G.R. No.

171396             May 3, 2006 HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL

GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, CHIEF, Respondents.
GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners, x-------------------------------------x
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER- G.R. No. 171424             May 3, 2006
IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO
CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO
LOREN B. LEGARDA, Petitioner,
SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
vs.
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
NATIONAL POLICE, Respondents.
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP);
x-------------------------------------x GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA,
G.R. No. 171409             May 3, 2006 IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., DECISION

INC., Petitioners,
vs. SANDOVAL-GUTIERREZ, J.:
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
All powers need some restraint; practical adjustments rather than
rigid formula are necessary.1 Superior strength – the use of force –
x-------------------------------------x cannot make wrongs into rights. In this regard, the courts should be
vigilant in safeguarding the constitutional rights of the citizens,
G.R. No. 171485             May 3, 2006 specifically their liberty.

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus
CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, most relevant. He said: "In cases involving liberty, the scales of
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. justice should weigh heavily against government and in favor of the
GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, poor, the oppressed, the marginalized, the dispossessed and the
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, weak." Laws and actions that restrict fundamental rights come to the
ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. courts "with a heavy presumption against their constitutional
ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. validity."2
REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-
BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI These seven (7) consolidated petitions for certiorari and prohibition
JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and
CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners, General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
vs. committed grave abuse of discretion. Petitioners contend that
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., respondent officials of the Government, in their professed efforts to
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO defend and preserve democratic institutions, are actually trampling
SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF upon the very freedom guaranteed and protected by the Constitution.
PNP, Respondents. Hence, such issuances are void for being unconstitutional.

x-------------------------------------x Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the
G.R. No. 171483             May 3, 2006 degree of liberty, without which, law becomes tyranny, with the
degree of law, without which, liberty becomes license?3
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER
C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL On February 24, 2006, as the nation celebrated the 20th Anniversary
FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLU- of the Edsa People Power I, President Arroyo issued PP 1017 declaring
KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. a state of national emergency, thus:
USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
TAN, Petitioners, Republic of the Philippines and Commander-in-Chief of the Armed
vs. Forces of the Philippines, by virtue of the powers vested upon me by
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE Section 18, Article 7 of the Philippine Constitution which states that:
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF "The President. . . whenever it becomes necessary, . . . may call out
OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, (the) armed forces to prevent or suppress. . .rebellion. . .," and in my
AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents. capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order
x-------------------------------------x throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce
G.R. No. 171400             May 3, 2006 obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as
provided in Section 17, Article 12 of the Constitution do hereby
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
declare a State of National Emergency.
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO,  Respondents. She cited the following facts as bases:

G.R. No. 171489             May 3, 2006 WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right,
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
represented by military adventurists – the historical enemies of the
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,
democratic Philippine State – who are now in a tactical alliance and
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE,
engaged in a concerted and systematic conspiracy, over a broad front,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
to bring down the duly constituted Government elected in May 2004;
OF THE PHILIPPINES (IBP), Petitioners,
vs.

1
WHEREAS, these conspirators have repeatedly tried to bring down the On March 3, 2006, exactly one week after the declaration of a state of
President; national emergency and after all these petitions had been filed, the
President lifted PP 1017. She issued Proclamation No. 1021 which
WHEREAS, the claims of these elements have been recklessly reads:
magnified by certain segments of the national media;
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article
WHEREAS, this series of actions is hurting the Philippine State – by XII of the Constitution, Proclamation No. 1017 dated February 24,
obstructing governance including hindering the growth of the 2006, was issued declaring a state of national emergency;
economy and sabotaging the people’s confidence in government and
their faith in the future of this country; WHEREAS, by virtue of General Order No.5 and No.6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017,
WHEREAS, these actions are adversely affecting the economy; the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well
WHEREAS, these activities give totalitarian forces of both the
as any act of rebellion and to undertake such action as may be
extreme Left and extreme Right the opening to intensify their
necessary;
avowed aims to bring down the democratic Philippine State;

WHEREAS, the AFP and PNP have effectively prevented, suppressed

WHEREAS, Article 2, Section 4 of the our Constitution makes the
and quelled the acts lawless violence and rebellion;
defense and preservation of the democratic institutions and the State
the primary duty of Government;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by
WHEREAS, the activities above-described, their consequences,
law, hereby declare that the state of national emergency has ceased
ramifications and collateral effects constitute a clear and present
to exist.
danger to the safety and the integrity of the Philippine State and of
the Filipino people;
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive
On the same day, the President issued G. O. No. 5 implementing PP
issuances was the conspiracy among some military officers, leftist
1017, thus:
insurgents of the New People’s Army (NPA), and some members of
the political opposition in a plot to unseat or assassinate President
WHEREAS, over these past months, elements in the political Arroyo.4 They considered the aim to oust or assassinate the President
opposition have conspired with authoritarians of the extreme Left, and take-over the reigns of government as a clear and present danger.
represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists - the historical enemies of the democratic
During the oral arguments held on March 7, 2006, the Solicitor
Philippine State – and who are now in a tactical alliance and engaged
General specified the facts leading to the issuance of PP 1017 and G.O.
in a concerted and systematic conspiracy, over a broad front, to bring
No. 5. Significantly, there was no refutation from petitioners’
down the duly-constituted Government elected in May 2004;
counsels.

WHEREAS, these conspirators have repeatedly tried to bring down our

The Solicitor General argued that the intent of the Constitution is to
republican government;
give full discretionary powers to the President in determining the
necessity of calling out the armed forces. He emphasized that none of
WHEREAS, the claims of these elements have been recklessly the petitioners has shown that PP 1017 was without factual bases.
magnified by certain segments of the national media; While he explained that it is not respondents’ task to state the facts
behind the questioned Proclamation, however, they are presenting
WHEREAS, these series of actions is hurting the Philippine State by the same, narrated hereunder, for the elucidation of the issues.
obstructing governance, including hindering the growth of the
economy and sabotaging the people’s confidence in the government On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
and their faith in the future of this country; Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang,
members of the Magdalo Group indicted in the Oakwood mutiny,
WHEREAS, these actions are adversely affecting the economy; escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all
WHEREAS, these activities give totalitarian forces; of both the costs. They called upon the people to "show and proclaim our
extreme Left and extreme Right the opening to intensify their avowed displeasure at the sham regime. Let us demonstrate our disgust, not
aims to bring down the democratic Philippine State; only by going to the streets in protest, but also by wearing red bands
on our left arms." 5

WHEREAS, Article 2, Section 4 of our Constitution makes the defense

and preservation of the democratic institutions and the State the On February 17, 2006, the authorities got hold of a document entitled
primary duty of Government; "Oplan Hackle I  " which detailed plans for bombings and attacks
during the Philippine Military Academy Alumni Homecoming in Baguio
City. The plot was to assassinate selected targets including some
WHEREAS, the activities above-described, their consequences, cabinet members and President Arroyo herself.6 Upon the advice of
ramifications and collateral effects constitute a clear and present her security, President Arroyo decided not to attend the Alumni
danger to the safety and the integrity of the Philippine State and of Homecoming. The next day, at the height of the celebration, a bomb
the Filipino people; was found and detonated at the PMA parade ground.

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued On February 21, 2006, Lt. San Juan was recaptured in a communist
declaring a State of National Emergency; safehouse in Batangas province. Found in his possession were two (2)
flash disks containing minutes of the meetings between members of
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the the Magdalo Group and the National People’s Army (NPA), a tape
powers vested in me under the Constitution as President of the recorder, audio cassette cartridges, diskettes, and copies of subversive
Republic of the Philippines, and Commander-in-Chief of the Republic documents.7 Prior to his arrest, Lt. San Juan announced through DZRH
of the Philippines, and pursuant to Proclamation No. 1017 dated that the "Magdalo’s D-Day would be on February 24, 2006, the 20th
February 24, 2006, do hereby call upon the Armed Forces of the Anniversary of Edsa I."
Philippines (AFP) and the Philippine National Police (PNP), to prevent
and suppress acts of terrorism and lawless violence in the country; On February 23, 2006, PNP Chief Arturo Lomibao intercepted
information that members of the PNP- Special Action Force were
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, planning to defect. Thus, he immediately ordered SAF Commanding
as well as the officers and men of the AFP and PNP, to immediately General Marcelino Franco, Jr. to "disavow" any defection. The latter
carry out the necessary and appropriate actions and measures to promptly obeyed and issued a public statement: "All SAF units are
suppress and prevent acts of terrorism and lawless violence.

2
under the effective control of responsible and trustworthy officers with Manila with the intention of converging at the EDSA shrine. Those
proven integrity and unquestionable loyalty." who were already near the EDSA site were violently dispersed by huge
clusters of anti-riot police. The well-trained policemen used
On the same day, at the house of former Congressman Peping truncheons, big fiber glass shields, water cannons, and tear gas to stop
Cojuangco, President Cory Aquino’s brother, businessmen and mid- and break up the marching groups, and scatter the massed
level government officials plotted moves to bring down the Arroyo participants. The same police action was used against the protesters
administration. Nelly Sindayen of TIME Magazine reported that Pastor marching forward to Cubao, Quezon City and to the corner of
Saycon, longtime Arroyo critic, called a U.S. government official about Santolan Street and EDSA. That same evening, hundreds of riot
his group’s plans if President Arroyo is ousted. Saycon also phoned a policemen broke up an EDSA celebration rally held along Ayala Avenue
man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, and Paseo de Roxas Street in Makati City.12
Commander of the Army’s elite Scout Ranger. Lim said "it was all
systems go for the planned movement against Arroyo."8 According to petitioner Kilusang Mayo Uno, the police cited PP 1017
as the ground for the dispersal of their assemblies.
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin
confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces During the dispersal of the rallyists along EDSA, police arrested
of the Philippines (AFP), that a huge number of soldiers would join the (without warrant) petitioner Randolf S. David, a professor at the
rallies to provide a critical mass and armed component to the Anti- University of the Philippines and newspaper columnist. Also arrested
Arroyo protests to be held on February 24, 2005. According to these was his companion, Ronald Llamas, president of party-list Akbayan.
two (2) officers, there was no way they could possibly stop the
soldiers because they too, were breaking the chain of command to At around 12:20 in the early morning of February 25, 2006, operatives
join the forces foist to unseat the President. However, Gen. Senga has of the Criminal Investigation and Detection Group (CIDG) of the PNP,
remained faithful to his Commander-in-Chief and to the chain of on the basis of PP 1017 and G.O. No. 5, raided the Daily
command. He immediately took custody of B/Gen. Lim and directed Tribune offices in Manila. The raiding team confiscated news stories by
Col. Querubin to return to the Philippine Marines Headquarters in Fort reporters, documents, pictures, and mock-ups of the Saturday issue.
Bonifacio. Policemen from Camp Crame in Quezon City were stationed inside the
editorial and business offices of the newspaper; while policemen from
Earlier, the CPP-NPA called for intensification of political and the Manila Police District were stationed outside the building.13
revolutionary work within the military and the police establishments
in order to forge alliances with its members and key officials. NPA A few minutes after the search and seizure at the Daily Tribune offices,
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist the police surrounded the premises of another pro-opposition paper,
Party and revolutionary movement and the entire people look forward Malaya, and its sister publication, the tabloid Abante.
to the possibility in the coming year of accomplishing its immediate
task of bringing down the Arroyo regime; of rendering it to weaken
The raid, according to Presidential Chief of Staff Michael Defensor,
and unable to rule that it will not take much longer to end it."9
is  "meant to show a ‘strong presence,’ to tell media outlets not to
connive or do anything that would help the rebels in bringing down
On the other hand, Cesar Renerio, spokesman for the National this government." The PNP warned that it would take over any media
Democratic Front (NDF) at North Central Mindanao, publicly organization that would not follow "standards set by the government
announced: "Anti-Arroyo groups within the military and police are during the state of national emergency."  Director General Lomibao
growing rapidly, hastened by the economic difficulties suffered by the stated that "if they do not follow the standards – and the standards
families of AFP officers and enlisted personnel who undertake counter- are - if they would contribute to instability in the government, or if
insurgency operations in the field." He claimed that with the forces of they do not subscribe to what is in General Order No. 5 and Proc. No.
the national democratic movement, the anti-Arroyo conservative 1017 – we will recommend a ‘takeover.’" National
political parties, coalitions, plus the groups that have been reinforcing Telecommunications’ Commissioner Ronald Solis urged television and
since June 2005, it is probable that the President’s ouster is nearing its radio networks to "cooperate" with the government for the duration
concluding stage in the first half of 2006. of the state of national emergency. He asked for "balanced
reporting" from broadcasters when covering the events surrounding
Respondents further claimed that the bombing of telecommunication the coup attempt foiled by the government. He warned that his
towers and cell sites in Bulacan and Bataan was also considered as agency will not hesitate to recommend the closure of any broadcast
additional factual basis for the issuance of PP 1017 and G.O. No. 5. So outfit that violates rules set out for media coverage when the national
is the raid of an army outpost in Benguet resulting in the death of security is threatened.14
three (3) soldiers. And also the directive of the Communist Party of
the Philippines ordering its front organizations to join 5,000 Metro Also, on February 25, 2006, the police arrested Congressman Crispin
Manila radicals and 25,000 more from the provinces in mass Beltran, representing the Anakpawis Party and Chairman of Kilusang
protests.10 Mayo Uno  (KMU), while leaving his farmhouse in Bulacan. The police
showed a warrant for his arrest dated 1985. Beltran’s lawyer
By midnight of February 23, 2006, the President convened her security explained that the warrant, which stemmed from a case of inciting to
advisers and several cabinet members to assess the gravity of the rebellion filed during the Marcos regime, had long been quashed.
fermenting peace and order situation. She directed both the AFP and Beltran, however, is not a party in any of these petitions.
the PNP to account for all their men and ensure that the chain of
command remains solid and undivided. To protect the young students When members of petitioner KMU went to Camp Crame to visit
from any possible trouble that might break loose on the streets, the Beltran, they were told they could not be admitted because of PP
President suspended classes in all levels in the entire National Capital 1017 and G.O. No. 5. Two members were arrested and detained, while
Region. the rest were dispersed by the police.

For their part, petitioners cited the events that followed after the Bayan Muna Representative Satur Ocampo eluded arrest when the
issuance of PP 1017 and G.O. No. 5. police went after him during a public forum at the Sulo Hotel in
Quezon City. But his two drivers, identified as Roel and Art, were
Immediately, the Office of the President announced the cancellation taken into custody.
of all programs and activities related to the 20th anniversary
celebration of Edsa People Power I; and revoked the permits to hold Retired Major General Ramon Montaño, former head of the Philippine
rallies issued earlier by the local governments. Justice Secretary Raul Constabulary, was arrested while with his wife and golfmates at the
Gonzales stated that political rallies, which to the President’s mind Orchard Golf and Country Club in Dasmariñas, Cavite.
were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that
Attempts were made to arrest Anakpawis Representative Satur
"warrantless arrests and take-over of facilities, including media, can
Ocampo, Representative Rafael Mariano, Bayan Muna Representative
already be implemented."11
Teodoro Casiño and Gabriela Representative Liza Maza. Bayan
Muna Representative Josel Virador was arrested at the PAL Ticket
Undeterred by the announcements that rallies and public assemblies Office in Davao City. Later, he was turned over to the custody of the
would not be allowed, groups of protesters (members of Kilusang House of Representatives where the "Batasan 5" decided to stay
Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang indefinitely.
Mayo Uno  [NAFLU-KMU]), marched from various parts of Metro
3
Let it be stressed at this point that the alleged violations of the rights A. PROCEDURAL:
of Representatives Beltran, Satur Ocampo, et al., are not being raised
in these petitions. 1) Whether the issuance of PP 1021 renders the petitions
moot and academic.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the
state of national emergency has ceased to exist. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.),
In the interim, these seven (7) petitions challenging the and 171424 (Legarda) have legal standing.
constitutionality of PP 1017 and G.O. No. 5 were filed with this Court
against the above-named respondents. Three (3) of these petitions B. SUBSTANTIVE:
impleaded President Arroyo as respondent.
1) Whetherthe Supreme Court can review the factual bases
In  G.R. No. 171396, petitioners Randolf S. David,  et al. assailed PP of PP 1017.
1017 on the grounds that (1) it encroaches on the emergency powers
of Congress; (2) itis a subterfuge to avoid the constitutional
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
requirements for the imposition of martial law; and (3) it violates the
constitutional guarantees of freedom of the press, of speech and of
assembly. a. Facial Challenge

In G.R. No. 171409, petitioners Ninez Cacho-Olivares b. Constitutional Basis

and Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding
the Daily Tribune offices as a clear case of "censorship" or "prior c. As Applied Challenge
restraint." They also claimed that the term "emergency" refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is A. PROCEDURAL
"absolutely no emergency" that warrants the issuance of PP 1017.

First, we must resolve the procedural roadblocks.

In G.R. No. 171485,  petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the House
of Representatives, including Representatives Satur Ocampo, Rafael I- Moot and Academic Principle
Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted
that PP 1017 and G.O. No. 5 constitute "usurpation of legislative One of the greatest contributions of the American system to this
powers"; "violation of freedom of expression" and "a declaration of country is the concept of judicial review enunciated in Marbury v.
martial law." They alleged that President Arroyo "gravely abused her Madison.21 This concept rests on the extraordinary simple foundation
discretion in calling out the armed forces without clear and verifiable --
factual basis of the possibility of lawless violence and a showing that
there is necessity to do so." The Constitution is the supreme law. It was ordained by the people,
the ultimate source of all political authority. It confers limited powers
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members on the national government. x x x If the government consciously or
averred that PP 1017 and G.O. No. 5 are unconstitutional unconsciously oversteps these limitations there must be some
because (1) they arrogate unto President Arroyo the power to enact authority competent to hold it in control, to thwart its
laws and decrees; (2) their issuance was without factual basis; unconstitutional attempt, and thus to vindicate and preserve
and (3) they violate freedom of expression and the right of the people inviolate the will of the people as expressed in the Constitution. This
to peaceably assemble to redress their grievances. power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
In G.R. No. 171400,  petitioner Alternative Law Groups, Inc. (ALGI)
alleged that PP 1017 and G.O. No. 5 are unconstitutional because they But the power of judicial review does not repose upon the courts a
violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article "self-starting capacity."23 Courts may exercise such power only when
III, (c) Section 2319 of Article VI, and (d) Section 1720 of Article XII of the the following requisites are present: first,  there must be an actual
Constitution. case or controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged the earliest opportunity; and fourth, the decision of the constitutional
that PP 1017 is an "arbitrary and unlawful exercise by the President of question must be necessary to the determination of the case itself.24
her Martial Law powers." And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that "it amounts to an Respondents maintain that the first and second requisites are absent,
exercise by the President of emergency powers without congressional hence, we shall limit our discussion thereon.
approval." In addition, petitioners asserted that PP 1017 "goes beyond
the nature and function of a proclamation as defined under the An actual case or controversy involves a conflict of legal right, an
Revised Administrative Code." opposite legal claims susceptible of judicial resolution. It is "definite
and concrete, touching the legal relations of parties having adverse
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained legal interest;" a real and substantial controversy admitting of specific
that PP 1017 and G.O. No. 5 are "unconstitutional for being violative relief.25 The Solicitor General refutes the existence of such actual case
of the freedom of expression, including its cognate rights such as or controversy, contending that the present petitions were rendered
freedom of the press and the right to access to information on matters "moot and academic" by President Arroyo’s issuance of PP 1021.
of public concern, all guaranteed under Article III, Section 4 of the
1987 Constitution." In this regard, she stated that these issuances Such contention lacks merit.
prevented her from fully prosecuting her election protest pending
before the Presidential Electoral Tribunal.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,26 so that a declaration
In respondents’ Consolidated Comment, the Solicitor General thereon would be of no practical use or value.27 Generally, courts
countered that: first, the petitions should be dismissed for being decline jurisdiction over such case28 or dismiss it on ground of
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 mootness.29
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for
The Court holds that President Arroyo’s issuance of PP 1021 did not
petitioners to implead President Arroyo as respondent; fourth, PP
render the present petitions moot and academic. During the eight (8)
1017 has constitutional and legal basis; and fifth, PP 1017 does not
days that PP 1017 was operative, the police officers, according to
violate the people’s right to free expression and redress of grievances.
petitioners, committed illegal acts in implementing it. Are PP 1017
and G.O. No. 5 constitutional or valid? Do they justify these alleged
On March 7, 2006, the Court conducted oral arguments and heard the illegal acts?  These are the vital issues that must be resolved in the
parties on the above interlocking issues which may be summarized as present petitions. It must be stressed that "an unconstitutional act is
follows:

4
not a law, it confers no rights, it imposes no duties, it affords no in Tileston v. Ullman.43 The same Court ruled that for a private
protection; it is in legal contemplation, inoperative."30 individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a
The "moot and academic" principle is not a magical formula that can direct injury as a result of that action, and it is not sufficient that he
automatically dissuade the courts in resolving a case. Courts will has a general interest common to all members of the public.
decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution;31 second, the exceptional character of This Court adopted the "direct injury" test in our jurisdiction.
the situation and the paramount public interest is In People v. Vera,44 it held that the person who impugns the validity of
involved;32  third,  when constitutional issue raised requires a statute must have "a personal and substantial interest in the case
formulation of controlling principles to guide the bench, the bar, and such that he has sustained, or will sustain direct injury as a result."
the public;33 and fourth, the case is capable of repetition yet evading The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
review.34 President of the Senate,45 Manila Race Horse Trainers’ Association v.
De la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese
All the foregoing exceptions are present here and justify this Court’s League of the Philippines v. Felix.48
assumption of jurisdiction over the instant petitions. Petitioners
alleged that the issuance of PP 1017 and G.O. No. 5 violates the However, being a mere procedural technicality, the requirement
Constitution. There is no question that the issues being raised affect of locus standi may be waived by the Court in the exercise of its
the public’s interest, involving as they do the people’s basic rights to discretion. This was done in the 1949 Emergency Powers
freedom of expression, of assembly and of the press. Moreover, the Cases, Araneta v. Dinglasan,49 where the "transcendental
Court has the duty to formulate guiding and controlling constitutional importance" of the cases prompted the Court to act liberally. Such
precepts, doctrines or rules. It has the symbolic function of educating liberality was neither a rarity nor accidental. In Aquino v.
the bench and the bar, and in the present petitions, the military and Comelec,50 this Court resolved to pass upon the issues raised due to
the police, on the extent of the protection given by constitutional the "far-reaching implications" of the petition notwithstanding its
guarantees.35 And lastly, respondents’ contested actions are capable categorical statement that petitioner therein had no personality to file
of repetition. Certainly, the petitions are subject to judicial review. the suit. Indeed, there is a chain of cases where this liberal policy has
been observed, allowing ordinary citizens, members of Congress, and
In their attempt to prove the alleged mootness of this case, civic organizations to prosecute actions involving the constitutionality
respondents cited Chief Justice Artemio V. Panganiban’s Separate or validity of laws, regulations and rulings.51
Opinion in Sanlakas v. Executive Secretary.36 However, they failed to
take into account the Chief Justice’s very statement that an otherwise Thus, the Court has adopted a rule that even where the petitioners
"moot" case may still be decided "provided the party raising it in a have failed to show direct injury, they have been allowed to sue under
proper case has been and/or continues to be prejudiced or damaged the principle of "transcendental importance." Pertinent are the
as a direct result of its issuance." The present case falls right within following cases:
this exception to the mootness rule pointed out by the Chief Justice.
(1) Chavez v. Public Estates Authority,52 where the Court
II- Legal Standing ruled that the enforcement of the constitutional right to
information and the equitable diffusion of natural
In view of the number of petitioners suing in various personalities, the resources are matters of transcendental importance which
Court deems it imperative to have a more than passing discussion on clothe the petitioner with locus standi;
legal standing or locus standi.
(2) Bagong Alyansang Makabayan v. Zamora, 53 wherein the
Locus standi is defined as "a right of appearance in a court of justice Court held that "given the transcendental importance of
on a given question."37 In private suits, standing is governed by the the issues involved, the Court may relax the standing
"real-parties-in interest" rule as contained in Section 2, Rule 3 of the requirements and allow the suit to prosper despite the lack
1997 Rules of Civil Procedure, as amended. It provides that "every of direct injury to the parties seeking judicial review" of the
action must be prosecuted or defended in the name of the real party Visiting Forces Agreement;
in interest." Accordingly, the "real-party-in interest" is "the party who
stands to be benefited or injured by the judgment in the suit or the (3) Lim v. Executive Secretary,54 while the Court noted that
party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s the petitioners may not file suit in their capacity as
standing is based on his own right to the relief sought. taxpayers absent a showing that "Balikatan 02-01" involves
the exercise of Congress’ taxing or spending powers, it
The difficulty of determining locus standi  arises in public suits. Here, reiterated its ruling in Bagong Alyansang Makabayan v.
the plaintiff who asserts a "public right" in assailing an allegedly illegal Zamora,55that in cases of transcendental importance, the
official action, does so as a representative of the general public. He cases must be settled promptly and definitely and standing
may be a person who is affected no differently from any other person. requirements may be relaxed.
He could be suing as a "stranger," or in the category of a "citizen," or
‘taxpayer." In either case, he has to adequately show that he is By way of summary, the following rules may be culled from the cases
entitled to seek judicial protection. In other words, he has to make out decided by this Court. Taxpayers, voters, concerned citizens, and
a sufficient interest in the vindication of the public order and the legislators may be accorded standing to sue, provided that the
securing of relief as a "citizen" or "taxpayer. following requirements are met:

Case law in most jurisdictions now allows both "citizen" and (1) the cases involve constitutional issues;
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk,39 where it was held that the plaintiff in a (2) for taxpayers, there must be a claim of illegal
taxpayer’s suit is in a different category from the plaintiff in a citizen’s disbursement of public funds or that the tax measure is
suit. In the former, the plaintiff is affected by the expenditure of unconstitutional;
public funds, while in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme Court in People ex
(3) for voters, there must be a showing of obvious interest
rel Case v. Collins:40 "In matter of mere public right, however…the
in the validity of the election law in question;
people are the real parties…It is at least the right, if not the duty, of
every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied." (4) for concerned citizens, there must be a showing that the
With respect to taxpayer’s suits, Terr v. Jordan41 held that "the right of issues raised are of transcendental importance which must
a citizen and a taxpayer to maintain an action in courts to restrain be settled early; and
the unlawful use of public funds to his injury cannot be denied."
(5) for legislators, there must be a claim that the official
However, to prevent just about any person from seeking judicial action complained of infringes upon their prerogatives as
interference in any official policy or act with which he disagreed with, legislators.
and thus hinders the activities of governmental agencies engaged in
public service, the United State Supreme Court laid down the more Significantly, recent decisions show a certain toughening in the Court’s
stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed attitude toward legal standing.
5
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status PP 1017 and G.O. No. 5. Her claim that she is a media personality will
of Kilosbayan as a people’s organization does not give it the requisite not likewise aid her because there was no showing that the
personality to question the validity of the on-line lottery contract, enforcement of these issuances prevented her from pursuing her
more so where it does not raise any issue of constitutionality. occupation. Her submission that she has pending electoral protest
Moreover, it cannot sue as a taxpayer absent any allegation that before the Presidential Electoral Tribunal is likewise of no relevance.
public funds are being misused. Nor can it sue as a concerned citizen She has not sufficiently shown that PP 1017 will affect the proceedings
as it does not allege any specific injury it has suffered. or result of her case. But considering once more the transcendental
importance of the issue involved, this Court may relax the standing
In Telecommunications and Broadcast Attorneys of the Philippines, rules.
Inc. v. Comelec,57 the Court reiterated the "direct injury" test with
respect to concerned citizens’ cases involving constitutional issues. It It must always be borne in mind that the question of locus standi is
held that "there must be a showing that the citizen personally but corollary to the bigger question of proper exercise of judicial
suffered some actual or threatened injury arising from the alleged power. This is the underlying legal tenet of the "liberality doctrine" on
illegal official act." legal standing. It cannot be doubted that the validity of PP No. 1017
and G.O. No. 5 is a judicial question which is of paramount importance
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban to the Filipino people. To paraphrase Justice Laurel, the whole of
ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it Philippine society now waits with bated breath the ruling of this Court
had not demonstrated any injury to itself or to its leaders, members or on this very critical matter. The petitions thus call for the application
supporters. of the "transcendental importance" doctrine, a relaxation of the
standing requirements for the petitioners in the "PP 1017
cases."1avvphil.net
In Sanlakas v. Executive Secretary,59 the Court ruled that only the
petitioners who are members of Congress have standing to sue, as
they claim that the President’s declaration of a state of rebellion is a This Court holds that all the petitioners herein have locus standi.
usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido Incidentally, it is not proper to implead President Arroyo as
Manggagawa, and Social Justice Society, the Court declared them to respondent. Settled is the doctrine that the President, during his
be devoid of standing, equating them with the LDP in Lacson. tenure of office or actual incumbency,67 may not be sued in any  civil
or criminal case, and there is no need to provide for it in the
Now, the application of the above principles to the present petitions. Constitution or law. It will degrade the dignity of the high office of the
President, the Head of State, if he can be dragged into court litigations
while serving as such. Furthermore, it is important that he be freed
The locus standi of petitioners in G.R. No. 171396, particularly David
from any form of harassment, hindrance or distraction to enable him
and Llamas, is beyond doubt. The same holds true with petitioners
to fully attend to the performance of his official duties and functions.
in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc.
Unlike the legislative and judicial branch, only one constitutes the
They alleged "direct injury" resulting from "illegal arrest" and
executive branch and anything which impairs his usefulness in the
"unlawful search" committed by police operatives pursuant to PP
discharge of the many great and important duties imposed upon him
1017. Rightly so, the Solicitor General does not question their legal
by the Constitution necessarily impairs the operation of the
standing.
Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable
In G.R. No. 171485, the opposition Congressmen alleged there was to the people68 but he may be removed from office only in the mode
usurpation of legislative powers. They also raised the issue of whether provided by law and that is by impeachment.69
or not the concurrence of Congress is necessary whenever the
alarming powers incident to Martial Law are used. Moreover, it is in
B. SUBSTANTIVE
the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the
Court the alleged violations of their basic rights. I. Review of Factual Bases

In G.R. No. 171400, (ALGI), this Court applied the liberality rule Petitioners maintain that PP 1017 has no factual basis. Hence, it was
in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa not "necessary" for President Arroyo to issue such Proclamation.
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian The issue of whether the Court may review the factual bases of the
Reform,62 Basco v. Philippine Amusement and Gaming President’s exercise of his Commander-in-Chief power has reached its
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a distilled point - from the indulgent days of Barcelon v.
public right, it is sufficient that the petitioner is a citizen and has an Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang
interest in the execution of the laws. v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-
of-war always cuts across the line defining "political questions,"
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 particularly those questions "in regard to which full discretionary
violated its right to peaceful assembly may be deemed sufficient to authority has been delegated to the legislative or executive branch of
give it legal standing. Organizations may be granted standing to the government."75 Barcelon and Montenegro were in unison in
assert the rights of their members.65 We take judicial notice of the declaring that the authority to decide whether an exigency has arisen
announcement by the Office of the President banning all rallies and belongs to the President and his decision is final and conclusive on
canceling all permits for public assemblies following the issuance of PP the courts. Lansang  took the opposite view. There, the members of
1017 and G.O. No. 5. the Court were unanimous in the conviction that the Court has the
authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of
In G.R. No. 171489, petitioners,  Cadiz et al., who are national officers
separation of powers, it shifted the focus to the system of checks
of the Integrated Bar of the Philippines (IBP) have no legal standing,
and balances, "under which the President is supreme, x x x
having failed to allege any direct or potential injury which the IBP as
only if and when he acts within the sphere allotted to him by the
an institution or its members may suffer as a consequence of the
Basic Law, and the authority to determine whether or not he has so
issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the
acted is vested in the Judicial Department, which in this respect, is, in
Philippines v. Zamora,66 the Court held that the mere invocation by the
turn, constitutionally supreme."76 In 1973, the unanimous Court
IBP of its duty to preserve the rule of law and nothing more, while
of Lansang was divided in Aquino v. Enrile.77 There, the Court was
undoubtedly true, is not sufficient to clothe it with standing in this
almost evenly divided on the issue of whether the validity of the
case. This is too general an interest which is shared by other groups
imposition of Martial Law is a political or justiciable question.78 Then
and the whole citizenry. However, in view of the transcendental
came Garcia-Padilla v. Enrile which greatly diluted Lansang. It
importance of the issue, this Court declares that petitioner have locus
declared that there is a need to re-examine the latter case,
standi.
ratiocinating that "in times of war or national emergency, the
President must be given absolute control for the very life of the
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to nation and the government is in great peril. The President, it
file the instant petition as there are no allegations of illegal intoned, is answerable only to his conscience, the People, and
disbursement of public funds. The fact that she is a former Senator is God."79
of no consequence. She can no longer sue as a legislator on the
allegation that her prerogatives as a lawmaker have been impaired by
6
The Integrated Bar of the Philippines v. Zamora 80 -- a recent case most The inflexibility of the laws, which prevents them from adopting
pertinent to these cases at bar -- echoed a principle similar themselves to circumstances, may, in certain cases, render them
to Lansang.  While the Court considered the President’s "calling-out" disastrous and make them bring about, at a time of crisis, the ruin of
power as a discretionary power solely vested in his wisdom, it stressed the State…
that "this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it It is wrong therefore to wish to make political institutions as strong as
was exercised in a manner constituting grave abuse of to render it impossible to suspend their operation. Even Sparta
discretion."This ruling is mainly a result of the Court’s reliance on allowed its law to lapse...
Section 1, Article VIII of 1987 Constitution which fortifies the authority
of the courts to determine in an appropriate action the validity of the
If the peril is of such a kind that the paraphernalia of the laws are an
acts of the political departments. Under the new definition of judicial
obstacle to their preservation, the method is to nominate a supreme
power, the courts are authorized not only "to settle actual
lawyer, who shall silence all the laws and suspend for a moment the
controversies involving rights which are legally demandable and
sovereign authority. In such a case, there is no doubt about the
enforceable," but also "to determine whether or not there has been
general will, and it clear that the people’s first intention is that the
a grave abuse of discretion amounting to lack or excess of
State shall not perish.86
jurisdiction on the part of any branch or instrumentality of the
government." The latter part of the authority represents a broadening
of judicial power to enable the courts of justice to review what was Rosseau did not fear the abuse of the emergency dictatorship or
before a forbidden territory, to wit, the discretion of the political "supreme magistracy" as he termed it. For him, it would more likely
departments of the government.81 It speaks of judicial prerogative not be cheapened by "indiscreet use." He was unwilling to rely upon an
only in terms of power but also of duty.82 "appeal to heaven." Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship.87
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 Stuart Mill concluded his ardent defense of representative
further than to satisfy the Court not that the President’s decision government: "I am far from condemning, in cases of extreme
is correct," but that "the President did not act arbitrarily." Thus, the necessity, the assumption of absolute power in the form of a
standard laid down is not correctness, but temporary dictatorship."88
arbitrariness.83 In Integrated Bar of the Philippines, this Court further
ruled that "it is incumbent upon the petitioner to show that the Nicollo Machiavelli’s view of emergency powers, as one element in
President’s decision is totally bereft of factual basis" and that if he the whole scheme of limited government, furnished an ironic contrast
fails, by way of proof, to support his assertion, then "this Court cannot to the Lockean theory of prerogative. He recognized and attempted to
undertake an independent investigation beyond the pleadings." bridge this chasm in democratic political theory, thus:

Petitioners failed to show that President Arroyo’s exercise of the Now, in a well-ordered society, it should never be necessary to resort
calling-out power, by issuing PP 1017, is totally bereft of factual basis. to extra –constitutional measures; for although they may for a time be
A reading of the Solicitor General’s Consolidated Comment and beneficial, yet the precedent is pernicious, for if the practice is once
Memorandum shows a detailed narration of the events leading to the established for good objects, they will in a little while be disregarded
issuance of PP 1017, with supporting reports forming part of the under that pretext but for evil purposes. Thus, no republic will ever be
records. Mentioned are the escape of the Magdalo Group, their perfect if she has not by law provided for everything, having a remedy
audacious threat of the Magdalo D-Day, the defections in the military, for every emergency and fixed rules for applying it.89
particularly in the Philippine Marines, and the reproving statements
from the communist leaders. There was also the Minutes of the Machiavelli – in contrast to Locke, Rosseau and Mill – sought to
Intelligence Report and Security Group of the Philippine Army showing incorporate into the constitution a regularized system of standby
the growing alliance between the NPA and the military. Petitioners emergency powers to be invoked with suitable checks and controls in
presented nothing to refute such events. Thus, absent any contrary time of national danger. He attempted forthrightly to meet the
allegations, the Court is convinced that the President was justified in problem of combining a capacious reserve of power and speed and
issuing PP 1017 calling for military aid. vigor in its application in time of emergency, with effective
constitutional restraints.90
Indeed, judging the seriousness of the incidents, President Arroyo was
not expected to simply fold her arms and do nothing to prevent or Contemporary political theorists, addressing themselves to the
suppress what she believed was lawless violence, invasion or problem of response to emergency by constitutional democracies,
rebellion. However, the exercise of such power or duty must not stifle have employed the doctrine of constitutional dictatorship.91 Frederick
liberty. M. Watkins saw "no reason why absolutism should not be used as a
means for the defense of liberal institutions," provided it "serves to
II. Constitutionality of PP 1017 and G.O. No. 5 protect established institutions from the danger of permanent injury
Doctrines of Several Political Theorists in a period of temporary emergency and is followed by a prompt
on the Power of the President in Times of Emergency return to the previous forms of political life."92 He recognized the two
(2) key elements of the problem of emergency governance, as well as
This case brings to fore a contentious subject -- the power of the all constitutional governance: increasing administrative powers of the
President in times of emergency. A glimpse at the various political executive, while at the same time "imposing limitation upon that
theories relating to this subject provides an adequate backdrop for power."93 Watkins placed his real faith in a scheme of constitutional
our ensuing discussion. dictatorship. These are the conditions of success of such a
dictatorship: "The period of dictatorship must be relatively short…
Dictatorship should always be strictly legitimate in character…Final
John Locke, describing the architecture of civil government, called
authority to determine the need for dictatorship in any given case
upon the English doctrine of prerogative to cope with the problem of
must never rest with the dictator himself…"94 and the objective of
emergency. In times of danger to the nation, positive law enacted by
such an emergency dictatorship should be "strict political
the legislature might be inadequate or even a fatal obstacle to the
conservatism."
promptness of action necessary to avert catastrophe. In these
situations, the Crown retained a prerogative "power to act according
to discretion for the public good, without the proscription of the law Carl J. Friedrich cast his analysis in terms similar to those of
and sometimes even against it."84 But Locke recognized that this Watkins.95 "It is a problem of concentrating power – in a government
moral restraint might not suffice to avoid abuse of prerogative where power has consciously been divided – to cope with… situations
powers. Who shall judge the need for resorting to the prerogative of unprecedented magnitude and gravity. There must be a broad
and how may its abuse be avoided? Here, Locke readily admitted grant of powers, subject to equally strong limitations as to who shall
defeat, suggesting that "the people have no other remedy in this, as exercise such powers, when, for how long, and to what
in all other cases where they have no judge on earth, but to appeal end."96 Friedrich, too, offered criteria for judging the adequacy of any
to Heaven."85 of scheme of emergency powers, to wit: "The emergency executive
must be appointed by constitutional means – i.e., he must be
legitimate; he should not enjoy power to determine the existence of
Jean-Jacques Rousseau also assumed the need for temporary
an emergency; emergency powers should be exercised under a strict
suspension of democratic processes of government in time of
time limitation; and last, the objective of emergency action must be
emergency. According to him:
the defense of the constitutional order."97
7
Clinton L. Rossiter, after surveying the history of the employment of insisted that the historical and proper test of constitutionalism was
emergency powers in Great Britain, France, Weimar, Germany and the the existence of adequate processes for keeping government
United States, reverted to a description of a scheme of "constitutional responsible. He refused to equate constitutionalism with the
dictatorship" as solution to the vexing problems presented by enfeebling of government by an exaggerated emphasis upon
emergency.98 Like Watkins and Friedrich, he stated a priori the separation of powers and substantive limitations on governmental
conditions of success of the "constitutional dictatorship," thus: power. He found that the really effective checks on despotism have
consisted not in the weakening of government but, but rather in
1) No general regime or particular institution of the limiting of it; between which there is a great and very significant
constitutional dictatorship should be initiated unless it is difference. In associating constitutionalism with "limited" as
necessary or even indispensable to the preservation of the distinguished from "weak" government, McIlwain meant
State and its constitutional order… government limited to the orderly procedure of law as opposed to
the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the
2) …the decision to institute a constitutional dictatorship
legal limits to arbitrary power and a complete political responsibility
should never be in the hands of the man or men who will
of government to the governed.101
constitute the dictator…

In the final analysis, the various approaches to emergency of the

3) No government should initiate a constitutional
above political theorists –- from Lock’s "theory of prerogative," to
dictatorship without making specific provisions for its
Watkins’ doctrine of "constitutional dictatorship" and, eventually, to
termination…
McIlwain’s "principle of constitutionalism" --- ultimately aim to solve
one real problem in emergency governance, i.e., that of allotting
4) …all uses of emergency powers and all readjustments in increasing areas of discretionary power to the Chief Executive, while
the organization of the government should be effected in insuring that such powers will be exercised with a sense of political
pursuit of constitutional or legal requirements… responsibility and under effective limitations and checks.

5) … no dictatorial institution should be adopted, no right Our Constitution has fairly coped with this problem. Fresh from the
invaded, no regular procedure altered any more than is fetters of a repressive regime, the 1986 Constitutional Commission, in
absolutely necessary for the conquest of the particular drafting the 1987 Constitution, endeavored to create a government in
crisis . . . the concept of Justice Jackson’s "balanced power
structure."102 Executive, legislative, and judicial powers are dispersed
6) The measures adopted in the prosecution of the a to the President, the Congress, and the Supreme Court, respectively.
constitutional dictatorship should never be permanent in Each is supreme within its own sphere. But none has the monopoly of
character or effect… power in times of emergency. Each branch is given a role to serve as
limitation or check upon the other. This system does not weaken the
7) The dictatorship should be carried on by persons President, it just limits his power, using the language of McIlwain. In
representative of every part of the citizenry interested in the other words, in times of emergency, our Constitution reasonably
defense of the existing constitutional order. . . demands that we repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive but, at the same time, it
obliges him to operate within carefully prescribed procedural
8) Ultimate responsibility should be maintained for every limitations.
action taken under a constitutional dictatorship. . .
a. "Facial Challenge"
9) The decision to terminate a constitutional dictatorship,
like the decision to institute one should never be in the
hands of the man or men who constitute the dictator. . . Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
10) No constitutional dictatorship should extend beyond the Constitution and sent a "chilling effect" to the citizens.
termination of the crisis for which it was instituted…

A facial review of PP 1017, using the overbreadth doctrine, is uncalled

11) …the termination of the crisis must be followed by a for.
complete return as possible to the political and
governmental conditions existing prior to the initiation of
the constitutional dictatorship…99 First and foremost, the overbreadth doctrine is an analytical tool
developed for testing "on their faces" statutes in free speech
cases, also known under the American Law as First Amendment
Rossiter accorded to legislature a far greater role in the oversight cases.103
exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or termination
of an emergency, and he places great faith in the effectiveness of A plain reading of PP 1017 shows that it is not primarily directed to
congressional investigating committees.100 speech or even speech-related conduct. It is actually a call upon the
AFP to prevent or suppress all forms of lawless violence. In United
States v. Salerno,104 the US Supreme Court held that "we have not
Scott and Cotter, in analyzing the above contemporary theories in recognized an ‘overbreadth’ doctrine outside the limited context of
light of recent experience, were one in saying that, "the suggestion the First Amendment" (freedom of speech).
that democracies surrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in Moreover, the overbreadth doctrine is not intended for testing the
terms of constitutional dictatorship serves merely to distort the validity of a law that "reflects legitimate state interest in maintaining
problem and hinder realistic analysis. It matters not whether the term comprehensive control over harmful, constitutionally unprotected
"dictator" is used in its normal sense (as applied to authoritarian conduct." Undoubtedly, lawless violence, insurrection and rebellion
rulers) or is employed to embrace all chief executives administering are considered "harmful" and "constitutionally unprotected conduct."
emergency powers. However used, "constitutional dictatorship" In Broadrick v. Oklahoma,105 it was held:
cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the It remains a ‘matter of no little difficulty’ to determine when a law
"concept of constitutionalism" articulated by Charles H. McIlwain: may properly be held void on its face and when ‘such summary action’
is inappropriate. But the plain import of our cases is, at the very
A concept of constitutionalism which is less misleading in the analysis least, that facial overbreadth adjudication is an exception to our
of problems of emergency powers, and which is consistent with the traditional rules of practice and that its function, a limited one at the
findings of this study, is that formulated by Charles H. McIlwain. While outset, attenuates as the otherwise unprotected behavior that it
it does not by any means necessarily exclude some indeterminate forbids the State to sanction moves from ‘pure speech’ toward
limitations upon the substantive powers of government, full emphasis conduct and that conduct –even if expressive – falls within the scope
is placed upon procedural limitations, and political responsibility. of otherwise valid criminal laws that reflect legitimate state interests
McIlwain clearly recognized the need to repose adequate power in in maintaining comprehensive controls over harmful,
government. And in discussing the meaning of constitutionalism, he constitutionally unprotected conduct.
8
Thus, claims of facial overbreadth are entertained in cases involving Now on the constitutional foundation of PP 1017.
statutes which, by their terms, seek to regulate only "spoken words"
and again, that "overbreadth claims, if entertained at all, have been The operative portion of PP 1017 may be divided into three important
curtailed when invoked against ordinary criminal laws that are provisions, thus:
sought to be applied to protected conduct."106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum
First provision:
of conduct, not free speech, which is manifestly subject to state
regulation.
"by virtue of the power vested upon me by Section 18, Artilce VII … do
hereby command the Armed Forces of the Philippines, to maintain law
Second, facial invalidation of laws is considered as "manifestly strong
and order throughout the Philippines, prevent or suppress all forms of
medicine," to be used "sparingly and only as a last resort," and is
lawless violence as well any act of insurrection or rebellion"
"generally disfavored;"107 The reason for this is 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 Second provision:
heard to challenge a law on the ground that it may conceivably be
applied unconstitutionally to others, i.e., in other situations not "and to enforce obedience to all the laws and to all decrees, orders
before the Court.108 A writer and scholar in Constitutional Law and regulations promulgated by me personally or upon my direction;"
explains further:
Third provision:
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional "as provided in Section 17, Article XII of the Constitution do hereby
litigation. Ordinarily, a particular litigant claims that a statute is declare a State of National Emergency."
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis. First Provision: Calling-out Power
Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In The first provision pertains to the President’s calling-out power.
overbreadth analysis, those rules give way; challenges are permitted In Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice
to raise the rights of third parties; and the court invalidates the entire Dante O. Tinga, held that Section 18, Article VII of the Constitution
statute "on its face," not merely "as applied for" so that the overbroad reproduced as follows:
law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart Sec. 18. The President shall be the Commander-in-Chief of all armed
from the normal adjudicatory rules is the concern with the "chilling;" forces of the Philippines and whenever it becomes necessary, he may
deterrent effect of the overbroad statute on third parties not call out such armed forces to prevent or suppress lawless violence,
courageous enough to bring suit. The Court assumes that an invasion or rebellion. In case of invasion or rebellion, when the public
overbroad law’s "very existence may cause others not before the safety requires it, he may, for a period not exceeding sixty days,
court to refrain from constitutionally protected speech or expression." suspend the privilege of the writ of habeas corpus or place the
An overbreadth ruling is designed to remove that deterrent effect on Philippines or any part thereof under martial law. Within forty-eight
the speech of those third parties. hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
In other words, a facial challenge using the overbreadth doctrine will report in person or in writing to the Congress. The Congress, voting
require the Court to examine PP 1017 and pinpoint its flaws and jointly, by a vote of at least a majority of all its Members in regular or
defects, not on the basis of its actual operation to petitioners, but on special session, may revoke such proclamation or suspension, which
the assumption or prediction that its very existence may cause others revocation shall not be set aside by the President. Upon the initiative
not before the Court to refrain from constitutionally protected speech of the President, the Congress may, in the same manner, extend such
or expression. In Younger v. Harris,109 it was held that: proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, requires it.
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The The Congress, if not in session, shall within twenty-four hours
combination of the relative remoteness of the controversy, following such proclamation or suspension, convene in accordance
the impact on the legislative process of the relief sought, and above with its rules without need of a call.
all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes,...ordinarily results in a kind of case that The Supreme Court may review, in an appropriate proceeding filed by
is wholly unsatisfactory for deciding constitutional questions, any citizen, the sufficiency of the factual bases of the proclamation of
whichever way they might be decided. martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within
And third, a facial challenge on the ground of overbreadth is the most thirty days from its filing.
difficult challenge to mount successfully, since the challenger must
establish that there can be no instance when the assailed law may be A state of martial law does not suspend the operation of the
valid. Here, petitioners did not even attempt to show whether this Constitution, nor supplant the functioning of the civil courts or
situation exists. legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able
Petitioners likewise seek a facial review of PP 1017 on the ground of to function, nor automatically suspend the privilege of the writ.
vagueness. This, too, is unwarranted.
The suspension of the privilege of the writ shall apply only to persons
Related to the "overbreadth" doctrine is the "void for vagueness judicially charged for rebellion or offenses inherent in or directly
doctrine" which holds that "a law is facially invalid if men of common connected with invasion.
intelligence must necessarily guess at its meaning and differ as to its
application."110 It is subject to the same principles governing During the suspension of the privilege of the writ, any person thus
overbreadth doctrine. For one, it is also an analytical tool for testing arrested or detained shall be judicially charged within three days,
"on their faces" statutes in free speech cases. And like overbreadth, it otherwise he shall be released.
is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. Again, petitioners did not
grants the President, as Commander-in-Chief, a "sequence" of
even attempt to show that PP 1017 is vague in all its
graduated powers. From the most to the least benign, these are: the
application. They also failed to establish that men of common
calling-out power, the power to suspend the privilege of the writ
intelligence cannot understand the meaning and application of PP
of habeas corpus, and the power to declare Martial Law.
1017.
Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled
that the only criterion for the exercise of the calling-out power is that
b. Constitutional Basis of PP 1017 "whenever it becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion or
9
rebellion." Are these conditions present in the instant cases? As stated Justice Mendoza further stated that specifically, (a) arrests and
earlier, considering the circumstances then prevailing, President seizures without judicial warrants; (b) ban on public assemblies; (c)
Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast take-over of news media and agencies and press censorship; and (d)
intelligence network, she is in the best position to determine the issuance of Presidential Decrees, are powers which can be exercised
actual condition of the country. by the President as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas corpus.
Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and Based on the above disquisition, it is clear that PP 1017 is not a
rebellion. This involves ordinary police action. But every act that goes declaration of Martial Law. It is merely an exercise of President
beyond the President’s calling-out power is considered illegal or ultra Arroyo’s calling-out power for the armed forces to assist her in
vires. For this reason, a President must be careful in the exercise of his preventing or suppressing lawless violence.
powers. He cannot invoke a greater power when he wishes to act
under a lesser power. There lies the wisdom of our Constitution, the Second Provision: "Take Care" Power
greater the power, the greater are the limitations.
The second provision pertains to the power of the President to ensure
It is pertinent to state, however, that there is a distinction between that the laws be faithfully executed. This is based on Section 17,
the President’s authority to declare a "state of rebellion" (in Sanlakas) Article VII which reads:
and the authority to proclaim a state of national emergency. While
President Arroyo’s authority to declare a "state of rebellion"
SEC. 17. The President shall have control of all the executive
emanates from her powers as Chief Executive, the statutory authority
departments, bureaus, and offices. He shall ensure that the laws be
cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised
faithfully executed.
Administrative Code of 1987, which provides:

As the Executive in whom the executive power is vested,115 the

SEC. 4. – Proclamations. – Acts of the President fixing a date or
primary function of the President is to enforce the laws as well as to
declaring a status or condition of public moment or interest, upon the
formulate policies to be embodied in existing laws. He sees to it that
existence of which the operation of a specific law or regulation is
all laws are enforced by the officials and employees of his department.
made to depend, shall be promulgated in proclamations which shall
Before assuming office, he is required to take an oath or affirmation to
have the force of an executive order.
the effect that as President of the Philippines, he will, among others,
"execute its laws."116 In the exercise of such function, the President, if
President Arroyo’s declaration of a "state of rebellion" was merely an needed, may employ the powers attached to his office as the
act declaring a status or condition of public moment or interest, a Commander-in-Chief of all the armed forces of the
declaration allowed under Section 4 cited above. Such declaration, in country,117 including the Philippine National Police118 under the
the words of Sanlakas, is harmless, without legal significance, and Department of Interior and Local Government.119
deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not only
Petitioners, especially Representatives Francis Joseph G. Escudero,
rely on Section 18, Article VII of the Constitution, a provision calling on
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
the AFP to prevent or suppress lawless violence, invasion or rebellion.
Virador argue that PP 1017 is unconstitutional as it arrogated upon
She also relied on Section 17, Article XII, a provision on the State’s
President Arroyo the power to enact laws and decrees in violation of
extraordinary power to take over privately-owned public utility and
Section 1, Article VI of the Constitution, which vests the power to
business affected with public interest. Indeed, PP 1017 calls for the
enact laws in Congress. They assail the clause "to enforce obedience
exercise of an awesome power. Obviously, such Proclamation cannot
to all the laws and to all decrees, orders and regulations
be deemed harmless, without legal significance, or not written, as in
promulgated by me personally or upon my direction ."
the case of Sanlakas.

Petitioners’ contention is understandable. A reading of PP 1017

Some of the petitioners vehemently maintain that PP 1017 is actually
operative clause shows that it was lifted120 from Former President
a declaration of Martial Law. It is no so. What defines the character of
Marcos’ Proclamation No. 1081, which partly reads:
PP 1017 are its wordings. It is plain therein that what the President
invoked was her calling-out power.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII,
The declaration of Martial Law is a "warn[ing] to citizens that the
Section 10, Paragraph (2) of the Constitution, do hereby place the
military power has been called upon by the executive to assist in the
entire Philippines as defined in Article 1, Section 1 of the Constitution
maintenance of law and order, and that, while the emergency lasts,
under martial law and, in my capacity as their Commander-in-
they must, upon pain of arrest and punishment, not commit any acts
Chief, do hereby command the Armed Forces of the Philippines, to
which will in any way render more difficult the restoration of order
maintain law and order throughout the Philippines, prevent or
and the enforcement of law."113
suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws
In his "Statement before the Senate Committee on Justice" on March and decrees, orders and regulations promulgated by me personally
13, 2006, Mr. Justice Vicente V. Mendoza,114 an authority in or upon my direction.
constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the
We all know that it was PP 1081 which granted President Marcos
most severe threat to civil liberties. It is a strong medicine which
legislative power. Its enabling clause states: "to enforce obedience to
should not be resorted to lightly. It cannot be used to stifle or
all the laws and decrees, orders and regulations promulgated by me
persecute critics of the government. It is placed in the keeping of the
personally or upon my direction." Upon the other hand, the enabling
President for the purpose of enabling him to secure the people from
clause of PP 1017 issued by President Arroyo is: to enforce obedience
harm and to restore order so that they can enjoy their individual
to all the laws and to all decrees, orders and regulations
freedoms. In fact, Section 18, Art. VII, provides:
promulgated by me personally or upon my direction."

A state of martial law does not suspend the operation of the

Is it within the domain of President Arroyo to promulgate "decrees"?
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able PP 1017 states in part: "to enforce obedience to all the laws
to function, nor automatically suspend the privilege of the writ. and decrees x x x promulgated by me personally or upon my
direction."
Justice Mendoza also stated that PP 1017 is not a declaration of
Martial Law. It is no more than a call by the President to the armed The President is granted an Ordinance Power under Chapter 2, Book
forces to prevent or suppress lawless violence. As such, it cannot be III of Executive Order No. 292 (Administrative Code of 1987). She may
used to justify acts that only under a valid declaration of Martial Law issue any of the following:
can be done. Its use for any other purpose is a perversion of its nature
and scope, and any act done contrary to its command is ultra vires. Sec. 2. Executive Orders. — Acts of the President providing for rules of
a general or permanent character in implementation or execution of

10
constitutional or statutory powers shall be promulgated in executive The answer is simple. During the existence of the state of national
orders. emergency, PP 1017 purports to grant the President, without any
authority or delegation from Congress, to take over or direct the
Sec. 3. Administrative Orders. — Acts of the President which relate to operation of any privately-owned public utility or business affected
particular aspect of governmental operations in pursuance of his with public interest.
duties as administrative head shall be promulgated in administrative
orders. This provision was first introduced in the 1973 Constitution, as a
product of the "martial law" thinking of the 1971 Constitutional
Sec. 4. Proclamations. — Acts of the President fixing a date or Convention.122 In effect at the time of its approval was President
declaring a status or condition of public moment or interest, upon the Marcos’ Letter of Instruction No. 2 dated September 22, 1972
existence of which the operation of a specific law or regulation is instructing the Secretary of National Defense to take over "the
made to depend, shall be promulgated in proclamations which shall management, control and operation of the Manila Electric Company,
have the force of an executive order. the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient
Sec. 5. Memorandum Orders. — Acts of the President on matters of
Airways . . . for the successful prosecution by the Government of its
administrative detail or of subordinate or temporary interest which
effort to contain, solve and end the present national emergency."
only concern a particular officer or office of the Government shall be
embodied in memorandum orders.
Petitioners, particularly the members of the House of Representatives,
claim that President Arroyo’s inclusion of Section 17, Article XII in PP
Sec. 6. Memorandum Circulars. — Acts of the President on matters
1017 is an encroachment on the legislature’s emergency powers.
relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies,
bureaus or offices of the Government, for information or compliance, This is an area that needs delineation.
shall be embodied in memorandum circulars.
A distinction must be drawn between the President’s authority
Sec. 7. General or Special Orders. — Acts and commands of the to declare "a state of national emergency" and to exercise emergency
President in his capacity as Commander-in-Chief of the Armed Forces powers. To the first, as elucidated by the Court, Section 18, Article VII
of the Philippines shall be issued as general or special orders. grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional
issues arise.
President Arroyo’s ordinance power is limited to the foregoing
issuances. She cannot issue decrees similar to those issued by Former
President Marcos under PP 1081. Presidential Decrees are laws which Section 23, Article VI of the Constitution reads:
are of the same category and binding force as statutes because they
were issued by the President in the exercise of his legislative power SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in
during the period of Martial Law under the 1973 Constitution.121 joint session assembled, voting separately, shall have the sole power
to declare the existence of a state of war.
This Court rules that the assailed PP 1017 is unconstitutional insofar
as it grants President Arroyo the authority to promulgate (2) In times of war or other national emergency, the Congress may, by
"decrees." Legislative power is peculiarly within the province of the law, authorize the President, for a limited period and subject to such
Legislature. Section 1, Article VI categorically states that "[t]he restrictions as it may prescribe, to exercise powers necessary and
legislative power shall be vested in the Congress of the Philippines proper to carry out a declared national policy. Unless sooner
which shall consist of a Senate and a House of Representatives." To withdrawn by resolution of the Congress, such powers shall cease
be sure, neither Martial Law nor a state of rebellion nor a state of upon the next adjournment thereof.
emergency can justify President Arroyo’s exercise of legislative power
by issuing decrees. It may be pointed out that the second paragraph of the above
provision refers not only to war but also to "other national
Can President Arroyo enforce obedience to all decrees and laws emergency." If the intention of the Framers of our Constitution was to
through the military? withhold from the President the authority to declare a "state of
national emergency" pursuant to Section 18, Article VII (calling-out
As this Court stated earlier, President Arroyo has no authority to enact power) and grant it to Congress (like the declaration of the existence
decrees. It follows that these decrees are void and, therefore, cannot of a state of war), then the Framers could have provided so. Clearly,
be enforced. With respect to "laws," she cannot call the military to they did not intend that Congress should first authorize the President
enforce or implement certain laws, such as customs laws, laws before he can declare a "state of national emergency." The logical
governing family and property relations, laws on obligations and conclusion then is that President Arroyo could validly declare the
contracts and the like. She can only order the military, under PP 1017, existence of a state of national emergency even in the absence of a
to enforce laws pertinent to its duty to suppress lawless violence. Congressional enactment.

Third Provision: Power to Take Over But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public interest,
is a different matter. This requires a delegation from Congress.
The pertinent provision of PP 1017 states:

Courts have often said that constitutional provisions in pari

x x x and to enforce obedience to all the laws and to all decrees,
materia are to be construed together. Otherwise stated, different
orders, and regulations promulgated by me personally or upon my
clauses, sections, and provisions of a constitution which relate to the
direction; and as provided in Section 17, Article XII of the
same subject matter will be construed together and considered in the
Constitution do hereby declare a state of national emergency.
light of each other.123 Considering that  Section 17 of Article XII and
Section 23 of Article VI, previously quoted, relate to national
The import of this provision is that President Arroyo, during the state emergencies, they must be read together to determine the limitation
of national emergency under PP 1017, can call the military not only to of the exercise of emergency powers.
enforce obedience "to all the laws and to all decrees x x x" but also to
act pursuant to the provision of Section 17, Article XII which reads:
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to
Sec. 17. In times of national emergency, when the public interest so delegate such powers to the President. Certainly, a body cannot
requires, the State may, during the emergency and under reasonable delegate a power not reposed upon it. However, knowing that during
terms prescribed by it, temporarily take over or direct the operation grave emergencies, it may not be possible or practicable for Congress
of any privately-owned public utility or business affected with public to meet and exercise its powers, the Framers of our Constitution
interest. deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:
What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017? (1) There must be a war or other emergency.

11
 (2) The delegation must be for a limited period only. When the common good so requires, the State may temporarily take
over or direct the operation of any privately owned public utility or
(3) The delegation must be subject to such restrictions as business affected with public interest.
the Congress may prescribe.
MR. VILLEGAS. What I mean is threat from external aggression, for
(4) The emergency powers must be exercised to carry out a example, calamities or natural disasters.
national policy declared by Congress.124
MR. GASCON. There is a question by Commissioner de los Reyes. What
Section 17, Article XII must be understood as an aspect of the about strikes and riots?
emergency powers clause. The taking over of private business affected
with public interest is just another facet of the emergency powers MR. VILLEGAS. Strikes, no; those would not be covered by the term
generally reposed upon Congress. Thus, when Section 17 states that "national emergency."
the "the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation MR. BENGZON. Unless they are of such proportions such that they
of any privately owned public utility or business affected with public would paralyze government service.132
interest," it refers to Congress, not the President. Now, whether or
not the President may exercise such power is dependent on whether
xxxxxx
Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v.
Sawyer,125 held: MR. TINGSON. May I ask the committee if "national emergency" refers
to military national emergency or could this be economic
emergency?"
It is clear that if the President had authority to issue the order he did,
it must be found in some provision of the Constitution. And it is not
claimed that express constitutional language grants this power to the MR. VILLEGAS. Yes, it could refer to both military or economic
President. The contention is that presidential power should be implied dislocations.
from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that "The MR. TINGSON. Thank you very much.133
executive Power shall be vested in a President . . . .;" that "he shall
take Care that the Laws be faithfully executed;" and that he "shall be It may be argued that when there is national emergency, Congress
Commander-in-Chief of the Army and Navy of the United States. may not be able to convene and, therefore, unable to delegate to the
President the power to take over privately-owned public utility or
The order cannot properly be sustained as an exercise of the business affected with public interest.
President’s military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of cases In Araneta v. Dinglasan,134 this Court emphasized that legislative
upholding broad powers in military commanders engaged in day-to- power, through which extraordinary measures are exercised, remains
day fighting in a theater of war. Such cases need not concern us in Congress even in times of crisis.
here. Even though "theater of war" be an expanding concept, we
cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as "x x x
such to take possession of private property in order to keep labor
disputes from stopping production. This is a job for the nation’s After all the criticisms that have been made against the efficiency of
lawmakers, not for its military authorities. the system of the separation of powers, the fact remains that the
Constitution has set up this form of government, with all its defects
Nor can the seizure order be sustained because of the several and shortcomings, in preference to the commingling of powers in one
constitutional provisions that grant executive power to the man or group of men. The Filipino people by adopting parliamentary
President. In the framework of our Constitution, the President’s government have given notice that they share the faith of other
power to see that the laws are faithfully executed refutes the idea democracy-loving peoples in this system, with all its faults, as the
that he is to be a lawmaker. The Constitution limits his functions in ideal. The point is, under this framework of government, legislation is
the lawmaking process to the recommending of laws he thinks wise preserved for Congress all the time, not excepting periods of crisis no
and the vetoing of laws he thinks bad. And the Constitution is matter how serious. Never in the history of the United States, the
neither silent nor equivocal about who shall make laws which the basic features of whose Constitution have been copied in ours, have
President is to execute. The first section of the first article says that specific functions of the legislative branch of enacting laws been
"All legislative Powers herein granted shall be vested in a Congress surrendered to another department – unless we regard as legislating
of the United States. . ."126 the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war,
or when it was engaged in a life-and-death struggle to preserve the
Petitioner Cacho-Olivares, et al. contends that the term "emergency" Union. The truth is that under our concept of constitutional
under Section 17, Article XII refers to "tsunami," "typhoon," government, in times of extreme perils more than in normal
"hurricane"and"similar occurrences." This is a limited view of circumstances ‘the various branches, executive, legislative, and
"emergency." judicial,’ given the ability to act, are called upon ‘to perform the duties
and discharge the responsibilities committed to them respectively."
Emergency, as a generic term, connotes the existence of conditions
suddenly intensifying the degree of existing danger to life or well- Following our interpretation of Section 17, Article XII, invoked by
being beyond that which is accepted as normal. Implicit in this President Arroyo in issuing PP 1017, this Court rules that such
definitions are the elements of intensity, variety, and Proclamation does not authorize her during the emergency to
perception.127 Emergencies, as perceived by legislature or executive in temporarily take over or direct the operation of any privately owned
the United Sates since 1933, have been occasioned by a wide range of public utility or business affected with public interest without
situations, classifiable under three (3) principal authority from Congress.
heads: a) economic,128 b) natural disaster,129 and c) national
security.130
Let it be emphasized that while the President alone can declare a state
of national emergency, however, without legislation, he has no power
"Emergency," as contemplated in our Constitution, is of the same to take over privately-owned public utility or business affected with
breadth. It may include rebellion, economic crisis, pestilence or public interest. The President cannot decide whether exceptional
epidemic, typhoon, flood, or other similar catastrophe of nationwide circumstances exist warranting the take over of privately-owned
proportions or effect.131 This is evident in the Records of the public utility or business affected with public interest. Nor can he
Constitutional Commission, thus: determine when such exceptional circumstances have ceased.
Likewise, without legislation, the President has no power to point out
MR. GASCON. Yes. What is the Committee’s definition of "national the types of businesses affected with public interest that should be
emergency" which appears in Section 13, page 5? It reads: 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 emergency powers act passed by Congress.

12
 c. "AS APPLIED CHALLENGE" "invasion, insurrection or rebellion," the phrase "acts of terrorism" is
still an amorphous and vague concept. Congress has yet to enact a law
One of the misfortunes of an emergency, particularly, that which defining and punishing acts of terrorism.
pertains to security, is that military necessity and the guaranteed
rights of the individual are often not compatible. Our history reveals In fact, this "definitional predicament" or the "absence of an agreed
that in the crucible of conflict, many rights are curtailed and trampled definition of terrorism" confronts not only our country, but the
upon. Here, the right against unreasonable search and seizure; the international community as well. The following observations are quite
right against warrantless arrest; and the freedom of speech, of apropos:
expression, of the press, and of assembly under the Bill of Rights
suffered the greatest blow. In the actual unipolar context of international relations, the "fight
against terrorism" has become one of the basic slogans when it comes
Of the seven (7) petitions, three (3) indicate "direct injury." to the justification of the use of force against certain states and
against groups operating internationally. Lists of states "sponsoring
In G.R. No. 171396, petitioners David and Llamas alleged that, on terrorism" and of terrorist organizations are set up and constantly
February 24, 2006, they were arrested without warrants on their way being updated according to criteria that are not always known to the
to EDSA to celebrate the 20th Anniversary of People Power I. The public, but are clearly determined by strategic interests.
arresting officers cited PP 1017 as basis of the arrest.
The basic problem underlying all these military actions – or threats of
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune  Publishing the use of force as the most recent by the United States against Iraq –
Co., Inc. claimed that on February 25, 2006, the CIDG operatives consists in the absence of an agreed definition of terrorism.
"raided and ransacked without warrant" their office. Three policemen
were assigned to guard their office as a possible "source of Remarkable confusion persists in regard to the legal categorization of
destabilization." Again, the basis was PP 1017. acts of violence either by states, by armed groups such as liberation
movements, or by individuals.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et
al. alleged that their members were "turned away and dispersed" The dilemma can by summarized in the saying "One country’s terrorist
when they went to EDSA and later, to Ayala Avenue, to celebrate the is another country’s freedom fighter." The apparent contradiction or
20th Anniversary of People Power I. lack of consistency in the use of the term "terrorism" may further be
demonstrated by the historical fact that leaders of national liberation
A perusal of the "direct injuries" allegedly suffered by the said movements such as Nelson Mandela in South Africa, Habib
petitioners shows that they resulted from the implementation, Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only
pursuant to G.O. No. 5, of PP 1017. a few, were originally labeled as terrorists by those who controlled the
territory at the time, but later became internationally respected
statesmen.
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
implementation of a law render it unconstitutional? What, then, is the defining criterion for terrorist acts – the differentia
specifica distinguishing those acts from eventually legitimate acts of
national resistance or self-defense?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused135 and may
afford an opportunity for abuse in the manner of application.136 The Since the times of the Cold War the United Nations Organization has
validity of a statute or ordinance is to be determined from its general been trying in vain to reach a consensus on the basic issue of
purpose and its efficiency to accomplish the end desired, not from its definition. The organization has intensified its efforts recently, but has
effects in a particular case.137 PP 1017 is merely an invocation of the been unable to bridge the gap between those who associate
President’s calling-out power. Its general purpose is to command the "terrorism" with any violent act by non-state groups against civilians,
AFP to suppress all forms of lawless violence, invasion or rebellion. It state functionaries or infrastructure or military installations, and those
had accomplished the end desired which prompted President Arroyo who believe in the concept of the legitimate use of force when
to issue PP 1021. But there is nothing in PP 1017 allowing the police, resistance against foreign occupation or against systematic oppression
expressly or impliedly, to conduct illegal arrest, search or violate the of ethnic and/or religious groups within a state is concerned.
citizens’ constitutional rights.
The dilemma facing the international community can best be
Now, may this Court adjudge a law or ordinance unconstitutional on illustrated by reference to the contradicting categorization of
the ground that its implementor committed illegal acts? The answer is organizations and movements such as Palestine Liberation
no. The criterion by which the validity of the statute or ordinance is to Organization (PLO) – which is a terrorist group for Israel and a
be measured is the essential basis for the exercise of power, and not a liberation movement for Arabs and Muslims – the Kashmiri resistance
mere incidental result arising from its exertion.138 This is logical. Just groups – who are terrorists in the perception of India, liberation
imagine the absurdity of situations when laws maybe declared fighters in that of Pakistan – the earlier Contras in Nicaragua –
unconstitutional just because the officers implementing them have freedom fighters for the United States, terrorists for the Socialist
acted arbitrarily. If this were so, judging from the blunders committed camp – or, most drastically, the Afghani Mujahedeen (later to become
by policemen in the cases passed upon by the Court, majority of the the Taliban movement): during the Cold War period they were a
provisions of the Revised Penal Code would have been declared group of freedom fighters for the West, nurtured by the United States,
unconstitutional a long time ago. and a terrorist gang for the Soviet Union. One could go on and on in
enumerating examples of conflicting categorizations that cannot be
reconciled in any way – because of opposing political interests that are
President Arroyo issued G.O. No. 5 to carry into effect the provisions
at the roots of those perceptions.
of PP 1017. General orders are "acts and commands of the President
in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines." They are internal rules issued by the executive officer to How, then, can those contradicting definitions and conflicting
his subordinates precisely for the proper and efficient administration perceptions and evaluations of one and the same group and its
of law. Such rules and regulations create no relation except between actions be explained? In our analysis, the basic reason for these
the official who issues them and the official who receives striking inconsistencies lies in the divergent interest of states.
them.139 They are based on and are the product of, a relationship in Depending on whether a state is in the position of an occupying power
which power is their source, and obedience, their object.140 For these or in that of a rival, or adversary, of an occupying power in a given
reasons, one requirement for these rules to be valid is that they must territory, the definition of terrorism will "fluctuate" accordingly. A
be reasonable, not arbitrary or capricious. state may eventually see itself as protector of the rights of a certain
ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this
G.O. No. 5 mandates the AFP and the PNP to immediately carry out
group are concerned, and vice-versa.
the "necessary and appropriate actions and measures to suppress
and prevent acts of terrorism and lawless violence."
The United Nations Organization has been unable to reach a decision
on the definition of terrorism exactly because of these conflicting
Unlike the term "lawless violence" which is unarguably extant in our
interests of sovereign states that determine in each and every
statutes and the Constitution, and which is invariably associated with
instance how a particular armed movement (i.e. a non-state actor) is
13
labeled in regard to the terrorists-freedom fighter dichotomy. A Sedition; sixth, he was detained for seven (7) hours; and seventh,he
"policy of double standards" on this vital issue of international affairs was eventually released for insufficiency of evidence.
has been the unavoidable consequence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
This "definitional predicament" of an organization consisting of provides:
sovereign states – and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! – has become even more Sec. 5. Arrest without warrant; when lawful. - A peace officer or a
serious in the present global power constellation: one superpower private person may, without a warrant, arrest a person:
exercises the decisive role in the Security Council, former great
powers of the Cold War era as well as medium powers are increasingly
(a) When, in his presence, the person to be arrested has
being marginalized; and the problem has become even more acute
committed, is actually committing, or is attempting to
since the terrorist attacks of 11 September 2001 I the United States.141
commit an offense.

The absence of a law defining "acts of terrorism" may result in abuse

(b) When an offense has just been committed and he has
and oppression on the part of the police or military. An illustration is
probable cause to believe based on personal knowledge of
when a group of persons are merely engaged in a drinking spree. Yet
facts or circumstances that the person to be arrested has
the military or the police may consider the act as an act of terrorism
committed it; and
and immediately arrest them pursuant to G.O. No. 5. Obviously, this is
abuse and oppression on their part. It must be remembered that an
act can only be considered a crime if there is a law defining the same x x x.
as such and imposing the corresponding penalty thereon.
Neither of the two (2) exceptions mentioned above justifies petitioner
So far, the word "terrorism" appears only once in our criminal laws, David’s warrantless arrest. During the inquest for the charges of
i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President inciting to sedition and violation of BP 880, all that the arresting
Marcos during the Martial Law regime. This decree is entitled officers could invoke was their observation that some rallyists were
"Codifying The Various Laws on Anti-Subversion and Increasing The wearing t-shirts with the invective "Oust Gloria Now" and their
Penalties for Membership in Subversive Organizations." The word erroneous assumption that petitioner David was the leader of the
"terrorism" is mentioned in the following provision: "That one who rally.146 Consequently, the Inquest Prosecutor ordered his immediate
conspires with any other person for the purpose of overthrowing the release on the ground of insufficiency of evidence. He noted that
Government of the Philippines x x x by force, violence, terrorism, x x x petitioner David was not wearing the subject t-shirt and even if he was
shall be punished by reclusion temporal  x x x." wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for
the charge of violation of BP 880 as it was not even known whether
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
petitioner David was the leader of the rally.147
Communist Party of the Philippines) enacted by President Corazon
Aquino on May 5, 1985. These two (2) laws, however, do not define
"acts of terrorism." Since there is no law defining "acts of terrorism," it But what made it doubly worse for petitioners David et al. is that not
is President Arroyo alone, under G.O. No. 5, who has the discretion to only was their right against warrantless arrest violated, but also their
determine what acts constitute terrorism. Her judgment on this right to peaceably assemble.
aspect is absolute, without restrictions. Consequently, there can be
indiscriminate arrest without warrants, breaking into offices and Section 4 of Article III guarantees:
residences, taking over the media enterprises, prohibition and
dispersal of all assemblies and gatherings unfriendly to the No law shall be passed abridging the freedom of speech, of
administration. All these can be effected in the name of G.O. No. 5. expression, or of the press, or the right of the people peaceably to
These acts go far beyond the calling-out power of the President. assemble and petition the government for redress of grievances.
Certainly, they violate the due process clause of the Constitution.
Thus, this Court declares that the "acts of terrorism" portion of G.O.
No. 5 is unconstitutional. "Assembly" means a right on the part of the citizens to meet
peaceably for consultation in respect to public affairs. It is a necessary
consequence of our republican institution and complements the right
Significantly, there is nothing in G.O. No. 5 authorizing the military or of speech. As in the case of freedom of expression, this right is not to
police to commit acts beyond what are necessary and appropriate to be limited, much less denied, except on a showing of a clear and
suppress and prevent lawless violence, the limitation of their present danger of a substantive evil that Congress has a right to
authority in pursuing the Order. Otherwise, such acts are considered prevent. In other words, like other rights embraced in the freedom of
illegal. expression, the right to assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior issuance of a
We first examine G.R. No. 171396  (David et al.) permit or authorization from the government authorities except, of
course, if the assembly is intended to be held in a public place, a
The Constitution provides that "the right of the people to be secured permit for the use of such place, and not for the assembly itself, may
in their persons, houses, papers and effects against unreasonable be validly required.
search and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue The ringing truth here is that petitioner David, et al. were arrested
except upon probable cause to be determined personally by the judge while they were exercising their right to peaceful assembly. They were
after examination under oath or affirmation of the complainant and not committing any crime, neither was there a showing of a clear and
the witnesses he may produce, and particularly describing the place to present danger that warranted the limitation of that right. As can be
be searched and the persons or things to be seized."142 The plain gleaned from circumstances, the charges of inciting to
import of the language of the Constitution is that searches, seizures sedition and violation of BP 880 were mere afterthought. Even the
and arrests are normally unreasonable unless authorized by a validly Solicitor General, during the oral argument, failed to justify the
issued search warrant or warrant of arrest. Thus, the fundamental arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that
protection given by this provision is that between person and police peaceable assembly cannot be made a crime, thus:
must stand the protective authority of a magistrate clothed with
power to issue or refuse to issue search warrants or warrants of Peaceable assembly for lawful discussion cannot be made a crime. The
arrest.143 holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings cannot
In the Brief Account144 submitted by petitioner David, certain facts are be branded as criminals on that score. The question, if the rights of
established: first, he was arrested without warrant; second, the PNP free speech and peaceful assembly are not to be preserved, is not as
operatives arrested him on the basis of PP 1017; third, he was brought to the auspices under which the meeting was held but as to its
at Camp Karingal, Quezon City where he was fingerprinted, purpose; not as to the relations of the speakers, but whether their
photographed and booked like a criminal suspect; fourth,he was utterances transcend the bounds of the freedom of speech which the
treated brusquely by policemen who "held his head and tried to push Constitution protects. If the persons assembling have committed
him" inside an unmarked car; fifth, he was charged with Violation crimes elsewhere, if they have formed or are engaged in a conspiracy
of Batas Pambansa Bilang No. 880145 and Inciting to 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

14
when the State, instead of prosecuting them for such offenses, seizes newspapers. As a consequence of the search and seizure, these
upon mere participation in a peaceable assembly and a lawful public premises were padlocked and sealed, with the further result that the
discussion as the basis for a criminal charge. printing and publication of said newspapers were discontinued.

On the basis of the above principles, the Court likewise considers the Such closure is in the nature of previous restraint or censorship
dispersal and arrest of the members of KMU et al. (G.R. No. 171483) abhorrent to the freedom of the press guaranteed under the
unwarranted. Apparently, their dispersal was done merely on the fundamental law, and constitutes a virtual denial of petitioners'
basis of Malacañang’s directive canceling all permits previously issued freedom to express themselves in print. This state of being is
by local government units. This is arbitrary. The wholesale cancellation patently anathematic to a democratic framework where a free, alert
of all permits to rally is a blatant disregard of the principle that and even militant press is essential for the political enlightenment
"freedom of assembly is not to be limited, much less denied, except and growth of the citizenry.
on a showing of a clear and present danger of a substantive evil that
the State has a right to prevent."149 Tolerance is the rule and While admittedly, the Daily Tribune was not padlocked and sealed like
limitation is the exception. Only upon a showing that an assembly the "Metropolitan Mail" and "We Forum" newspapers in the above
presents a clear and present danger that the State may deny the case, yet it cannot be denied that the CIDG operatives exceeded their
citizens’ right to exercise it. Indeed, respondents failed to show or enforcement duties. The search and seizure of materials for
convince the Court that the rallyists committed acts amounting to publication, the stationing of policemen in the vicinity of the The Daily
lawless violence, invasion or rebellion. With the blanket revocation of Tribune  offices, and the arrogant warning of government officials to
permits, the distinction between protected and unprotected media, are plain censorship. It is that officious functionary of the
assemblies was eliminated. repressive government who tells the citizen that he may speak only if
allowed to do so, and no more and no less than what he is permitted
Moreover, under BP 880, the authority to regulate assemblies and to say on pain of punishment should he be so rash as to
rallies is lodged with the local government units. They have the power disobey.153 Undoubtedly, the The Daily Tribune was subjected to these
to issue permits and to revoke such permits after due notice and arbitrary intrusions because of its anti-government sentiments. This
hearing on the determination of the presence of clear and present Court cannot tolerate the blatant disregard of a constitutional right
danger. Here, petitioners were not even notified and heard on the even if it involves the most defiant of our citizens. Freedom to
revocation of their permits.150 The first time they learned of it was at comment on public affairs is essential to the vitality of a
the time of the dispersal. Such absence of notice is a fatal defect. representative democracy. It is the duty of the courts to be watchful
When a person’s right is restricted by government action, it behooves for the constitutional rights of the citizen, and against any stealthy
a democratic government to see to it that the restriction is fair, encroachments thereon. The motto should always be obsta
reasonable, and according to procedure. principiis.154

G.R. No. 171409,  (Cacho-Olivares, et al.) presents another facet of Incidentally, during the oral arguments, the Solicitor General admitted
freedom of speech i.e., the freedom of the press. Petitioners’ that the search of the Tribune’s offices and the seizure of its materials
narration of facts, which the Solicitor General failed to refute, for publication and other papers are illegal; and that the same are
established the following: first, the Daily Tribune’s offices were inadmissible "for any purpose," thus:
searched without warrant;second, the police operatives seized several
materials for publication; third, the search was conducted at about JUSTICE CALLEJO:
1:00 o’ clock in the morning of February 25, 2006; fourth, the search
was conducted in the absence of any official of the Daily
You made quite a mouthful of admission when you said that the
Tribune except the security guard of the building; and fifth,  policemen
policemen, when inspected the Tribune for the purpose of gathering
stationed themselves at the vicinity of the Daily Tribune offices.
evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these clippings
Thereafter, a wave of warning came from government officials. that were taken from the Tribune?
Presidential Chief of Staff Michael Defensor was quoted as saying that
such raid was "meant to show a ‘strong presence,’ to tell media
SOLICITOR GENERAL BENIPAYO:
outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards –and the standards Under the law they would seem to be, if they were illegally seized, I
are if they would contribute to instability in the government, or if think and I know, Your Honor, and these are inadmissible for any
they do not subscribe to what is in General Order No. 5 and Proc. purpose.155
No. 1017 – we will recommend a ‘takeover.’" National
Telecommunications Commissioner Ronald Solis urged television and xxxxxxxxx
radio networks to "cooperate" with the government for the duration
of the state of national emergency. He warned that his agency will SR. ASSO. JUSTICE PUNO:
not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage during times when the
national security is threatened.151 These have been published in the past issues of the Daily Tribune; 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 warrant? Did
The search is illegal. Rule 126 of The Revised Rules on Criminal they become suddenly part of the evidence of rebellion or inciting to
Procedure lays down the steps in the conduct of search and sedition or what?
seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or SOLGEN BENIPAYO:
affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any Well, it was the police that did that, Your Honor. Not upon my
other premise be made in the presence of the lawful instructions.
occupant thereof or any member of his family or in the absence of the
latter, in the presence of two (2) witnesses of sufficient age and SR. ASSO. JUSTICE PUNO:
discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the
Are you saying that the act of the policeman is illegal, it is not based
property is on the person or in the place ordered to be searched, in
on any law, and it is not based on Proclamation 1017.
which case a direction may be inserted that it be served at any time of
the day or night. All these rules were violated by the CIDG operatives.
SOLGEN BENIPAYO:
Not only that, the search violated petitioners’ freedom of the press.
The best gauge of a free and democratic society rests in the degree of It is not based on Proclamation 1017, Your Honor, because there is
freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this nothing in 1017 which says that the police could go and inspect and
Court held that -- gather clippings from Daily Tribune or any other newspaper.

As heretofore stated, the premises searched were the business and SR. ASSO. JUSTICE PUNO:
printing offices of the "Metropolitan Mail" and the "We Forum"
15
Is it based on any law? In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued
by the President – acting as Commander-in-Chief – addressed to
SOLGEN BENIPAYO: subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and
the police should take only the "necessary and appropriate actions
As far as I know, no, Your Honor, from the facts, no.
and measures to suppress and prevent acts of lawless violence."But
the words "acts of terrorism" found in G.O. No. 5 have not been
SR. ASSO. JUSTICE PUNO: legally defined and made punishable by Congress and should thus be
deemed deleted from the said G.O. While "terrorism" has been
So, it has no basis, no legal basis whatsoever? denounced generally in media, no law has been enacted to guide the
military, and eventually the courts, to determine the limits of the
SOLGEN BENIPAYO: AFP’s authority in carrying out this portion of G.O. No. 5.

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it On the basis of the relevant and uncontested facts narrated earlier, it
is premature to say this, we do not condone this. If the people who is also pristine clear that (1) the warrantless arrest of petitioners
have been injured by this would want to sue them, they can sue and Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and
there are remedies for this.156 warrantless arrest of the KMU and NAFLU-KMU members; (3) the
imposition of standards on media or any prior restraint on the press;
and (4) the warrantless search of the Tribune  offices and the
Likewise, the warrantless arrests and seizures executed by the police whimsical seizures of some articles for publication and other
were, according to the Solicitor General, illegal and cannot be materials, are not authorized by the Constitution, the law and
condoned, thus: jurisprudence. Not even by the valid provisions of PP 1017 and G.O.
No. 5.
CHIEF JUSTICE PANGANIBAN:
Other than this declaration of invalidity, this Court cannot impose any
There seems to be some confusions if not contradiction in your civil, criminal or administrative sanctions on the individual police
theory. officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or
SOLICITOR GENERAL BENIPAYO: relevant criminal Informations have not been presented before this
Court. Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative liabilities.
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 cannot
be condoned. You cannot blame the President for, as you said, a It is well to remember that military power is a means to an end and
misapplication of the law. These are acts of the police officers, that is substantive civil rights are ends in themselves. How to give the
their responsibility.157 military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency,
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
governmental action may vary in breadth and intensity from normal
constitutional in every aspect and "should result in no constitutional
times, yet they should not be arbitrary as to unduly restrain our
or statutory breaches if applied according to their letter."
people’s liberty.

The Court has passed upon the constitutionality of these issuances. Its
Perhaps, the vital lesson that we must learn from the theorists who
ratiocination has been exhaustively presented. At this point, suffice it
studied the various competing political philosophies is that, it is
to reiterate that PP 1017 is limited to the calling out by the President
possible to grant government the authority to cope with crises
of the military to prevent or suppress lawless violence, invasion or
without surrendering the two vital principles of constitutionalism: the
rebellion. When in implementing its provisions, pursuant to G.O. No.
maintenance of legal limits to arbitrary power, and political
5, the military and the police committed acts which violate the
responsibility of the government to the governed.158
citizens’ rights under the Constitution, this Court has to declare such
acts unconstitutional and illegal.
WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President
In this connection, Chief Justice Artemio V. Panganiban’s concurring
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless
opinion, attached hereto, is considered an integral part of
violence. However, the provisions of PP 1017 commanding the AFP to
this ponencia.
enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In
SUMMATION addition, the provision in PP 1017 declaring national emergency under
Section 17, Article VII of the Constitution is CONSTITUTIONAL, but
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a such declaration does not authorize the President to take over
supervening event – would have normally rendered this case moot privately-owned public utility or business affected with public interest
and academic. However, while PP 1017 was still operative, illegal acts without prior legislation.
were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
Already, there have been media reports on April 30, 2006 that the AFP and the PNP should implement PP 1017, i.e. whatever is
allegedly PP 1017 would be reimposed "if the May 1 rallies" become "necessary and appropriate actions and measures to suppress and
"unruly and violent." Consequently, the transcendental issues raised prevent acts of lawless violence." Considering that "acts of terrorism"
by the parties should not be "evaded;" they must now be resolved to have not yet been defined and made punishable by the Legislature,
prevent future constitutional aberration. such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The Court finds and so holds that PP 1017 is constitutional insofar as it The warrantless arrest of Randolf S. David and Ronald Llamas; the
constitutes a call by the President for the AFP to prevent or dispersal and warrantless arrest of the KMU and NAFLU-KMU
suppress lawless violence. The proclamation is sustained by Section members during their rallies, in the absence of proof that these
18, Article VII of the Constitution and the relevant jurisprudence petitioners were committing acts constituting lawless violence,
discussed earlier. However, PP 1017’s extraneous provisions giving the invasion or rebellion and violating BP 880; the imposition of standards
President express or implied power (1) to issue decrees; (2) to direct on media or any form of prior restraint on the press, as well as the
the AFP to enforce obedience to all laws even those not related to warrantless search of the Tribune  offices and whimsical seizure of its
lawless violence as well as decrees promulgated by the President; and articles for publication and other materials, are
(3) to impose standards on media or any form of prior restraint on the declared UNCONSTITUTIONAL.
press, are ultra vires and unconstitutional. The Court also rules that
under Section 17, Article XII of the Constitution, the President, in the
No costs.
absence of a legislation, cannot take over privately-owned public
utility and private business affected with public interest.
SO ORDERED.

16
17