as “breaking the operation of any privately owned public utility or business
news” by the major television stations of this country. affected with public interest.

21
13
 Petition in G.R. No. 171400, p. 11.  1 Cranch 137 [1803].

22
14
Ibid.  Howard L. MacBain, “Some Aspects of Judicial Review,”Bacon
Lectures on the Constitution of the United States (Boston: Boston
15
 The prime duty of the Government is to serve and protect the University Heffernan Press, 1939), pp. 376-77.
people. The Government may call upon the people to defend the
23
State and, in the fulfillment thereof, all citizens may be required,  The Court has no self-starting capacity and must await the action
under conditions provided by law, to render personal military or of some litigant so aggrieved as to have a justiciable case. (Shapiro
civil service.
 38
and Tresolini, American Constitutional Law, Sixth Edition, 1983, p. Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
79).
39
 275 Ky 91, 120 SW2d 765 (1938).
24
 Cruz, Philippine Political Law, 2002 Ed., p. 259.
40
 19 Wend. 56 (1837).
25
Ibid.
41
 232 NC 48, 59 SE2d 359 (1950).
26
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004,
429 SCRA 736. 42
 302 U.S. 633.

27
Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. 43
 318 U.S. 446.
No. 132795, March 10, 2004, 425 SCRA 129; Vda. De Dabao v.
Court of Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91; 44
 65 Phil. 56 (1937).
and Paloma v. Court of Appeals, G.R. No. 145431, November 11,
2003, 415 SCRA 590. 45
 G.R. No. 117, November 7, 1945 (Unreported).
28
Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 46
 G.R. No. 2947, January 11, 1959 (Unreported).
103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v.
Court of Appeals, supra. 47
 110 Phil. 331 (1960).
29
Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756. 48
 77 Phil. 1012 (1947).
30
 Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. 49
Shelby, 118 U.S. 425.  84 Phil. 368 (1949) The Court held: “Above all, the
transcendental importance to the public of these cases demands
31 that they be settled promptly and definitely, brushing aside, if we
Province of Batangas v. Romulo, supra.
must, technicalities of procedure.”
32
Lacson v. Perez, supra. 50
 L-No. 40004, January 31, 1975, 62 SCRA 275.
33
Province of Batangas v. Romulo, supra. 51
 Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA
34
27, where the Court held that where the question is one of public
Albaña v. Commission on Elections, G.R. No. 163302, July 23, duty and the enforcement of a public right, the people are the real
2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July party in interest, and it is sufficient that the petitioner is a citizen
2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. interested in the execution of the law;
159085, February 3, 2004, 421 SCRA 656.

35
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29,
Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 1987, 150 SCRA 530, where the Court held that in cases involving
134 SCRA 438. an assertion of a public right, the requirement of personal interest
is satisfied by the mere fact that the petitioner is a citizen and part
36
 G.R. No. 159085, February 3, 2004, 421 SCRA 656. of the general public which possesses the right.

37
 Black’s Law Dictionary, 6th Ed. 1991, p. 941.
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, voters affected by the apportionment, necessitates the brushing
Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371, where aside of the procedural requirement of locus standi.
the Court held that objections to taxpayers’ lack of personality to
sue may be disregarded in determining the validity of the VAT law; 52
 G.R. No. 133250, July 9, 2002, 384 SCRA 152.

Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, 53
 G.R. Nos. 138570, 138572, 138587, 138680, 138698, October
where the Court held that while no expenditure of public funds was 10, 2000, 342 SCRA 449.
involved under the questioned contract, nonetheless considering its
important role in the economic development of the country and the 54
 G.R. No. 151445, April 11, 2002, 380 SCRA 739.
magnitude of the financial consideration involved, public interest
was definitely involved and this clothed petitioner with the legal 55
Supra.
personality under the disclosure provision of the Constitution to
question it. 56
 G.R. No. 118910, November 16, 1995, 250 SCRA 130.
Association of Small Landowners in the Philippines, Inc. v. 57
Sec. of Agrarian Reform,G.R. No. 78742, July 14, 1989, 175  G.R. No. 132922, April 21, 1998, 289 SCRA 337.
SCRA 343, where the Court ruled that while petitioners are strictly 58
speaking, not covered by the definition of a “proper party,”  G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357
nonetheless, it has the discretion to waive the requirement, in SCRA 756.
determining the validity of the implementation of the CARP.
59
 G.R. No. 159085, February 3, 2004, 421 SCRA 656.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990,
60
191 SCRA 452, where the Court held that it enjoys the open  235 SCRA 506 (1994).
discretion to entertain taxpayer’s suit or not and that a member of
the Senate has the requisite personality to bring a suit where a 61
Supra.
constitutional issue is raised.
62
Supra.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197
SCRA 771, where the Court held that petitioner as a taxpayer, has 63
 197 SCRA 52, 60 (1991).
the personality to file the instant petition, as the issues involved,
pertains to illegal expenditure of public money; 64
Supra.

Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, 65

 See NAACP v. Alabama, 357 U.S. 449 (1958).
July 30, 1991, 199 SCRA 750, where the Court held that where
serious constitutional questions are involved, the “transcendental 66
 G.R. No. 141284, August 15, 2000, 338 SCRA 81.
importance” to the public of the cases involved demands that they
be settled promptly and definitely, brushing aside technicalities of 67
procedures;  From the deliberations of the Constitutional Commission, the
intent of the framers is clear that the immunity of the President
from suit is concurrent only with his tenure and not his term. (De
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA
Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).
420, where the Court held that the importance of the issues
involved concerning as it does the political exercise of qualified
68
 Section 1, Article XI of the Constitution provides: Public Office is the side of justiciability as enunciated in Lansang, x x x Barredo,
a public trust. Public officers and employees must at all times be however, wanted to have the best of both worlds and opted for the
accountable to the people, serve them with utmost responsibility, view that “political questions are not per se beyond the Court’s
integrity, loyalty and efficiency, act with patriotism and justice, and jurisdiction … but that as a matter of policy implicit in the
lead modest lives. Constitution itself the Court should abstain from interfering with
the Executive’s Proclamation.” (Bernas, The 1987 Constitution of
69
Ibid., Sec. 2. the Republic of the Philippines: A Commentary, 1996 Edition, p.
794.)
70
 No. 2908, September 30, 2005, 471 SCRA 87.
79
 See Separate Opinion of J. Puno in Integrated Bar of the
71
 91 Phil. 882 (1952). Philippines v. Zamora, supra.

80
72
 No. L-33964, December 11, 1971, 42 SCRA 448. Supra.

81
73
 No. L-35546, September 17, 1974, 59 SCRA 183. Cruz, Philippine Political Law, 2002 Ed., p. 247.

82
74
 No. L-61388, April 20, 1983, 121 SCRA 472. Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998,
298 SCRA 756.
75
Tañada v. Cuenco, 103 Phil. 1051 (1957). 83
Supra, 481-482.
76
Lansang v. Garcia, supra, pp. 473 and 481. 84
 Smith and Cotter, Powers of the President during Crises, 1972,
77 p. 6.
Supra.
85
78 Ibid.
 “Five Justices—Antonio, Makasiar, Esguerra, Fernandez, and
Aquino—took the position that the proclamation of martial law and 86
the arrest and detention orders accompanying the proclamation The Social Contract (New York: Dutton, 1950), pp. 123-124.
posed a “political question” beyond the jurisdiction of the Court.
87
Justice Antonio, in a separate opinion concurred in by Makasiar,  Smith and Cotter, Powers of the President during Crises, 1972,
Fernandez, and Aquino, argued that the Constitution had pp. 6-7.
deliberately set up a strong presidency and had concentrated
88
powers in times of emergency in the hands of the President and Representative Government, New York, Dutton, 1950, pp. 274,
had given him broad authority and discretion which the Court was 277-78.
bound to respect. He made reference to the decision in Lansang v.
Garcia but read it as in effect upholding the “political question” 89
The Discourses, Bk. 1, Ch. XXXIV.
position. Fernandez, in a separate opinion, also argued Lansang,
even understood as giving a narrow scope of review authority to 90
 Smith and Cotter, Powers of the President During Crises, 1972.
the Court, affirmed the impossible task of ‘checking’ the action p. 8.
taken by the President. Hence, he advocated a return to Barcelon
v. Baker. Similarly, Esguerra advocated the abandonment 91
Ibid.
of Lansang and a return to Barcelon. And, although Justices Castro,
Fernando, Muñoz- Palma, and, implicitly, Teehankee, lined up on 92
 See The Problem of Constitutional Dictatorship, p. 328.
93 109
Ibid., p. 353.  401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States
v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees,
94
Ibid., pp. 338-341. State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).

110
95
 Smith and Cotter, Powers of the President During Crises, 1972, Ermita-Malate Hotel and Motel Operators Association v. City
p. 9. Mayor, No. L-24693, July 31, 1967, 20 SCRA 849 (1967).

111
96
Constitutional Government and Democracy, Ch. XXVI, rev. ed.,  G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this
Boston: Ginn & Co., 1949, p. 580. Court sustained President Arroyo’s declaration of a “state of
rebellion” pursuant to her calling-out power.
97
Ibid, pp. 574-584.
112
Supra.
98
Smith and Cotter, Powers of the President During Crises, 1972, p.
113
10. Westel Willoughby, Constitutional Law of the United States 1591
[2d Ed. 1929, quoted in Aquino v. Ponce Enrile, 59 SCRA 183
99
Rossiter, Constitutional Dictatorship,Princeton: Princeton (1974), (Fernando, J., concurring)].
University Press, 1948, pp. 298-306.
114
 Retired Associate Justice of the Supreme Court.
100
Smith and Cotter, Powers of the President During Crises, 1972,
115
p. 11.  Section 1, Article VII of the Constitution.

116
101
 Smith and Cotter, Powers of the President During Crises, 1972,  Section 5, Article VII of the Constitution.
p. 12.
117
 Section 18, Article VII of the Constitution.
102
 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72
118
Sup. Ct. 863; 96 L. Ed. 1153 (1952), See Concurring Opinion J.  Section 6, Article XVI of the Constitution.
Jackson.
119
 See Republic Act No. 6975.
103
 See Concurring Opinion of Justice Mendoza in Estrada v.
Sandiganbayan, G.R. No. 148560, November 19, 2001, 369 SCRA 120
 Ironically, even the 7th Whereas Clause of PP 1017 which states
393. that “Article 2, Section 4 of our Constitution makes the
defense and preservation of the democratic institutions and
104
 481 U.S. 739, 95 L. Ed. 2d 697 (1987). the State the primary duty of Government” replicates more closely
Section 2, Article 2 of the 1973 Constitution than Section 4, Article
105
Supra. 2 of the 1987 Constitution which provides that, “[t[he prime duty
of the Government is to serve and protect the people.”
106
 See Concurring Opinion of Justice Mendoza in Estrada v.
121
Sandiganbayan, supra.  Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1,
citing Legaspi v. Ministry of Finance, 115 SCRA 418
107
Broadrick v. Oklahoma, 413 U.S. 601 (1973). (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v.
Commission on Election, supra.
108
Ibid.
122
 Section 17, Article XIV of the 1973 Constitution reads: “In times the President certain powers in time of “public peril or disaster.”
of national emergency when the public interest so requires, the The other statutes provide for existing or anticipated emergencies
State may temporarily take over or direct the operation of any attributable to earthquake, flood, tornado, cyclone, hurricane,
privately owned public utility or business affected with public conflagration an landslides.[129] There is also a Joint Resolution of
interest.” April 1937. It made “funds available for the control of incipient or
emergency outbreaks of insect pests or plant diseases, including
123
 Antieau, Constitutional Construction, 1982, p.21. grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315,
July 1, 1952, Sec. 2 [a]) Supra.
124
 Cruz, Philippine Political Law, 1998, p. 94.
130
 National Security may be cataloged under the heads
125
 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952). of (1) Neutrality, (2) Defense, (3) Civil Defense,
and (4) Hostilities or War. (p. 22) The FederalCivil Defense Act of
126 1950 contemplated an attack or series of attacks by an enemy of
 Tresolini, American Constitutional Law, 1959, Power of the
the United States which conceivably would cause substantial
President, pp. 255-257.
damage or injury to civilian property or persons in the United
127
States by any one of several means; sabotage, the use of bombs,
 Smith and Cotter, Powers of the President During Crises, 1972, shellfire, or atomic, radiological, chemical, bacteriological means or
p. 14 other weapons or processes. Such an occurrence would cause a
“National Emergency for Civil Defense Purposes,” or “a state of civil
128
 The Federal Emergency Relief Act of 1933 opened with a defense emergency,” during the term which the Civil Defense
declaration that the economic depression created a serious Administrator would have recourse to extraordinary powers
emergency, due to wide-spread unemployment and the inadequacy outlined in the Act. The New York-New Jersey Civil Defense
of State and local relief funds, . . . making it imperative that the Compact supplies an illustration in this context for emergency
Federal Government cooperate more effectively with the several cooperation. “Emergency” as used in this compact shall mean and
States and Territories and the District of Columbia in furnishing include invasion, or other hostile
relief to their needy and distressed people. President Roosevelt in action, disaster, insurrection or imminent danger thereof.
declaring a bank holiday a few days after taking office in 1933 ( Id., p.15-16)
proclaimed that “heavy and unwarranted withdrawals of gold and
currency from … banking institutions for the purpose of hoarding; 131
Cruz, Philippine Political Law, 1998, p. 95.
… resulting in “sever drains on the Nation’s stocks of gold … have
created a national emergency,” requiring his action. Enacted within 132
 Record of the Constitutional Commission, Vol. III, pp. 266-267.
months after Japan’s attack on Pearl Harbor, the Emergency Price
Control Act of 1942 was designed to prevent economic 133
dislocations from endangering the national defense and security  Record of the Constitutional Convention, pp. 648-649.
and the effective prosecution of the war. (Smith and
134
Cotter, Powers of the President During Crises, 1972, p.18)  84 Phil. 368 (1949).

135
129
 The Emergency Appropriation Act for Fiscal 1935 appropriated Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
fund to meet the emergency and necessity for relief in stricken
136
agricultural areas and in another section referred to “the present Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346,
drought emergency.”[129] The India Emergency Food Aid Act of 282 P 1, 70 ALR 1261, cert den 280 US 610, 74 L ed 653, 50 S Ct
1951 provided for emergency shipments of food to India to meet 158.
famine conditions then ravaging the great Asian sub-continent.
The Communication Act of 1934 and its 1951 amendment grant
137 150
Sanitation Dist. V. Campbell (Ky),249 SW 2d 767; Rochester v. Section 5.Application requirements – All applications for a
Gutberlett, 211 NY 309, 105 NE 548. permit shall comply with the following guidelines:

138
Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 xxxxxx
S Ct 370.
(c) If the mayor is of the view that there is imminent and grave
139
 De Leon and De Leon Jr., Administrative Law, Text and Cases, danger of a substantive evil warranting
2001 Ed., p. 115. the denial or modification of the permit, he shall immediately
inform the applicant who must be heard on the matter.
140
Ibid.
151
 Petition in G.R. No. 171400, p. 11.
141
 In a Lecture delivered on March 12, 2002 as part of the
152
Supreme Court Centenary Lecture Series, Hans Koechler, Professor  No. L-64161, December 26, 1984, 133 SCRA 816.
of Philosophy at the University of Innsbruck (Austria) and President
of the International Progress Organization, speaking on “The 153
 Dissenting Opinion, J. Cruz, National Press Club v. Commission
United Nations, The International Rule of Law and Terrorism” cited on Elections, G.R. Nos. 102653, 102925 & 102983, March 5, 1992,
in the Dissenting Opinion of Justice Kapunan in Lim v. Executive 207 SCRA 1.
Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739.
154
Boyd v. United States, 116 U.S. 616 (1886).
142
 Section 2, Article III of the 1987 Constitution.
155
 Transcript of Stenographic Notes, Oral Arguments, March 7,
143
 Bernas, The 1987 Constitution of the Republic of the Philippines, 2006, p. 470.
A Reviewer-Primer, p. 51.
156
Ibid., pp. 432-433.
144
 Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-
273. 157
Ibid, pp. 507-508.
145
 An Act Ensuring the Free Exercise by the People of their Right 158
 Smith and Cotter, Powers of the President During Crisis, 1972,
Peaceably to Assemble and Petition the Government for Other p. 146.
Purposes.

146
——————————————————————————————————
 Annex “A” of the Memorandum in G.R. No. 171396, pp. 271- ————–
273.

147
EN BANC
Ibid.

148
G.R. No. 171396 – DAVID et al. v. ARROYO, etc., et al. and
 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278. related cases (G.R. Nos. 171409, 171483, 171485, 171400,
171424 and 171489)
149
Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA
553. Promulgated on:

May 3, 2006
 x ————————————————————————— x misadventure and refuses to strike down abuse at its inception.
Worse, our people will surely condemn the misuse of legal hocus
CONCURRING OPINION pocus to justify this trifling with constitutional sanctities.

CJ: And even for those who deeply care for the President, it is timely
and wise for this Court to set down the parameters of power and to
I was hoping until the last moment of our deliberations on these make known, politely but firmly, its dogged determination to
consolidated cases that the Court would be unanimous in its perform its constitutional duty at all times and against all odds.
Decision. After all, during the last two weeks, it decided with one Perhaps this country would never have had to experience the
voice two equally contentious and nationally significant wrenching pain of dictatorship; and a past President would not
controversies involving Executive Order No. 464 1 and the so-called have fallen into the precipice of authoritarianism, if the Supreme
Calibrated Preemptive Response policy.2 Court then had the moral courage to remind him steadfastly of his
mortality and the inevitable historical damnation of despots and
tyrants. Let not this Court fall into that same rut.
However, the distinguished Mr. Justice Dante O. Tinga’s Dissenting
Opinion has made that hope an impossibility. I now write, not only
to express my full concurrence in the thorough and elegantly ARTEMIO V. PANGANIBAN
written ponencia of the esteemed Mme. Justice Angelina Sandoval- Chief Justice
Gutierrez, but more urgently to express a little comment on Justice
Tinga’s Dissenting Opinion (DO). Notes:

1
The Dissent dismisses all the Petitions, grants no reliefs to  Senate v. Ermita, GR No. 169777, April 20, 2006.
petitioners, and finds nothing wrong with PP 1017. It labels the PP
2
a harmless pronouncement—”an utter superfluity”—and denounces  Bayan v. Ermita, GR No. 169838, April 25, 2006.
the ponencia as an “immodest show of brawn” that “has
imprudently placed the Court in the business of defanging paper ——————————————————————————————————
tigers.” ————–

Under this line of thinking, it would be perfectly legal for the G.R. No. 171396 (Prof. Randolf S. David, Lorenzo Tañada III,
President to reissue PP 1017 under its present language and Ronald Llamas, H. Harry L. Roque, Jr., Joel Ruiz Butuyan, Roger R.
nuance. I respectfully disagree. Rayel, Gary S. Mallari, Romel Regalado Bagares, Christopher F.C.
Bolastig, petitioners, v. Gloria Macapagal-Arroyo, as President and
Let us face it. Even Justice Tinga concedes that under PP 1017, the Commander-in-Chief, Executive Secretary Eduardo Ermita, Hon.
police—”to some minds”—”may have flirted with power.” With due Avelino Cruz II, Secretary of National Defense, General Generoso
respect, this is a masterful understatement. PP 1017 may be a Senga, Chief of Staff, Armed Forces of the Philippines, Director
paper tiger, but—to borrow the colorful words of an erstwhile Asian General Arturo Lomibao, Chief, Philippine National Police,
leader—it has nuclear teeth that must indeed be defanged. respondents.)

Some of those who drafted PP 1017 may be testing the outer limits G.R. No. 171409 (Niñez Cacho-Olivares and Tribune Publishing
of presidential prerogatives and the perseverance of this Court in Co., Inc., petitioner, v. Honorable Secretary Eduardo Ermita and
safeguarding the people’s constitutionally enshrined liberty. They Honorable Director General Arturo Lomibao, respondents.)
are playing with fire, and unless prudently restrained, they may
one day wittingly or unwittingly burn down the country. History will G.R. No. 171485 (Francis Joseph G. Escudero, Joseph A.
never forget, much less forgive, this Court if it allows such Santiago, Teodoro A. Casino, Agapito A. Aquino, Mario G. Aguja,
Satur C. Ocampo, Mujiv S. Hataman, Juan Edgardo Angara, Eduardo Ermita, in his capacity as Executive Secretary,
Teofisto DL. Guingona III, Emmanuel Josel J. Villanueva, Liza L. respondents.)
Maza, Imee R. Marcos, Renato B. Magtubo, Justin Marc SB.
Chipeco, Roilo Golez, Darlene Antonio-Custudio, Loretta Ann P. x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
Rosales, Josel G. Virador, Rafael V. Mariano, Gilbert C. Remulla, – – – – – – – – – – – – – – – – -x
Florencio G. Noel, Ana Theresa Hontiveros-Baraquel, Imelda C.
Nicolas, Marvic M.V.F. Leonenen, Neri Javier Colmenares, DISSENTING OPINION
Movement of Concerned Citizens for Civil Liberties, represented by
Amado Gat Inciong, petitioners, v. Eduardo R. Ermita, Executive
TINGA, J:
Secretary, Avelino J. Cruz, Jr., Secretary, DND Ronaldo V. Puno,
Secretary, DILG, Generoso Senga, AFP Chief of Staff, Arturo
Lumibao, Chief PNP, respondents.) I regret to say that the majority, by its ruling today, has
imprudently placed the Court in the business of defanging paper
tigers. The immodest show of brawn unfortunately comes at the
G.R. No. 171483 (Kilusang Mayo Uno, represented by its
expense of an exhibition by the Court of a fundamental but
Chairperson Elmer C. Labog and Secretary General Joel Maglunsod,
sophisticated understanding of the extent and limits of executive
National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-
powers and prerogatives, as well as those assigned to the judicial
KMU), represented by its National President, Joselito v. Ustarez,
branch. I agree with the majority on some points, but I cannot join
Antonio C. Pascual, Salvador t. Carranza, Emilia P. Dapulang,
the majority opinion, as it proceeds to rule on non-justiciable
Martin Custodio, Jr., and Roque M. Tan, petitioners, v. Her
issues based on fears that have not materialized, departing as they
Excellency, President Gloria Macapagal-Arroyo, The Honorable
do from the plain language of the challenged issuances to the
Executive Secretary, Eduardo Ermita, The Chief of Staff, Armed
extent of second-guessing the Chief Executive. I respectfully
Forces of the Philippines, Generoso Senga, and the PNP Director
dissent.
General, Arturo Lomibao, respondents.)
The key perspective from which I view these present petitions is
G.R. No. 171400 (Alternative Law Groups, Inc. v. (ALG),
my own ponencia in Sanlakas v. Executive Secretary,1 which
petitioner, v. Executive Secretary Eduardo L. Ermita. Lt. Gen.
centered on Presidential Proclamation No. 427 (PP 427), declaring
Generoso Senga, and Director General Arturo Lomibao,
a “state of rebellion” in 2003. The Court therein concluded that
respondents.)
while the declaration was constitutional, such declaration should be
regarded as both regarded as “an utter superfluity”, which “only
G.R. No. 171489 (Jose Anselmo I. Cadiz, Feliciano M. Bautista, gives notice to the nation that such a state exists and that the
Romulo R. Rivera, Jose Amor M. Amorado, Alicia A. Risos-Vidal, armed forces may be called to prevent or suppress it”, and “devoid
Felimon C. Abelita III, Manuel P. Legaspi, J.B., Jovy C. Bernabe, of any legal significance”, and “cannot diminish or violate
Bernard L. Dagcuta, Rogelio V. Garcia and Integrated Bar of the constitutionally protected rights.” I submit that the same
Philippines (IBP), petitioners, v. Hon. Executive Secretary Eduardo conclusions should be reached as to Proclamation No. 1017 (PP
Ermita, General Generoso Senga, in his capacity as AFP Chief of 1017). Following the cardinal precept that the acts of the executive
Staff, and Direcotr General Arturo Lomibao, in his capacity as PNP are presumed constitutional is the equally important doctrine that
Chief, respondents.) to warrant unconstitutionality, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and
G.R. No. 171424 (Loren B. Legarda, petitioner, v. Gloria argumentative implication.2 Also well-settled as a rule of
Macapagal-Arroyo, in her capacity as President and Commander-in- construction is that where thee are two possible constructions of
Chief; Arturo Lomibao, in his capacity as Director-General of the law or executive issuance one of which is in harmony with the
Philippine National Police (PNP); Generoso Senga, in his capacity as Constitution, that construction should be preferred. 3 The concerns
Chief of Staff of the Armed Forces of the Philippine (AFP); and
raised by the majority relating to PP 1017 and General Order Nos. moment or interest upon the existence of which the operation of a
5 can be easily disquieted by applying this well-settled principle. specific law or regulation is made to depend”. 12 A proclamation, on
its own, cannot create or suspend any constitutional or statutory
I. rights or obligations. There would be need of a complementing law
or regulation referred to in the proclamation should such act indeed
PP 1017Has No Legal Binding Effect; Creates No Rights and put into operation any law or regulation by fixing a date or
Obligations; and Cannot Be Enforced or Invoked in a Court Of Law declaring a status or condition of a public moment or interest
related to such law or regulation. And should the proclamation
allow the operationalization of such law or regulation, all
First, the fundamentals. The President is the Chief of State and
subsequent resultant acts cannot exceed or supersede the law or
Foreign Relations, the chief of the Executive Branch, 4 and the
regulation that was put into effect.
Commander-in-Chief of the Armed Forces. 5 The Constitution vests
on the President the executive power.6 The President derives these
constitutional mandates from direct election from the people. The Under Section 18, Article VII of the Constitution, among the
President stands as the most recognizable representative symbol of constitutional powers of the President, as Commander-in-Chief, is
government and of the Philippine state, to the extent that foreign to “call out such armed forces to prevent or suppress lawless
leaders who speak with the President do so with the understanding violence, invasion or rebellion”. 13 The existence of invasion or
that they are speaking to the Philippine state. rebellion could allow the President to either suspend the privilege
of the writ of habeas corpus or place the Philippines or any part
thereof under martial law, but there is a fairly elaborate
Yet no matter the powers and prestige of the presidency, there are
constitutional procedure to be observed in such a case, including
significant limitations to the office of the President. The President
congressional affirmation or revocation of such suspension or
does not have the power to make or legislate laws, 7 or disobey
declaration, as well as the availability of judicial review. However,
those laws passed by Congress.8 Neither does the President have
the existence of lawless violence, invasion or rebellion does
to power to create rights and obligations with binding legal effect
not ipso facto cause the “calling out” of the armed forces, the
on the Filipino citizens, except in the context of entering into
suspension of habeas corpus or the declaration of martial law—it
contractual or treaty obligations by virtue of his/her position as the
remains within the discretion of the President to engage in any of
head of State. The Constitution likewise imposes limitations on
these three acts should said conditions arise.
certain powers of the President that are normally inherent in the
office. For example, even though the President is the
administrative head of the Executive Department and maintains Sanlakas involved PP 427, which declared the existence of a “state
executive control thereof,9 the President is precluded from of rebellion.” Such declaration could ostensibly predicate the
arbitrarily terminating the vast majority of employees in the civil suspension of the privilege of the writ of habeas corpus or the
service whose right to security of tenure is guaranteed by the declaration of martial law, but the President did not do so. Instead,
Constitution.10 PP 427, and the accompanying General Order No. 4, invoked the
“calling out” of the Armed Forces to prevent lawless violence,
invasion and rebellion. Appreciably, a state of lawless violence,
The President has inherent powers,11 powers expressly vested by
invasion or rebellion could be variable in scope, magnitude and
the Constitution, and powers expressly conferred by statutes. The
gravity; and Section 18, Article VII allows for the President to
power of the President to make proclamations, while confirmed by
respond with the appropriate measured and proportional response.
statutory grant, is nonetheless rooted in an inherent power of the
presidency and not expressly subjected to constitutional
limitations. But proclamations, as they are, are a species of Indeed, the diminution of any constitutional rights through the
issuances of extremely limited efficacy. As defined in the suspension of the privilege of the writ or the declaration of martial
Administrative Code, proclamations are merely “acts of the law is deemed as “strong medicine” to be used sparingly and only
President fixing a date or declaring a status or condition of public as a last resort, and for as long as only truly necessary. Thus, the
mere invocation of the “calling out” power stands as a balanced carry out the necessary actions Commander-in-Chief, do hereby
means of enabling a heightened alertness in dealing with the and measures to suppress and command the Armed Forces of
armed threat, but without having to suspend any constitutional or quell the rebellion with due the Philippines, to maintain law
statutory rights or cause the creation of any new obligations. For regard to constitutional rights. and order throughout the
the utilization of the “calling out” power alone cannot vest unto the Philippines, prevent or suppress
President any new constitutional or statutory powers, such as the all forms of lawless violence as
enactment of new laws. At most, it can only renew emphasis on well any act of insurrection or
the duty of the President to execute already existing laws without rebellion and to enforce
extending a corresponding mandate to proceed extra- obedience to all the laws and to
constitutionally or extra-legally. Indeed, the “calling out” power all decrees, orders and
does not authorize the President or the members of the Armed regulations promulgated by me
Forces to break the law. personally or upon my direction;
and as provided in Section 17,
These were the premises that ultimately informed the Court’s Article 12 of the Constitution do
decision in Sanlakas, which affirmed the declaration of a “state of hereby declare a State of
rebellion” as within the “calling out” power of the President, but National Emergency.
which emphasized that for legal intents and purposes, it should be
both regarded as “an utter superfluity”, which “only gives notice to Let us begin with the similarities. Both PP 427 and PP 1017 are
the nation that such a state exists and that the armed forces may characterized by two distinct phases. The first is the declaration
be called to prevent or suppress it,” and “devoid of any legal itself of a status or condition, a “state of rebellion” in PP 437, and a
significance,” as it could not “cannot diminish or violate “state of national emergency” under PP 1017. Both “state of
constitutionally protected rights.” The same premises apply as to rebellion” and “state of national emergency” are terms within
PP 1017. constitutional contemplation. Under Section 18, Article VII, the
existence of a “state of rebellion” is sufficient premise for either the
A comparative analysis of PP 427 and PP 1017, particularly their suspension of the privilege of the writ of habeas corpus or the
operative clauses, is in order. declaration of martial law, though in accordance with the strict
guidelines under the same provision. Under Section 17, Article XII,
PP 427 PP 1017 the existence of a state of national emergency is sufficient ground
for the State, during the emergency, under reasonable terms
NOW, THEREFORE, I, GLORIA NOW, THEREFORE, I Gloria prescribed by it, and when the public interest so requires, to
MACAPAGAL-ARROYO, by virtue Macapagal-Arroyo, President of temporarily take over or direct the operation of any privately-
of the powers vested in me by the Republic of the Philippines owned public utility or business affected with public interest. Under
law, hereby confirm the and Commander-in-Chief of the Section 23(2), Article VI, the existence of a state of national
existence of an actual and on- Armed Forces of the Philippines, emergency may also allow Congress to authorize the President, for
going rebellion, compelling me to by virtue of the powers vested a limited period and subject to such restrictions as it may
declare a state of rebellion.In upon me by Section 18, Article 7 prescribe, to exercise powers necessary and proper to carry out a
view of the foregoing, I am of the Philippine Constitution declared national policy.
issuing General Order No. 4 in which states that: “The
accordance with Section 18, President. . . whenever it Certainly, the declaration could stand as the first step towards
Article VII of the Constitution, becomes necessary, . . . may call constitutional authorization for the exercise by the President, the
calling out the Armed Forces of out (the) armed forces to prevent Congress or the State of extraordinary powers and prerogatives.
the Philippines and the Philippine or suppress. . . rebellion. . .,” However, the declaration alone cannot put into operation these
National Police to immediately and in my capacity as their extraordinary powers and prerogatives, as the declaration must be
followed through with a separate act providing for the actual
utilization of such powers. In the case of the “state of rebellion,” case of the power to call out the armed forces. The only criterion is
such act involves the suspension of the writ or declaration of that ‘whenever it becomes necessary’, the President may call the
martial law. In the case of the “state of national emergency,” such armed forces ‘to suppress lawless violence, invasion or
act involves either an order for the takeover or actual takeover by rebellion.”18 The Court concluded that the implication was “that the
the State of public utilities or businesses imbued with public President is given full discretion and wide latitude in the exercise of
interest or the authorization by Congress for the President to the power to call as compared to the two other powers.” 19
exercise emergency powers.
These propositions were affirmed in Sanlakas, wherein the
In PP 427, the declaration of a “state of rebellion” did not lead to invocation of the calling out power was expressly made by
the suspension of the writ or the declaration of martial law. In PP President Arroyo. The Court noted that for the purpose of
1017, the declaration of a “state of national emergency” did not exercising the calling out power, the Constitution did not require
lead to an authorization for the takeover or actual takeover of any the President to make a declaration of a state of rebellion. 20 At the
utility or business, or the grant by Congress to the President of same time, the Court in Sanlakas acknowledged that “the
emergency powers. Instead, both declarations led to the invocation President’s authority to declare a state of rebellion springs in the
of the calling out power of the President under Section 18, Article main from her powers as chief executive and, at the same time,
VII, which the majority correctly characterizes as involving only draws strength from her Commander-in-Chief powers.”21
“ordinary police action.”
For still unclear reasons, the majority attempts to draw a
I agree with the ponencia’s holding that PP 1017 involves the distinction between Sanlakas and the present petitions by that the
exercise by the President of the “calling out” power under Section statutory authority to declare a “state of rebellion” emanates from
18, Article VII. In Integrated Bar v. Zamora,14 the Court was the Administrative Code of 1987, particularly the provision
beseeched upon to review an order of President Estrada authorizing the President to make proclamations. As such, the
commanding the deployment of the Marines in patrols around declaration of a “state of rebellion,” pursuant to statutory
Metro Manila, in view of an increase in crime.15 The Court, speaking authority, “was merely an act declaring a status or condition of
through Justice Santiago Kapunan, affirmed the President’s order, public moment or interest.” The majority grossly misreads
asserting that “it is the unclouded intent of the Constitution to vest Sanlakas, which expressly roots the declaration of a state of
upon the President, as Commander-in-Chief of the Armed Forces, rebellion from the wedded powers of the Chief Executive, under
full discretion to call forth the military when in his judgment it is Section 1, Article VII, and as Commander-in-Chief, under Section
necessary to do so in order to prevent or suppress lawless 18, Article VII.
violence, invasion or rebellion. Unless the petitioner can show that
the exercise of such discretion was gravely abused, the President’s Insofar as PP 1017 is concerned, the calling out power is definitely
exercise of judgment deserves to be accorded respect from this involved, in view of the directive to the Armed Forces of the
Court.”16 Tellingly, the order of deployment by President Estrada Philippines to “suppress all forms of lawless violence”. But there
was affirmed by the Court even though we held the view that the are nuances to the calling out power invoked in PP 1017 which the
power then involved was not the “calling out” power, but “the majority does not discuss. The directive “to suppress all forms of
power involved may be no more than the maintenance of peace lawless violence” is addressed not only to the Armed Forces but to
and order and promotion of the general welfare.” 17 the police as well. The “calling out” of the police does not derive
from Section 17, Article VII, or the commander-in-chief clause, our
It was also maintained in Integrated Bar that while Section 18, national police being civilian in character. Instead, the calling out of
Article VII mandated two conditions—actual rebellion or invasion the police is sourced from the power of the President as Chief
and the requirement of public safety—before the suspension of the Executive under Section 1, Article VII, and the power of executive
privilege of the writ of habeas corpus or the declaration of martial control under Section 18, Article VII. Moreover, while the
law could be declared, “these conditions are not required in the permissible scope of military action is limited to acts in furtherance
of suppressing lawless violence, rebellion, invasion, the police can defined in the article I, Section 1, of the Philippine Constitution
be commanded by the President to execute all laws without of the Constitution under martial which states that: “The
distinction in light of the presidential duty to execute all laws.22 law, and in my capacity as their President. . . whenever it
commander-in-chief, do hereby becomes necessary, . . . may call
Still, insofar as Section 17, Article VII is concerned, wide latitude is command the arned forces of the out (the) armed forces to prevent
accorded to the discretion of the Chief Executive in the exercise of Philippines, to maintain law and or suppress. . . rebellion. . .,”
the “calling out” power due to a recognition that the said power is order throughout the Philippines, and in my capacity as their
of limited import, directed only to the Armed Forces of the prevent or suppress all forms of Commander-in-Chief, do hereby
Philippines, and incapable of imposing any binding legal effect on lawless violence as well as any command the Armed Forces of
the citizens and other branches of the Philippines. Indeed, PP 1017 act of insurrection or rebellion the Philippines, to maintain law
does not purport otherwise. Nothing in its operative provisions and to enforce obedience to all and order throughout the
authorize the President, the Armed Forces of the Philippines, or any the laws and decrees, orders and Philippines, prevent or suppress
officer of the law, to perform any extra-constitutional or extra-legal regulations promulgated by me all forms of lawless violence as
acts. PP 1017 does not dictate the suspension of any of the personally or upon my well any act of insurrection or
people’s guarantees under the Bill of Rights. direction.In addition, I do hereby rebellion and to enforce
order that all persons presently obedience to all the laws and to
If it cannot be made more clear, neither the declaration of a detained, as well as others who all decrees, orders and
state of emergency under PP 1017 nor the invocation of the may hereafter be similarly regulations promulgated by me
calling out power therein authorizes warrantless arrests, detained for the crimes of personally or upon my direction;
searches or seizures; the infringement of the right to free insurrection or rebellion, and all and as provided in Section 17,
expression, peaceable assembly and association and other other crimes and offenses Article 12 of the Constitution do
constitutional or statutory rights. Any public officer who committed in furtherance or on hereby declare a State of
nonetheless engaged or is engaging in such extra- the occasion thereof, or incident National Emergency.
constitutional or extra-legal acts in the name of PP 1017 thereto, or in connection
may be subjected to the appropriate civil, criminal or therewith, for crimes against
administrative liability. national security and the law of
nations, crimes, against the
To prove this point, let us now compare PP 1017 with a different fundamental laws of the state,
presidential issuance, one that was intended to diminish crimes against public order,
constitutional and civil rights of the people. The said issuance, crimes involving usurpation of
Presidential Proclamation No. 1081, was issued by President authority, rank, title and
Marcos in 1972 as the instrument of declaring martial law. The improper use of names, uniforms
operative provisions read: and insignia, crimes committed
by public officers, and for such
other crimes as will be
PD. 1081 PP 1017
enumerated in Orders that I shall
subsequently promulgate, as well
Now, thereof, I, Ferdinand E. NOW, THEREFORE, I Gloria as crimes as a consequence of
Marcos, President Of the Macapagal-Arroyo, President of any violation of any decree, order
Philippines, by virtue of the the Republic of the Philippines or regulation promulgated by me
powers vested upon me by and Commander-in-Chief of the personally or promulgated upon
article VII, Section 10, Paragraph Armed Forces of the Philippines, my direction shall be kept under
(2) of the Constitution, do hereby by virtue of the powers vested detention until otherwise ordered
place the entire Philippines as upon me by Section 18, Article 7 released by me or by my duly
designated representative. it to martial law rule and its effects on civil liberties. While martial
(emphasis supplied) law stood as a valid presidential prerogative under the 1935
Constitution, a ruling committed to safeguard civil rights and
Let us examine the differences between PP No. 1081 and PP 1017. liberties could have stood ground against even the most
First, while PP 1017 merely declared the existence of a state of fundamental of human rights abuses ostensibly protected under
rebellion, an act ultimately observational in character, PP 1081 the 1935 and 1973 constitutions and under international
“placed the entire Philippines under martial law,” an active declarations and conventions. Yet a perusal of Aquino v.
implement23 that, by itself, substituted civilian governmental Enrile,24 the case that decisively affirmed the validity of martial law
authority with military authority. Unlike in the 1986 Constitution, rule, shows that most of the Justices then sitting exhibited
which was appropriately crafted with an aversion to the excesses of diffidence guised though as deference towards the declaration of
Marcosian martial rule, the 1935 Constitution under which PP 1081 martial law. Note these few excerpts from the several opinions
was issued left no intervening safeguards that tempered or limited submitted in that case which stand as typical for those times:
the declaration of martial law. Even the contrast in the verbs used,
“place” as opposed to “declare,” betrays some significance. To The present state of martial law in the Philippines is peculiarly
declare may be simply to acknowledge the existence of a particular Filipino and fits into no traditional patterns or judicial precedents.
condition, while to place ineluctably goes beyond mere xxx In the first place I am convinced (as are the other Justices),
acknowledgement, and signifies the imposition of the actual without need of receiving evidence as in an ordinary adversary
condition even if it did not exist before. court proceeding, that a state of rebellion existed in the country
when Proclamation No. 1081 was issued. It was a matter of
Both PP 1081 and PP 1017 expressly invoke the calling out power. contemporary history within the cognizance not only of the courts
However, the contexts of such power are wildly distaff in light of PP but of all observant people residing here at that time. xxx The
1081’s accompanying declaration of martial law. Since martial law state of rebellion continues up to the present. The argument that
involves the substitution of the military in the civilian functions of while armed hostilities go on in several provinces in Mindanao
government, the calling out power involved in PP 1081 is there are none in other regions except in isolated pockets in Luzon,
significantly greater than the one involved in PP 1017, which could and that therefore there is no need to maintain martial law all over
only contemplate the enforcement of existing laws in relation to the the country, ignores the sophisticated nature and ramifications of
suppression of lawless violence, rebellion or invasion and the rebellion in a modern setting. It does not consist simply of armed
maintenance of general peace and order. clashes between organized and identifiable groups on fields of their
own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no
Further proof that PP 1081 intended a wholesale suspension of civil
actual fighting. Underground propaganda, through printed
liberties in the manner that PP 1017 does not even ponder upon is
newssheets or rumors disseminated in whispers; recruiting of
the subsequent paragraph cited, which authorizes the detention
armed and ideological adherents, raising of funds, procurement of
and continued detention of persons for a plethora of crimes not
arms and materiel, fifth-column activities including sabotage and
only directly related to the rebellion or lawless violence, but of
intelligence—all these are part of the rebellion which by their
broader range such as those “against national security,” or “public
nature are usually conducted far from the battle fronts. They
order.” The order of detention under PP 1081 arguably includes
cannot be counteracted effectively unless recognized and dealt with
every crime in the statute book. And most alarmingly, any person
in that context.25
detained by virtue of PP 1081 could remain in perpetual detention
unless otherwise released upon order of President Marcos or his
duly authorized representative. xxx

Another worthy point of contrast concerns how the Supreme Court, [T]he fact that courts are open cannot be accepted as proof that
during the martial law era, dealt with the challenges raised before the rebellion and insurrection, which compellingly called for the
declaration of martial law, no longer imperil the public safety. Nor effect, not ot mention the details of its forces and resources. By
are the many surface indicia adverted to by the petitioners (the subversion, the rebels can extend their field of action unnoticed
increase in the number of tourists, the choice of Manila as the site even up to the highest levels of the government, where no one can
of international conferences and of an international beauty contest) always be certain of the political complexion of the man next to
to be regarded as evidence that the threat to public safety has him, and this does not exclude the courts. Arms, ammunition and
abated. There is actual armed combat, attended by the somber all kinds of war equipment travel and are transferred in deep
panoply of war, raging in Sulu and Cotabato, not to mention the secrecy to strategic locations, which can be one’s neighborhood
Bicol region and Cagayan Valley. I am hard put to say, therefore, without him having any idea of what is going on. There are so
that the Government’s claim is baseless. many insidious ways in which subversives act, in fact too many to
enumerate, but the point that immediately suggests itself is that
I am not insensitive to the plea made here in the name of they are mostly incapable of being proven in court, so how are We
individual liberty. But to paraphrase Ex parte Moyer, if it were the to make a judicial inquiry about them that can satisfy our judicial
liberty alone of the petitioner Diokno that is in issue we would conscience.
probably resolve the doubt in his favor and grant his application.
But the Solicitor General, who must be deemed to represent the The Constitution definitely commits it to the Executive to determine
President and the Executive Department in this case, has the factual bases and to forthwith act as promptly as possible to
manifested that in the President’s judgment peace and tranquility meet the emergencies of rebellion and invasion which may be
cannot be speedily restored in the country unless the petitioners crucial to the life of the nation. He must do this with unwavering
and others like them meantime remain in military custody. For, conviction, or any hesitancy or indecision on his part will surely
indeed, the central matter involved is not merely the liberty of detract from the needed precision in his choice of the means he
isolated individuals, but the collective peace, tranquility and would employ to repel the aggression. The apprehension that his
security of the entire nation.26 decision might be held by the Supreme Court to be a transgression
of the fundamental law he has sworn to ‘defend and preserve’
xxx would deter him from acting when precisely it is most urgent and
critical that he should act, since the enemy is about to strike the
It may be that the existence or non-existence or imminence of a mortal blow.27
rebellion of the magnitude that would justify the imposition of
martial law is an objective fact capable of judicial notice, for a xxx
rebellion that is not of general knowledge to the public cannot
conceivably be dangerous to public safety. But precisely because it To start with, Congress was not unaware of the worsening
is capable of judicial notice, no inquiry is needed to determine the conditions of peace and order and of, at least, evident insurgency,
propriety of the Executive’s action. what with the numerous easily verifiable reports of open rebellious
activities in different parts of the country and the series of rallies
Again, while the existence of a rebellion may be widely known, its and demonstrations, often bloody, in Manila itself and other centers
real extent and the dangers it may actually pose to the public of population, including those that reached not only the portals but
safety are not always easily perceptible to the unpracticed eye. In even the session hall of the legislature, but the legislators seemed
the present day practices of rebellion, its inseparable subversion not to be sufficiently alarmed or they either were indifferent or did
aspect has proven to be more effective and important than “the not know what to do under the circumstances. Instead of taking
rising (of persons) publicly and taking arms against the immediate measures to alleviate the conditions denounced and
Government” by which the Revised Penal Code characterizes decried by the rebels and the activists, they debated and argued
rebellion as a crime under its sanction. Subversion is such a covert long on palliatives without coming out with anything substantial
kind of anti-government activity that it is very difficult even for much less satisfactory in the eyes of those who were seditiously
army intelligence to determine its exact area of influence and shouting for reforms. In any event, in the face of the inability of
Congress to meet the situation, and prompted by his appraisal of a branches.31 The expediency of hiding behind the political question
critical situation that urgently called for immediate action, the only doctrine can no longer be resorted to.
alternative open to the President was to resort to the other
constitutional source of extraordinary powers, the Constitution For another, the renewed emphasis within domestic and
itself.28 international society on the rights of people, as can be seen in
worldwide democratic movements beginning with our own in 1986,
xxx makes it more difficult for a government established and governed
under a democratic constitution, to engage in official acts that run
Proclamation 1081 is in no sense any more constitutionally contrary to the basic tenets of democracy and civil rights. If a
offensive. In fact, in ordering detention of persons, the government insists on proceeding otherwise, the courts will stand
Proclamation pointedly limits arrests and detention only to those in defense of the basic constitutional rights of the people.
“presently detained, as well as others who may hereafter be
similarly detained for the crimes of insurrection or rebellion, and all Still, the restoration of rule under law, the establishment of
other crimes and offences committed in furtherance or on the national governmental instrumentalities, and the principle of
occasion thereof, or incident thereto, or in connection therewith, republicanism all ensure that the constitutional government retains
for crimes against national security and the law of nations, crimes, significant powers and prerogatives, for it is through such
against the fundamental laws of the state, crimes against public measures that it can exercise sovereign will in behalf of the people.
order, crimes involving usurpation of authority, rank, title and Concession to those presidential privileges and prerogatives should
improper use of names, uniforms and insignia, crimes committed be made if due. The abuses of past executive governments should
by public officers, and for such other crimes as will be enumerated not detract from these basic governmental powers, even as they
in Orders that I shall subsequently promulgate, as well as crimes may warrant a greater degree of wariness from those institutions
as a consequence of any violation of any decree, order or that balance power and the people themselves. And the rule of law
regulation promulgated by me personally or promulgated upon my should prevail above all. The damage done by martial rule was not
direction.” Indeed, even in the affected areas, the Constitution has merely personal but institutional, and the proper rebuke to the
not been really suspended much less discarded. As contemplated in caprices and whims of the iniquitous past is to respect the confines
the fundamental law itself, it is merely in a state of anaesthesia, to of the restored rule of law.32
the end that the much needed major surgery to save the nation’s
life may be successfully undertaken.29 Nothing in PP 1017, or any issuance by any President since Aquino,
comes even close to matching PP 1081. It is a rank insult to
xxx those of us who suffered or stood by those oppressed under
PP 1081 to even suggest that the innocuous PP 1017 is of
The quoted lines of reasoning can no longer be sustained, on many equivalent import.
levels, in these more enlightened times. For one, as a direct
reaction to the philosophy of judicial inhibition so frequently PP 1017 Does Not Purport or Pretend that the President Has The
exhibited during the Marcos dictatorship, our present Constitution Power to Issue Decrees
has explicitly mandated judicial review of the acts of government
as part of the judicial function. As if to rebuff Aquino, the 1987 There is one seeming similarity though in the language of PP 1017
Constitution expressly allows the Supreme Court to review the and PP 1081, harped upon by some of the petitioners and alluded
sufficiency of the factual basis of the proclamation of martial law to by the majority. PP 1017 contains a command to the Armed
and decide the same within 30 days from the filing of the Forces “to enforce obedience to all the laws and to all decrees,
appropriate case.30 The Constitution also emphasizes that a state of orders and regulations by [the President]”. A similar command was
martial law did not suspend the operation of the Constitution or made under PP 1081. That in itself should not be a cause of
supplant the functioning of the judicial and legislative
surprise, since both PP 1017 and PP 1081 expressly invoked the me,” which necessarily refers only to orders and regulations.
“calling out” power, albeit in different contexts. Otherwise, PP 1017 would be ridiculous in the sense that the
obedience to be enforced only relates to laws promulgated by
The majority however considers that since the President does not President Arroyo since she assumed office in 2001. “Laws and
have the power to issue decrees, PP 1017 is unconstitutional decrees” do not relate only to those promulgated by President
insofar as it enforces obedience “to all decrees.” For one, it should Arroyo, but other laws enacted by past sovereigns, whether they
be made clear that the President currently has no power to issue be in the form of the Marcos presidential decrees, or acts enacted
decrees, and PP 1017 by no measure seeks to restore such power by the American Governor-General such as the Revised Penal
to the President. Certainly, not even a single decree was issued by Code. Certainly then, such a qualification sufficiently addresses the
President Arroyo during the several days PP 1017 was in effect, or fears of the majority that PP 1017 somehow empowers or
during her term thus far for that matter. recognizes the ability of the current President to promulgate
decrees. Instead, the majority pushes an interpretation that, if
At the same time, such power did once belong to the President pursued to its logical end, suggests that the President by virtue of
during the Marcos era and was extensively utilized by President PP 1017 is also arrogating unto herself, the power to promulgate
Marcos. It has to be remembered that chafed as we may have laws, which are in the mold of enactments from Congress. Again,
under some of the Marcos decrees, per the 1987 Constitution they in this respect, the grouping of “laws” and “decrees” separately
still remain as part of the law of the land unless particularly from “orders” and “regulations” signifies that the President has not
stricken down or repealed by subsequent enactments. Indeed, arrogated unto herself the power to issue decrees in the mold of
when the President calls upon the Armed Forces to enforce the the infamous Marcos decrees.
laws, those subsisting presidential decrees issued by President
Marcos in the exercise of his legislative powers are included in the Moreover, even assuming that PP 1017 was intended to apply to
equation. decrees which the current President could not very well issue, such
intention is of no consequence, since the proclamation does not
This view is supported by the rules of statutory construction. The intend or pretend to grant the President such power in the first
particular passage in PP 1017 reads “”to enforce obedience to all place. By no measure of contemplation could PP 1017 be
the laws and to all decrees, orders and regulations,” with the interpreted as reinstating to the President the power to issue
phrases “all the laws and to all decrees” separated by a comma decrees.
from “orders and regulations promulgated by me.” Inherently, laws
and those decrees issued by President Marcos in the exercise of his I cannot see how the phrase “enforce obedience to decrees” can be
legislative powers, and even those executive issuances of President the source of constitutional mischief, since the implementation of
Aquino in the exercise of her legislative powers, belong to the PP 1017 will not vest on the President the power to issue such
same class, superior in the hierarchy of laws than “orders and decrees. If the Court truly feels the need to clarify this point, it can
regulations.” The use of the conjunction “and” denotes a joinder or do so with the expediency of one sentence or even a footnote. A
union, “relating the one to the other.” 33 The use of “and” solemn declaration that the phrase is unconstitutional would be like
establishes an association between laws and decrees distinct from killing a flea with dynamite when insect powder would do.
orders and regulations, thus permitting the application of the
doctrine of noscitur a sociis to construe “decrees” as those decrees PP 1017 A Valid Exercise of Prerogatives
which at present have the force of law. The dividing comma further
signifies the segregation of concepts between “laws and decrees” Inherent and Traditional in the Office of The Presidency
on one hand, and “orders and regulations” on the other.
Thus far, I have dwelt on the legal effects of PP 1017, non-existent
Further proof that “laws and decrees” stand as a class distinct from as they may be in relation to the citizenry, the courts or on
“orders and regulations” is the qualifying phrase “promulgated by
Congress. Still, there is another purpose and dimension behind PP pulpit”, in line with his belief that the President was the steward of
1017 that fall within the valid prerogatives of the President. the people limited only by the specific restrictions and prohibitions
appearing in the Constitution, or impleaded by Congress under its
The President, as head of state, is cast in a unique role in our polity constitutional powers.
matched by no other individual or institution. Apart from the
constitutional powers vested on the President lie those powers Many times, the President exercises such prerogative as a
rooted in the symbolic functions of the office. There is the common responsive measure, as after a mass tragedy or calamity. Indeed,
expectation that the President should stand as the political, moral when the President issues a declaration or proclamation of a state
and social leader of the nation, an expectation not referred to in of of national mourning after a disaster with massive casualties, while
the oath of office, but expected as a matter of tradition. In fact, a perhaps de rigeur, is not the formalistic exercise of tradition, but a
President may be cast in crisis even if the Chief Executive has statement that the President, as the representative of the Filipino
broken no law, and faithfully executed those laws that exist, simply people, grieves over the loss of life and extends condolences in
because the President has failed to win over the hearts and minds behalf of the people to the bereaved. This is leadership at its most
of the citizens. As a Princeton academic, Woodrow Wilson once solemn.
observed that with the People, the President is everything, and
without them nothing, and the sad decline of his own eventual Yet the President is not precluded, in the exercise of such role, to
presidency is no better proof of the maxim. Such are among the be merely responsive. The popular expectation in fact is of a pro-
vagaries of the political office, and generally beyond judicial relief active, dynamic chief executive with an ability to identify problems
or remedy. or concerns at their incipience and to respond to them with all legal
means at the earliest possible time. The President, as head of
Justice Robert Jackson’s astute observation in Youngstown Sheet & state, very well has the capacity to use the office to garner support
Tube Co. v. Sawyer34 on the unique nature of the presidency, has for those great national quests that define a civilization, as
been widely quoted: President Kennedy did when by a mere congressional address, he
put America on track to the goal of placing a man on the moon.
Executive power has the advantage of concentration in a single Those memorable presidential speeches memorized by
head in whose choice the whole Nation has a part, making him the schoolchildren may have not, by themselves, made operative any
focus of public hopes and expectations. In drama, magnitude, and law, but they served not only merely symbolic functions, but help
finality, his decisions so far overshadow any others that almost profoundly influence towards the right direction, the public opinion
alone he fills the public eye and ear. No other personality in public in the discourse of the times. Perhaps there was no more dramatic
life can begin to compete with him in access to the public mind example of the use of the “bully pulpit” for such noble purposes
through modern methods of communications. By his prestige as than in 1964, when an American President from Texas stood before
head of state and his influence upon public opinion he exerts a a Congress populated by many powerful bigots, and fully
leverage upon those who are supposed to check and balance his committed himself as no other President before to the cause of civil
power which often cancels their effectiveness.35 rights with his intonation of those lines from the civil rights
anthem, “we shall overcome.”
Correspondingly, the unique nature of the office affords the
President the opportunity to profoundly influence the public From an earlier era in American history, Lincoln’s Emancipation
discourse, not necessarily through the enactment or enforcement Proclamation stands out as a presidential declaration which clearly
of laws, but specially by the mere expediency of taking a stand on staked American polity on the side of the democratic ideal, even
the issues of the day. Indeed, the President is expected to exercise though the proclamation itself was of dubitable legal value. The
leadership not merely through the proposal and enactment of laws, proclamation, in short form, “freed the slaves”, but was not itself
but by making such vital stands. U.S. President Theodore free of legal questions. For one, the notion that the President
Roosevelt popularized the notion of the presidency as a “bully could, by himself, alter the civil and legal status of an entire class
of persons was dubious then and now, although President Lincoln II.
did justify his action as in the exercise of his powers as
commander-in-chief during wartime, “as a fit and necessary war Section 17, Article XII of the Constitution In Relation to PP 1017
measure for suppressing [the] rebellion.” Moreover, it has been
pointed out that the Proclamation only freed those slaves in those My next issue with the majority pertains to the assertion that the
states which were then in rebellion, and it eventually took the President does not have the power to take over public utilities or
enactment of the Thirteenth Amendment of the U.S. Constitution to businesses impressed with public interest under Section 17, Article
legally abolish involuntary servitude.36 Notwithstanding the legal XII of the Constitution without prior congressional authorization. I
haze surrounding it, the Emancipation Proclamation still stands as agree that the power of the State to take over such utilities and
a defining example not only of the Lincoln Presidency, but of businesses is highly limited, and should be viewed with suspicion if
American democratic principles. It may be remembered to this day actually enforced.
not exactly as an operational means by which slaves were actually
freed, but as a clear rhetorical statement that slavery could no
Yet qualifications are in order with regard to how Section 17,
longer thenceforth stand.
Article XII actually relates of PP 1017.

The President as Chief Government Spokesperson of the

I agree with the majority that a distinction should be asserted as
democratic ideals is entrusted with a heady but comfortable
between the power of the President to declare a state of
pursuit. But no less vital, if somewhat graver, is the role of the
emergency, and the exercise of emergency powers under Section
President as the Chief Defender of the democratic way of life. The
17, Article XII. The President would have the power to declare a
“calling out” power assures the President such capability to a great
state of emergency even without Section 17, Article XII.
extent, yet it will not fully suffice as a defense of democracy. There
is a need for the President to rally the people to defend the
Constitution which guarantees the democratic way of life, through At the same time, it should be recognized that PP 1017, on its face
means other than coercive. I assert that the declaration of a state and as applied, did not involve the actual takeover of any public
of emergency, on premises of a looming armed threat which have utility or business impressed with public interest. To some minds,
hardly been disputed, falls within such proper functions of the the police action in relation to the Daily Tribune may have flirted
President as the defender of the Constitution. It was designed to with such power, yet ultimately the newspaper was able to
inform the people of the existence of such a threat, with the independently publish without police interference or court
expectation that the citizenry would not aid or abet those who injunction. It may be so that since PP 1017 did make express
would overturn through force the democratic government. At the reference to Section 17, Article XII, but it should be remembered
same time, the Proclamation itself does not violate the Constitution that the constitutional provision refers to a two-fold power of the
as it does not call for or put into operation the suspension or State to declare a national emergency and to take over such
withdrawal of any constitutional rights, or even create or diminish utilities and enterprises. The first power under Section 17, Article
any substantive rights. XII is not distinct from the power of the President, derived from
other constitutional sources, to declare a state of national
emergency. Reference to Section 17, Article XII in relation to the
I submit that it would be proper for the Court to recognize that PP
power to declare a state of national emergency is ultimately
1017 strikes a commendable balance between the Constitution, the
superfluous. A different situation would obtain though if PP 1017
“calling out” power, and the inherent function of the Presidency as
were invoked in the actual takeover of a utility or business, and in
defender of the democratic constitution. PP 1017 keeps within the
such case, full consideration of the import of Section 17, Article XII
scope and limitations of these three standards. It asserts the
would be warranted. But no such situation obtains in this case, and
primacy of the democratic order, civilian control over the armed
any discussion relating to the power of the State to take over a
forces, yet respects constitutional and statutory guarantees of the
utility or business under Section 17, Article XII would ultimately be
people.
obiter dictum.
I respectfully submit that the Court, in these petitions, need not The fact that Section 17 is purposely ambivalent as to whether the
have engaged this potentially contentious issue, especially as it President may exercise the power therein with or without
extends to whether under constitutional contemplation, the congressional approval leads me to conclude that it is
President may act in behalf of the State in exercising the powers constitutionally permissible to recognize exceptions, such as in
under Section 17, Article XII. Nonetheless, considering that the extreme situations wherein obtention of congressional authority is
majority has chosen to speak out anyway, I will express agreement impossible or inexpedient considering the emergency. I thus
that as a general rule, the President may exercise such powers dissent to any proposition that such requirement is absolute under
under Section 17, Article XII only under the grant of congressional all circumstances. I maintain that in such extreme situations, the
approval. Certainly, the notion that congressional authority is President may exercise such authority subject to judicial review.
required under Section 17, Article XII is not evident from the
provision. Even Fr. Bernas notes that Section 17 does not require, It should be admitted that some emergencies are graver and more
as does Article VI, Section 23(2), that the authorization be “by imminent than others. It is not within the realm of impossibility
law”, thus leaving the impression that the authorization can come that by reason of a particularly sudden and grave emergency,
from the President.37 Congress may not be able to convene to grant the necessary
congressional authority to the President. Certainly, if bombs from a
After the 1989 coup d’etat, President Aquino issued issued foreign invader are falling over Manila skies, it may be difficult, not
Proclamation No. 503 on 6 December 1989, declaring a state of to mention unnecessarily onerous, to require convening Congress
national emergency, and referring therein to Section 17, Article XII before the President may exercise the functions under Section 17,
by citing the entire provision. The declaration was subsequently Article XII. The proposition of the majority may be desirable as the
reaffirmed by Congress when two weeks after, it enacted Republic general rule, but the correct rule that should be adopted by the
Act No. 6826. Notably, Section 3(3) of the law authorized the Court should not be so absolute so as to preclude the exercise by
President “to temporarily takeover or direct the operation of any the President of such power under extreme situations.
privately-owned public utility or business affected with public
interest that violates the herein declared national policy”. Tellingly, In response to this argument, the majority cites portions
however, such authority was granted by Congress expressly of Araneta v. Dinglasan,39 most pertinent of which reads: “The
“pursuant to Article VI, Section 23(2) of the Constitution”, and not point is, under this framework of government, legislation is
the take-over provision in Section 17, Article XII. Evidently, the preserved for Congress all the time, not excepting periods of crisis
view that Section 17, Article XII requires prior congressional no matter how serious.”
authority has some novelty to it.
For one, Araneta did not involve a situation wherein the President
Still, I concede that it is fundamentally sound to construe Section attempted to exercise emergency powers without congressional
17 as requiring congressional authority or approval before the authority; concerning as it did the exercise by President Quirino of
takeover under the provision may be effected. After all, the taking those emergency powers conferred several years earlier by
over of a privately owned public utility or business affected with Congress to President Quezon at the onset of the Pacific phase of
public interest would involve an infringement on the right of private World War II. The Court therein ruled that the emergency that
enterprise to profit; or perhaps even expropriation for a limited justified then the extraordinary grant of powers had since expired,
period. Constitutionally, the taking of property can only be and that there no longer existed any authority on the part of the
accomplished with due process of law,38 and the enactment of President to exercise such powers, notwithstanding that the law,
appropriate legislation prescribing the terms and conditions under Commonwealth Act No. 671, “did not in term fix the duration of its
which the President may exercise the powers of the State under effectiveness”.
Section 17 stands as the best assurance that due process of law
would be observed. Clearly, the context in which the Court made that observation
in Araneta is not the same context within which my own
observations oscillate. My own submission is premised on the analytical tool for testing ‘on their faces’ statutes in free speech
extreme situation wherein Congress may be physically unable to cases.”42
convene, an exceptional circumstance which the hard-line stance of
the majority makes no concessions for. As I noted in my Separate Opinion in Romualdez v.
Sandiganbayan,43 citing Justice Kapunan, there is a viable
Indeed, even the factual milieu recounted in Araneta conceded that distinction between “void for vagueness” and “overbreadth” which
such extreme circumstance could occur, when it noted President the majority sadly ignores.
Quezon’s claim that he was impelled to call for a special session of
the National Assembly after foreseeing that “it was most unlikely A view has been proferred that “vagueness and overbreadth
that the Philippine Legislature would hold its next regular session doctrines are not applicable to penal laws.” These two concepts,
which was to open on January 1, 1942.” 40 That the National while related, are distinct from each other. On one hand, the
Assembly then was able to convene and pass Commonwealth Act doctrine of overbreadth applies generally to statutes that
No. 671 was fortunate, but somewhat a luxury nonetheless. infringe upon freedom of speech. On the other hand, the
Indeed, it is not beyond the realm of possibility that the emergency “void-for-vagueness” doctrine applies to criminal laws, not
contemplated would be so grave that a sufficient number of merely those that regulate speech or other fundamental
members of Congress would be physically unable to convene and constitutional right. (not merely those that regulate speech
meet the quorum requirement. or other fundamental constitutional rights.) The fact that a
particular criminal statute does not infringe upon free speech does
Ultimately though, considering that the authorized or actual not mean that a facial challenge to the statute on vagueness
takeover under Section 17, Article XII, is not presented as a grounds cannot succeed.44
properly justiciable issue. Nonetheless, and consistent with the
general tenor, the majority has undertaken to decide this non- The distinction may prove especially crucial since there has been a
justiciable issue, and to even place their view in the dispositive long line of cases in American Supreme Court jurisprudence
portion in a bid to enshrine it as doctrine. In truth, the Court’s wherein penal statutes have been invalidated on the ground that
pronouncement on this point is actually obiter. It is hoped that they were “void for vagueness.” As I cited in Romualdez v.
should the issue become ripe for adjudication before this Court, Sandiganbayan,45 these cases are Connally v. General Construction
the obiter is not adopted as a precedent without the qualification Co,.46Lanzetta v. State of New Jersey,47Bouie v. City of
that in extreme situations wherein congressional approval is Columbia,48 Papachristou v. City of Jacksonville, 49 Kolender v.
impossible or highly impractical to obtain, the powers under Lawson,50 and City of Chicago v. Morales.51
Section 17, Article XII may be authorized by the President.
Granting that perhaps as a general rule, overbreadth may find
III. application only in “free speech” 52 cases, it is on the other hand
very settled doctrine that a penal statute regulating conduct, not
Overbreadth and “Void for Vagueness” Doctrines Applicable Not speech, may be invalidated on the ground of “void for vagueness”.
Only To Free Speech Cases In Romualdez, I decried the elevation of the suspect and radical
new doctrine that the “void for vagueness” challenge cannot apply
The majority states that “the overbreadth doctrine is an analytical other than in free speech cases. My view on this point has not
tool developed for testing ‘on their faces’ statutes in free speech changed, and insofar as the ponencia would hold otherwise, I thus
cases”41, and may thus be entertained “in cases involving statutes dissent.
which, by their terms, seek to regulate only ‘spoken words’, and
not conduct. A similar characterization is made as to the “void for Moreover, even though the argument that an overbreadth
vagueness” doctrine, which according to the majority, is “subject to challenge can be maintained only in free speech cases has more
the same principles governing overbreadth doctrine … also an jurisprudential moorings, the rejection of the challenge on that
basis alone may prove unnecessarily simplistic. I maintain that Moreover, General Order No. 5 cannot redefine statutory crimes or
there is an even stronger ground on which the overbreadth and create new penal acts, since such power belongs to the legislative
“void for vagueness” arguments can be refuted—that Presidential alone. Fortunately, General Order No. 5 does not assume to make
Proclamation 1017 (PP 1017) neither creates nor diminishes any such redefinitions. It may have been a different matter had
rights or obligations whatsoever. In fact, I submit again that this General Order No. 5 attempted to define “acts of terrorism” in a
proposition is the key perspective from which the petitions should manner that would include such acts that are not punished under
be examined. our statute books, but the order is not comported in such a way.
The proper course of action should be to construe “terrorism” not
IV. in any legally defined sense, but in its general sense. So long as it
is understood that “acts of terrorism” encompasses only those acts
General Order No. 5 which are already punishable under our laws, the reference is not
constitutionally infirm.
Suffers No Constitutional Infirmity
The majoritycites a theoretical example wherein a group of persons
engaged in a drinking spree may be arrested by the military or
The majority correctly concludes that General Order No. 5 is
police in the belief that they were committing acts of terrorism
generally constitutional. However, they make an unnecessary
pursuant to General Order No. 5. Under the same logical
distinction with regard to “acts of terrorism”, pointing out that
framework that group of persons engaged in a drinking spree could
Congress has not yet passed a law defining and punishing
very well be arrested by the military or police in the belief that they
terrorism or acts of terrorism.
are committing acts of lawless violence pursuant to General Order
No. 5, instead of acts of terrorism. Obviously such act would be
That may be the case, but does the majority seriously suggest that “abuse and oppression” on the part of the military and the police,
the President or the State is powerless to suppress acts of whether justified under “lawless violence” or “acts of terrorism”.
terrorism until the word “terrorism” is defined by law? Terrorism Yet following the logic of the majority, the directive to prevent acts
has a widely accepted meaning that encompasses many acts of “lawless violence” should be nullified as well.
already punishable by our general penal laws. There are several
United Nations and multilateral conventions on terrorism53, as well
If the point of the majority is that there are no justiciable
as declarations made by the United Nations General Assembly
standards on what constitutes acts of terrorism, it should be
denouncing and seeking to combat terrorism. 54 There is a general
pointed out that only the following scenarios could ensue. For one,
sense in international law as to what constitutes terrorism, even if
a person would actually be arrested and charged with “acts of
no precise definition has been adopted as binding on all nations.
terrorism”, and such arrest or charge would be thrown out of the
Even without an operative law specifically defining terrorism, the
courts, since our statute books do not criminalize the specific crime
State already has the power to suppress and punish such acts of
of terrorism. More probably, a person will be arrested and charged
terrorism, insofar as such acts are already punishable, as they
for acts that may under the layperson’s contemplation constitutes
almost always are, in our extant general penal laws. The President,
acts of terrorism, but would be categorized in the information and
tasked with the execution of all existing laws, already has a
charge sheet as actual crimes under our Revised Penal Code. I
sufficient mandate to order the Armed Forces to combat those acts
simply cannot see how General Order No. 5 could validate arrests
of terrorism that are already punishable in our Revised Penal Code,
and convictions for non-existent crimes.
such as rebellion, coup d’etat, murder, homicide, arson, physical
injuries, grave threats, and the like. Indeed, those acts which
under normal contemplation would constitute terrorism are Interestingly, the majority, by taking issue with the lack of
associated anyway with or subsumed under lawless violence, which definition and possible broad context of “acts of terrorism”, seems
is a term found in the Constitution itself. Thus long ago, the State to be positively applying the arguments of “overbreadth” or “void
has already seen it fit to punish such acts. for vagueness”, arguments which they earlier rejected as
applicable only in the context of free expression cases. The I respectfully disagree with the manner by which the majority
inconsistency is breath-taking. While I disagree with the majority- would treat the “void as applied” argument presented by the
imposed limitations on the applicability of the “overbreadth” or petitioners. The majority adopts the tack of citing three particular
“void for vagueness” doctrines, I likewise cannot accede to the injuries alleged by the petitioners as inflicted with the
application of those doctrines in the context of General Order No. implementation of PP 1017. The majority analyzes the alleged
5, for the same reason that they should not apply to PP 1017. injuries, correlates them to particular violations of the Bill of
Neither General Order No. 5 nor PP 1017 is a penal statute, or Rights, and ultimately concludes that such violations were illegal.
have an operative legal effect of infringing upon liberty, expression
or property. As such, neither General Order No. 5 nor PP 1017 can The problem with this approach is that it would forever deem the
cause the deprivation of life, liberty or property, thus divorcing Court as a trier or reviewer at first instance over questions
those issuances from the context of the due process clause. The involving the validity of warrantless arrests, searches, seizures and
same absence of any binding legal effect of these two issuances the dispersal of rallies, all of which entail a substantial level of
correspondingly disassociates them from the constitutional factual determination. I agree that PP 1017 does not expand the
infringement of free expression or association. Neither “void for grounds for warrantless arrests, searches and seizures or dispersal
vagueness” nor “overbreadth” therefore lie. of rallies, and that the proclamation cannot be invoked before any
court to assert the validity of such unauthorized actions. Yet the
Another point. The majority concludes from General Order No. 5 problem with directly adjudicating that the injuries inflicted on
that the military or police is limited in authority to perform those David, et al., as illegal, would be that such would have been done
acts that are “necessary and appropriate actions and measures to with undue haste, through an improper legal avenue, without the
suppress and prevent acts of terrorism and lawless violence,” and appropriate trial of facts, and without even impleading the
such acts committed beyond such authority are considered illegal. I particular officers who effected the arrests/searches/seizures.
do not dispute such conclusion, but it must be emphasized that
“necessary and appropriate actions and measures” precisely do not I understand that the injurious acts complained of by the
authorize the military or police to commit unlawful and petitioners upon the implementation of PP 1017 are a source of
unconstitutional acts themselves, even if they be geared towards grave concern. Indubitably, any person whose statutory or
suppressing acts of terrorism or lawless violence. Indeed, with constitutional rights were violated in the name of PP 1017 or
the emphasis that PP 1017 does not create new rights or General Order No. 5 deserves redress in the appropriate civil or
obligations, or diminish existing ones, it necessarily follows criminal proceeding, and even the minority wishes to makes this
that General Order No. 5, even if premised on a state of point as emphatically clear, if not moreso, as the majority. Yet a
emergency, cannot authorize the military or police to ignore ruling from this Court, without the proper factual basis or
or violate constitutional or statutory rights, or enforce laws prayer for remuneration for the injury sustained, would
completely alien to the suppression of lawless ultimately be merely symbolic. While the Court will not be
violence. Again, following the cardinal principle of legal harmed by a symbolic reaffirmation of commitment to the
hermeneutics earlier adverted to, General Order No. 5 should be principles in the Bill of Rights, it will be harmed by a ruling
viewed in harmony with the Constitution, and only if it the Order that unduly and inappropriately expands the very limited
irreconcilably deviates from the fundamental law should it be function of the Court as a trier of facts on first instance.
struck down.
In my dissent in Teves v. Sandiganbayan,55 I alluded to the fact
V. that our legal system may run counter-intuitive in the sense that
the seemingly or obviously guilty may still, after trial, be properly
Court Should Refrain Making Any Further Declaration, For Now, acquitted or exonerated; to the extent that even an accused who
Relating to the Individual Grievances Raised by the Petitioners in murders another person in front of live television cameras
Relation To PP 1017 broadcast to millions of sets is not yet necessarily guilty of the
crime of murder or homicide. 56 Hence, the necessity of a proper rights (a declaration which the minority would have no qualms
trial so as to allow the entire factual milieu to be presented, tested assenting to) would sufficiently arm those petitioners and other
and evaluated before the court. In my theoretical example, the persons whose rights may have been injured in the implementation
said accused should nonetheless be acquitted if the presence of of PP 1017, with an impeccable cause of action which they could
exempting circumstances is established. The same principle applies pursue against the violators before the appropriate courts. At the
in these cases. Certainly, we in the Court can all agree that PP same time, if the officers or officials concerned have basis to
1017 cannot be invoked to justify acts by the police or military contend that no such rights were violated, for justifications
officers that go beyond the Constitution and the laws. But the independent of PP 1017 or General Order No. 5, such claims could
course of prudence dictates that the pronouncement of such a receive due consideration before the courts. Such a declaration
doctrine, while enforceable in a court of law, should not yet extend would squarely entrench the Court as a defender of the Bill of
itself to specific examples that have not yet been properly Rights, foster enforceable means by which the injured could seek
litigated. The function of this Court is to make legal actual redress for the injury sustained, and preserve the integrity
pronouncements not based on “obvious” facts, but on and order of our procedural law.
proven facts.
VI.
A haphazard declaration by the Court that the arrests or seizures
were “illegal” would likewise preclude any meaningful review or Conclusion
reevaluation of pertinent legal doctrines that otherwise could have
been reexamined had these acts been properly challenged in The country-wide attention that the instant petitions have drawn
regular order. For example, the matter of the warrantless arrests in should not make the Court lose focus on its principal mission,
these cases could have most certainly compelled the Court to again which is to settle the law of the case. On the contrary, the highly
consider the doctrine laid down in Umil v. Ramos on warrantless political nature of these petitions should serve as forewarning for
arrests and rebellion as a continuing crime, a doctrine that may the Court to proceed ex abundante cautelam, lest the institution be
merit renewed evaluation. Yet any healthy reexamination of Umil, unduly dragged into the partisan mud. The credibility of the Court
or other precedents for that matter, require the presentation and is ensured by making decisions in accordance with the Constitution
trial of the proper factual predicates, a course which the majority without regard to the individual personalities involved; with sights
unfortunately “short-cuts” in this present decision. set on posterity, oblivious of the popular flavor of the day.

Of course, despite the grandiloquent pronouncement by the By deciding non-justiciable issues and prejudging cases and
majority that the acts complained of by the petitioners and controversies without a proper trial on the merits, the majority has
implemented pursuant to General Order No. 5 are illegal, it could diminished the potency of this Court’s constitutional power in favor
nonetheless impose civil, criminal or administrative sanctions on of rhetorical statements that afford no quantifiable relief. It is for
the individual police officers concerned, as these officers had not the poet and the politician to pen beautiful paeans to the people’s
been “individually identified and given their day in court”. Of rights and liberties, it is for the Court to provide for viable legal
course, the Court would be left with pie on its face if these persons, means to enforce and safeguard these rights and liberties. When
once “given their day in court”, would be able to indubitably the passions of these times die down, and sober retrospect
establish that their acts were actually justified under law. Perhaps accedes, the decision of this Court in these cases will be looked
worse, the pronouncement of the majority would have had the upon as an extended advisory opinion.
effect of prejudging these cases, if ever lodged, even before trial
on the merits.
Yes, PP 1017 and General Order No. 5 warrant circumspect
scrutiny from those interested and tasked with preserving our civil
Certainly, a declaration by the majority that PP 1017 or General liberties. They may even stand, in the appropriate contexts, as
Order No. 5 cannot justify violation of statutory or constitutional viable partisan political issues. But the plain fact remains that,
 10
under legal contemplation, these issuances are valid on their face,  “No officer or employee of the civil service shall be removed or
and should result in no constitutional or statutory breaches if suspended except for cause provided by law.” See Constitution,
applied according to their letter. Section 2(3), Article IX-B.

11
I vote to DISMISS all the petitions.  See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October
1989, 178 SCRA 760, 763.
DANTE O. TINGA
12
Associate Justice  See Administrative Code, Section 4, Chapter 2, Book III.

13
Notes:  See Section 18, Article VII, Constitution.

1 14
 G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004,  392 Phil. 618 (2000)
421 SCRA 656.
15
 Id. at 627.
2
 R. Agpalo, Statutory Construction, 3rd.ed. (1995), at 21.
16
 Id. at 644.
3
 “When a statute is reasonably susceptible of two constructions,
one constitutional and the other unconstitutional, that construction 17
 Id. at 636.
in favor of its constitutionality shall be adopted and the
construction that will render it invalid rejected.” See R. Agpalo, id., 18
 Id. at 643.
at 266; citing Mutuc v. COMELEC, G.R. No. 32717, Nov. 26, 1970,
36 SCRA 228; J.M. Tuason & Co., Inc. v. Land Tenure Adm., G.R. 19
 Id.
No. 21064, Feb. 18, 1970, 31 SCRA 413; American Bible Society v.
City of Manila, 101 Phil. 386 (1957); Alba v. Evangelista, 100 Phil. 20
683 (1957); Maddumba v. Ozaeta, 82 Phil. 345 (1948); Benguet Sanlakas v. Executive Secretary, supra note 1, at 668.
Exploration, Inc. v. Department of Agriculture and Natural 21
Resources, G.R. No. 29534, Fe. 28, 1977, 75 SCRA 285 (1977); De  Id. at 677.
la Cruz v. Paras, G.R. No. 42591, July 25, 1983, 123 SCRA 569.
22
 Supra note 8.
4
 See Constitution, Section 17, Article VII.
23
 The declaration of martial law then within the President to make
5
 See Constitution, Section 18, Article VII. under authority of Section 10(2), Article VII of the 1935
Constitution.
6
 See Constitution, Section 1, Article VII. 24
 No. L-35546, 17 September 1974, 59 SCRA 183.
7
 The plenary legislative power being vested in Congress. See 25
Constitution, Section 1, Article VI.  Aquino, Jr. v. Enrile, id. at 240-241.

26
8
 “[The President] shall ensure that the laws be faithfully  Aquino, Jr. v. Enrile, id. at 262-263, Castro, J., Separate
executed.” See Constitution, Section 17, Article VII. Opinion.

27
9
 Supra note 4.  Id. at 398-399, Barredo, J., concurring.
28 47
 Id. at 405-406, Barredo, J., concurring.  306 U.S. 451 (1939).

29 48
 Id. at 423, Barredo, J., concurring.  378 U.S. 347 (1964).

30 49
 Constitution, Section 18, Article VII.  405 U.S. 156 (1972).

31 50
 Constitution, Section 18, Article VII.  461 U.S. 352 (1983).

32 51
 See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005.  Case No. 97-1121, 10 June 1999.

33 52
 See R. Agpalo, Statutory Construction, p. 206.  But see United States v. Robel, 389 U.S. 258 (1967), wherein
the U.S. Supreme Court invalidated a portion of the Subversive
34
 343 U.S. 579, 653-654, J. Jackson, concurring. Control Activities Act on the ground of overbreadth as it sought to
proscribe the exercise the right of free association, also within the
35
 Ibid. First Amendment of the United States Constitution but a distinct
right altogether from free expression.
36
 See George Fort Milton, The Use of Presidential Power: 1789- 53
1943, 1980 ed., at 119-120.  To name a few, the Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons,
37 including Diplomatic Agents (1973); International Convention for
 See J. Bernas, S.J., The 1987 Constitution of the Republic of the
the Suppression of Terrorist Bombings (1997); International
Philippines: A Commentary, 2003 ed., at 1183.
Convention for the Suppression of the Financing of Terrorism
38
(1999); the International Convention for the Suppression of Acts of
 See Section 1, Article III, Constitution. Nuclear Terrorism (2005). See “United Nations Treaty Collection –
39
Conventions on Terrorism”,
 84 Phil. 368 (1949). http://untreaty.un.org/English/Terrorism.asp (last visited, 30 April
2006).
40
 Id. at 379.
54
 See, e.g., Resolution No. 49/60, Adopted by the United Nations
41
 Decision, infra. General Assembly on 17 February 1995.

42
 Id. 55
 G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-
348. J. Tinga, dissenting.
43
 G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406.
56
 Id. at 345.
44
 Id., at 398, citing Estrada v. Sandiganbayan, 421 Phil.
290, J. Kapunan, dissenting, at pp. 382-384. ——————————————————————————————————
—————-
45
 Id., at 398-401.
EN BANC
46
 269 U.S. 385, 393 (1926).
G.R. No. 171396 — Professor Randolf S. David, et The only real security for social well-being is the free exercise of
al., Petitioners,versus Gloria Macapagal-Arroyo, as President men’s minds.
and Commander-in-Chief, et al, Respondents.
-Harold J. Laski, Professor of Government and Member of the
G.R. No. 171409 — Ninez Cacho-Olivares and Tribune British Labor Party, in his book, Authority in the Modern State
Publishing Co., Inc., Petitioners, versus Honorable Secretary (1919).
Eduardo Ermita and Honorable Director General Arturo C.
Lomibao, Respondents. The ideals of liberty and equality, the eminent U.S. Supreme Court
Justice Benjamin Cardozo once wrote, are preserved against the
G.R. No. 171485 — Francis Joseph G. Escudero, et assaults of opportunism, the expediency of the passing hour, the
al. Petitioners, versus Eduardo R. Ermita, et al., Respondents. erosion of small encroachments, the scorn and derision of those
who have no patience with general principles. 1 In an open and
G.R. No. 171483 — Kilusang Mayo Uno, represented by its democratic society, freedom of thought and expression is the
Chairperson Elmer C. Labog and Secretary General Joel matrix, the indispensable condition, of nearly every other form of
Maglunsod, et al., Petitioners, versus Her Excellency freedom.2
President Gloria Macapagal Arroyo, et al., Respondents.
I share the view that Presidential Proclamation No. 1017 (PP 1017)
G.R. No. 171400 — Alternative Law Groups, Inc.. under which President Gloria Macapagal Arroyo declared a state of
(ALG), Petitioners,versus Executive Secretary, Eduardo national emergency, and General Order No. 5 (GO No. 5), issued
Ermita, et al., Respondents. by the President pursuant to the same proclamation are both partly
unconstitutional.
G.R. No. 171489 – Jose Anselmo I. Cadiz, et al., Petitioners,
I fully agree with the pronouncement that PP 1017 is no more than
versus Hon. Executive Secretary Eduardo Ermita, et the exercise by the President, as the Commander-in-Chief of all
al., Respondents. armed forces of the Philippines, of her power to call out such
armed forces whenever it becomes necessary to prevent or
suppress lawless violence, invasion or rebellion. This is
G.R. No. 171424 — Loren B.
allowed under Section 18, Article VII of the Constitution.
Legarda, Petitioner,versus President Gloria Macapagal-
Arroyo, in her capacity as President and Commander-in-
Chief, et al., Respondents; However, such “calling out” power does not authorize the President
to direct the armed forces or the police to enforce laws not related
to lawless violence, invasion or rebellion. The same does not allow
Promulgated:
the President to promulgate decrees with the force and effect
similar or equal to laws as this power is vested by the Constitution
May 3, 2006 with the legislature. Neither is it a license to conduct searches and
seizures or arrests without warrant except in cases provided in the
x —————————————————————————————- x Rules of Court. It is not a sanction to impose any form of prior
restraint on the freedom of the press or expression or to curtail the
CONCURRING OPINION freedom to peaceably assemble or frustrate fundamental
constitutional rights.
YNARES-SANTIAGO, J.:
In the case of Bayan v. Ermita3 this Court thru Justice Adolfo S.
Azcuna emphasized that the right to peaceably assemble and
petition for redress of grievances is, together with freedom of With regard to GO No. 5, I agree that it is unconstitutional insofar
speech, of expression, and of the press, a right that enjoys primacy as it mandates the armed forces and the national police “to prevent
in the realm of constitutional protection. These rights constitute the and suppress acts of terrorism and lawless violence in the country.”
very basis of a functional democratic polity, without which all the There is presently no law enacted by Congress that defines
other rights would be meaningless and unprotected. terrorism, or classifies what acts are punishable as acts of
terrorism. The notion of terrorism, as well as acts constitutive
On the other hand, the direct reference to Section 17, Article XII of thereof, is at best fraught with ambiguity. It is therefore subject to
the Constitution as the constitutional basis for the declaration of a different interpretations by the law enforcement agencies.
state of national emergency is misplaced. This provision can be
found under the article on National Economy and Patrimony which As can be gleaned from the facts, the lack of a clear definition of
presupposes that “national emergency” is of an economic, and not what constitutes “terrorism” have led the law enforcement officers
political, nature. Moreover, the said provision refers to the to necessarily guess at its meaning and differ as to its application
temporary takeover by the State of any privately-owned public giving rise to unrestrained violations of the fundamental
utility or business affected with public interest in times of national guarantees of freedom of peaceable assembly and freedom of the
emergency. In such a case, the takeover is authorized when the press.
public interest so requires and subject to “reasonable terms” which
the State may prescribe. In Kolender v. Lawson,4 the United States Supreme Court nullified
a state statute requiring persons who loitered or wandered on
The use of the word “State” as well as the reference to “reasonable streets to provide “credible and reliable” identification and to
terms” under Section 17, Article XII can only pertain to Congress. account for their presence when requested to do so by a police
In other words, the said provision is not self-executing as to be officer. Writing for the majority, Justice Sandra Day O’Connor
validly invoked by the President without congressional noted that the most important aspect of vagueness doctrine was
authorization. The provision merely declares a state economic the imposition of guidelines that prohibited arbitrary, selective
policy during times of national emergency. As such, it cannot be enforcement on constitutionally suspect basis by police officers.
taken to mean as authorizing the President to exercise “takeover” This rationale for invocation of that doctrine was of special concern
powers pursuant to a declaration of a state of national emergency. in this case because of the potential for arbitrary suppression of
the fundamental liberties concerning freedom of speech and
The President, with all the powers vested in her by Article VII, expression, as well as restriction on the freedom of movement.
cannot arrogate unto herself the power to take over or direct the
operation of any privately owned public utility or business affected Thus, while I recognize that the President may declare a state of
with public interest without Congressional authorization. To do so national emergency as a statement of a factual condition pursuant
would constitute an ultra vires act on the part of the Chief to our ruling in Sanlakas v. Executive Secretary,5 I wish to
Executive, whose powers are limited to the powers vested in her by emphasize that the same does not grant her any additional powers.
Article VII, and cannot extend to Article XII without the approval of Consequently, while PP 1017 is valid as a declaration of a factual
Congress. condition, the provisions which purport to vest in the President
additional powers not theretofore vested in her must be struck
Thus, the President’s authority to act in times of national down. The provision under GO No. 5 ordering the armed forces to
emergency is still subject to the limitations expressly prescribed by carry out measures to prevent or suppress “acts of terrorism” must
Congress. This is a featured component of the doctrine of be declared unconstitutional as well.
separation of powers, specifically, the principle of checks and
balances as applicable to the political branches of government, the Finally, it cannot be gainsaid that government action to stifle
executive and the legislature. constitutional liberties guaranteed under the Bill of Rights cannot
be preemptive in meeting any and all perceived or potential threats
 4
to the life of the nation. Such threats must be actual, or at least  461 U.S. 352 (1983).
gravely imminent, to warrant government to take proper action. To
allow government to preempt the happening of any event would be 5
 G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004,
akin to “putting the cart before the horse,” in a manner of 421 SCRA 656.
speaking. State action is proper only if there is a clear and present
danger of a substantive evil which the state has a right to prevent. 6
 Brandeis, J. , joined by Holmes, J., concurring in Whitney v.
We should bear in mind that in a democracy, constitutional liberties California, 274 U.S. 357 (1927).
must always be accorded supreme importance in the conduct of
daily life. At the heart of these liberties lies freedom of speech and
thought—not merely in the propagation of ideas we love, but more
importantly, in the advocacy of ideas we may oftentimes loathe. As
succinctly articulated by Justice Louis D. Brandeis:

Fear of serious injury cannot alone justify suppression of free

speech and assembly. x x x It is the function of speech to free men
from the bondage of irrational fears. To justify suppression of free
speech there must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to
believe that the evil to be prevented is a serious one. x x x But
even advocacy of violation, however reprehensible morally, is not a
justification for denying free speech where the advocacy falls short
of incitement and there is nothing to indicate that the advocacy
would be immediately acted on. The wide difference between
advocacy and incitement, between preparation and attempt,
between assembling and conspiracy, must be borne in mind. In
order to support a finding of clear and present danger it must be
shown either that immediate serious violence was to be expected
or was advocated, or that the past conduct furnished reason to
believe that such advocacy was then contemplated.6

IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the

petitions.

CONSUELO YNARES-SANTIAGO
Associate Justice

Notes:

1
 Cardozo, B. Nature of Judicial Process, 1921.

2
Palko v. State of Connecticut, 302 U.S. 319 (1937).

3
 G.R. Nos. 169838, 169848, 169881, April 25, 2006.