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Republic of the Philippines SUPREME COURT anila G.R. No. 171396 May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TA ADA III, RONALD LLAMAS, !. !ARR" L. RO#UE, $R., $OEL RUIZ %UTU"AN, ROGER R. RA"EL, GAR" S. MALLARI, ROMEL REGALADO %AGARES, C!RISTOP!ER F.C. %OLASTIG, Petitioners, vs! GLORIA MACAPAGAL&ARRO"O, AS PRESIDENT AND COMMANDER&IN&C!IEF, E'ECUTIVE SECRETAR" EDUARDO ERMITA, !ON. AVELINO CRUZ II, SECRETAR" OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, C!IEF OF STAFF, ARMED FORCES OF T!E P!ILIPPINES, DIRECTOR GENERAL ARTURO LOMI%AO, C!IEF, P!ILIPPINE NATIONAL POLICE, Respondents! "#####################################" G.R. No. 171(09 May 3, 2006

NI EZ CAC!O&OLIVARES AND TRI%UNE PU%LIS!ING CO., INC., Petitioners, vs! !ONORA%LE SECRETAR" EDUARDO ERMITA AND !ONORA%LE DIRECTOR GENERAL ARTURO C. LOMI%AO, Respondents! "#####################################" G.R. No. 171()* May 3, 2006

FRANCIS $OSEP! G. ESCUDERO, $OSEP! A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. A#UINO, MARIO $. AGU$A, SATUR C. OCAMPO, MU$IV S. !ATAMAN, $UAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL $OSEL $. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO %. MAGTU%O, $USTIN MARC S%. C!IPECO, ROILO GOLEZ, DARLENE ANTONINO&CUSTODIO, LORETTA ANN P. ROSALES, $OSEL G. VIRADOR, RAFAEL V. MARIANO, GIL%ERT C. REMULLA, FLORENCIO G. NOEL, ANA T!ERESIA !ONTIVEROS&%ARA#UEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI $AVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LI%ERTIES REPRESENTED %" AMADO GAT INCIONG, Petitioners, vs! EDUARDO R. ERMITA, E'ECUTIVE SECRETAR", AVELINO $. CRUZ, $R., SECRETAR", DND RONALDO V. PUNO, SECRETAR", DILG, GENEROSO SENGA, AFP C!IEF OF STAFF, ARTURO LOMI%AO, C!IEF PNP, Respondents! "#####################################" G.R. No. 171()3 May 3, 2006

+ILUSANG MA"O UNO, REPRESENTED %" ITS C!AIRPERSON ELMER C. LA%OG AND SECRETAR" GENERAL $OEL MAGLUNSOD, NATIONAL FEDERATION OF LA%OR UNIONS , +ILUSANG MA"O UNO -NAFLU&+MU., REPRESENTED

%" ITS NATIONAL PRESIDENT, $OSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, $R., AND RO#UE M. TAN,Petitioners, vs! !ER E'CELLENC", PRESIDENT GLORIA MACAPAGAL&ARRO"O, T!E !ONORA%LE E'ECUTIVE SECRETAR", EDUARDO ERMITA, T!E C!IEF OF STAFF, ARMED FORCES OF T!E P!ILIPPINES, GENEROSO SENGA, AND T!E PNP DIRECTOR GENERAL, ARTURO LOMI%AO, Respondents! "#####################################" G.R. No. 171(00 May 3, 2006

ALTERNATIVE LA/ GROUPS, INC. -ALG., Petitioner, vs! E'ECUTIVE SECRETAR" EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMI%AO, Respondents! G.R. No. 171()9 May 3, 2006

$OSE ANSELMO I. CADIZ, FELICIANO M. %AUTISTA, ROMULO R. RIVERA, $OSE AMOR M. AMORADO, ALICIA A. RISOS&VIDAL, FELIMON C. A%ELITA III, MANUEL P. LEGASPI, $.%. $OV" C. %ERNA%E, %ERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED %AR OF T!E P!ILIPPINES -I%P., Petitioners, vs! !ON. E'ECUTIVE SECRETAR" EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN !IS CAPACIT" AS AFP C!IEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMI%AO, IN !IS CAPACIT" AS PNP C!IEF, Respondents! "#####################################" G.R. No. 171(2( May 3, 2006

LOREN %. LEGARDA, Petitioner, vs! GLORIA MACAPAGAL&ARRO"O, IN !ER CAPACIT" AS PRESIDENT AND COMMANDER&IN&C!IEF0 ARTURO LOMI%AO, IN !IS CAPACIT" AS DIRECTOR&GENERAL OF T!E P!ILIPPINE NATIONAL POLICE -PNP.0 GENEROSO SENGA, IN !IS CAPACIT" AS C!IEF OF STAFF OF T!E ARMED FORCES OF T!E P!ILIPPINES -AFP.0 AND EDUARDO ERMITA, IN !IS CAPACIT" AS E'ECUTIVE SECRETAR", Respondents! $%&'S'(N SANDOVAL&GUTIERREZ, J.1 )ll po*ers need some restraint+ practical ad,ustments rather than ri-id formula are necessary! 1 Superior stren-th . the use of force . cannot ma/e *ron-s into ri-hts! 'n this re-ard, the courts should be vi-ilant in safe-uardin- the constitutional ri-hts of the citi0ens, specifically their liberty! &hief 1ustice )rtemio 2! Pan-aniban3s philosophy of liberty is thus most relevant! 4e said5 6 I2 3a454 627o87629 86:5;<y, <=5 43a854 o> ?@4<635 4=o@8A B569= =5a768y a9a624< 9o75;2C52< a2A 62 >a7o; o> <=5 Doo;, <=5 oDD;5445A, <=5 Ca;962a86E5A, <=5 A64Do445445A a2A <=5 B5aF!6 7a*s and actions that restrict fundamental ri-hts come to the courts 6*ith a heavy presumption a-ainst their constitutional validity!62 These seven 89: consolidated petitions for certiorari and prohibition alle-e that in issuin- Presidential Proclamation No! 1019 8PP

1019: and ;eneral (rder No! < 8;!(! No! <:, President ;loria acapa-al#)rroyo committed -rave abuse of discretion! Petitioners contend that respondent officials of the ;overnment, in their professed efforts to defend and preserve democratic institutions, are actually tramplin- upon the very freedom -uaranteed and protected by the &onstitution! 4ence, such issuances are void for bein- unconstitutional! (nce a-ain, the &ourt is faced *ith an a-e#old but persistently modern problem! How does the Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license=3 (n February 2>, 200?, as the nation celebrated the 20th )nniversary of the Edsa People Power I, President )rroyo issued PP 1019 declarin- a state of national emer-ency, thus5 NO/, T!EREFORE, ', ;loria acapa-al#)rroyo, President of the Republic of the Philippines and &ommander#in#&hief of the )rmed Forces of the Philippines, by virtue of the po*ers vested upon me by Section 1@, )rticle 9 of the Philippine &onstitution *hich states that5 6The President! ! ! *henever it becomes necessary, ! ! ! may call out 8the: armed forces to prevent or suppress! ! !rebellion! ! !,6 and in my capacity as their &ommander#in#&hief, Ao =5;5:y 3oCCa2A <=5 A;C5A Fo;354 o> <=5 P=686DD6254, <o Ca62<a62 8aB a2A o;A5; <=;o@9=o@< <=5 P=686DD6254, D;5752< o; 4@DD;544 a88 >o;C4 o> 8aB8544 76o85235 a4 B588 a4 a2y a3< o> 624@;;53<6o2 o; ;5:5886o2 a2A <o 52>o;35 o:5A65235 <o a88 <=5 8aB4 a2A <o a88 A53;554, o;A5;4 a2A ;59@8a<6o24 D;oC@89a<5A :y C5 D5;4o2a88y o; @Do2 Cy A6;53<6o2+ and a4 D;o76A5A 62 S53<6o2 17, A;<6385 12 o> <=5 Co24<6<@<6o2 Ao =5;5:y A538a;5 a S<a<5 o> Na<6o2a8 EC5;9523y. She cited the follo*in- facts as bases5 /!EREAS, over these past months, elements in the Do86<63a8 oDDo46<6o2 =a75 3o24D6;5A B6<= a@<=o;6<a;6a24 o> <=5 5G<;5C5 L5>< ;5D;5452<5A :y <=5 NDF&CPP&NPA a2A <=5 5G<;5C5 R69=<, ;5D;5452<5A :y C686<a;y aA752<@;64<4 , <=5 =64<o;63a8 525C654 o> <=5 A5Co3;a<63 P=686DD625 S<a<5 . *ho are no* in a tactical alliance and en-a-ed in a concerted and systematic conspiracy, over a broad front, to brin- do*n the duly constituted ;overnment elected in ay 200>+ /!EREAS, these conspirators have repeatedly tried to brin- do*n the President+ /!EREAS, <=5 38a6C4 o> <=545 585C52<4 =a75 :552 ;53F85448y Ca926>65A :y 35;<a62 459C52<4 o> <=5 2a<6o2a8 C5A6a0 /!EREAS, this series of actions is hurtin- the Philippine State . by obstructin- -overnance includin- =62A5;629 <=5 9;oB<= o> <=5 53o2oCy a2A 4a:o<a9629 <=5 D5oD85H4 3o2>6A5235 62 9o75;2C52< a2A <=56; >a6<= 62 <=5 >@<@;5 o> <=64 3o@2<;y+ /!EREAS, these a3<6o24 a;5 aA75;458y a>>53<629 <=5 53o2oCy0 /!EREAS, <=545 a3<676<654 9675 <o<a86<a;6a2 >o;354 o> :o<= <=5 5G<;5C5 L5>< a2A 5G<;5C5 R69=< <=5 oD52629 <o 62<5246>y <=56; a7oB5A a6C4 <o :;629 AoB2 <=5 A5Co3;a<63 P=686DD625 S<a<5+ /!EREAS, )rticle 2, Section > of the our &onstitution ma/es the defense and preservation of the democratic institutions and the State the primary duty of ;overnment+ /!EREAS, the activities above#described, their conseAuences, ramifications and collateral effects constitute a 385a; a2A D;5452< Aa295; to the safety and the inte-rity of the Philippine State and of the Filipino people+ (n the same day, the President issued ;! (! No! < implementin- PP 1019, thus5 /!EREAS, over these past months, elements in the political opposition have conspired *ith authoritarians of the e"treme 7eft, represented by the N$F#&PP#NP) and the e"treme Ri-ht, represented by military adventurists # the historical enemies of the

democratic Philippine State . and *ho are no* in a tactical alliance and en-a-ed in a concerted and systematic conspiracy, over a broad front, to brin- do*n the duly#constituted ;overnment elected in ay 200>+ /!EREAS, these conspirators have repeatedly tried to brin- do*n our republican -overnment+ /!EREAS, the claims of these elements have been rec/lessly ma-nified by certain se-ments of the national media+ /!EREAS, these series of actions is hurtin- the Philippine State by obstructin- -overnance, includin- hinderin- the -ro*th of the economy and sabota-in- the people3s confidence in the -overnment and their faith in the future of this country+ /!EREAS, these actions are adversely affectin- the economy+ /!EREAS, these activities -ive totalitarian forces+ of both the e"treme 7eft and e"treme Ri-ht the openin- to intensify their avo*ed aims to brin- do*n the democratic Philippine State+ /!EREAS, )rticle 2, Section > of our &onstitution ma/es the defense and preservation of the democratic institutions and the State the primary duty of ;overnment+ /!EREAS, the activities above#described, their conseAuences, ramifications and collateral effects constitute a clear and present dan-er to the safety and the inte-rity of the Philippine State and of the Filipino people+ /!EREAS, Proclamation 1019 date February 2>, 200? has been issued declarin- a State of National %mer-ency+ NO/, T!EREFORE, I GLORIA MACAPAGAL&ARRO"O, by virtue of the po*ers vested in me under the &onstitution as President of the Republic of the Philippines, and &ommander#in#&hief of the Republic of the Philippines, and pursuant to Proclamation No! 1019 dated February 2>, 200?, do hereby call upon the )rmed Forces of the Philippines 8)FP: and the Philippine National Police 8PNP:, to prevent and suppress acts of terrorism and la*less violence in the country+ ' hereby direct the &hief of Staff of the )FP and the &hief of the PNP, as *ell as the officers and men of the )FP and PNP, <o 6CC5A6a<58y 3a;;y o@< <=5 253544a;y a2A aDD;oD;6a<5 a3<6o24 a2A C5a4@;54 <o 4@DD;544 a2A D;5752< a3<4 o> <5;;o;64C a2A 8aB8544 76o85235! (n arch 3, 200?, e"actly one *ee/ after the declaration of a state of national emer-ency and after all these petitions had been filed, the President lifted PP 1019! She issued Proclamation No! 1021 *hich reads5 /!EREAS, pursuant to Section 1@, )rticle 2'' and Section 19, )rticle B'' of the &onstitution, Proclamation No! 1019 dated February 2>, 200?, *as issued declarin- a state of national emer-ency+ /!EREAS, by virtue of ;eneral (rder No!< and No!? dated February 2>, 200?, *hich *ere issued on the basis of Proclamation No! 1019, the )rmed Forces of the Philippines 8)FP: and the Philippine National Police 8PNP:, *ere directed to maintain la* and order throu-hout the Philippines, prevent and suppress all form of la*less violence as *ell as any act of rebellion and to underta/e such action as may be necessary+ /!EREAS, the )FP and PNP have effectively prevented, suppressed and Auelled the acts la*less violence and rebellion+ NO/, T!EREFORE, I, GLORIA MACAPAGAL&ARRO"O, President of the Republic of the Philippines, by virtue of the po*ers vested in me by la*, hereby A538a;5 <=a< <=5 4<a<5 o> 2a<6o2a8 5C5;9523y =a4 35a45A <o 5G64<. 'n their presentation of the factual bases of PP 1019 and ;!(! No! <, respondents stated that the pro"imate cause behind the

e"ecutive issuances *as the conspiracy amon- some military officers, leftist insur-ents of the Ne* People3s )rmy 8NP):, and some members of the political opposition in a plot to unseat or assassinate President )rroyo! > They considered the aim to oust or assassinate the President and ta/e#over the rei-ns of -overnment as a clear and present dan-er! $urin- the oral ar-uments held on arch 9, 200?, the Solicitor ;eneral specified the facts leadin- to the issuance of PP 1019 and ;!(! No! <! S6926>63a2<8y, <=5;5 Ba4 2o ;5>@<a<6o2 >;oC D5<6<6o25;4H 3o@24584. The Solicitor ;eneral ar-ued that the intent of the &onstitution is to -ive full A643;5<6o2a;y DoB5;4 to the President in determinin- the necessity of callin- out the armed forces! 4e emphasi0ed that none of the petitioners has sho*n that PP 1019 *as *ithout factual bases! Chile he e"plained that it is not respondents3 tas/ to state the facts behind the Auestioned Proclamation, ho*ever, they are presentin- the same, narrated hereunder, for the elucidation of the issues! (n 1anuary 19, 200?, &aptain Nathaniel Rabon0a and First 7ieutenants Sonny Sarmiento, 7a*rence San 1uan and Patricio Dumidan-, members of the a-dalo ;roup indicted in the (a/*ood mutiny, escaped their detention cell in Fort Donifacio, Ta-ui- &ity! 'n a public statement, they vo*ed to remain defiant and to elude arrest at all costs! They called upon the people to 6show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left arms. 6 < (n February 19, 200?, the authorities -ot hold of a document entitled 6 Oplan Hackle I 6 *hich detailed plans for bombin-s and attac/s durin- the Philippine ilitary )cademy )lumni 4omecomin- in Da-uio &ity! The plot *as to assassinate selected tar-ets includin- some cabinet members and President )rroyo herself! ? Epon the advice of her security, President )rroyo decided not to attend the )lumni 4omecomin-! The ne"t day, at the hei-ht of the celebration, a bomb *as found and detonated at the P ) parade -round! (n February 21, 200?, 7t! San 1uan *as recaptured in a communist safehouse in Datan-as province! Found in his possession *ere t*o 82: flash dis/s containin- minutes of the meetin-s bet*een members of the a-dalo ;roup and the National People3s )rmy 8NP):, a tape recorder, audio cassette cartrid-es, dis/ettes, and copies of subversive documents! 9 Prior to his arrest, 7t! San 1uan announced throu-h $FR4 that the 6 agdalo!s "#"ay would be on $ebruary %&, %''(, the %'th )nni*ersary of Edsa I.+ (n February 23, 200?, PNP &hief )rturo 7omibao intercepted information that members of the PNP# Special )ction Force *ere plannin- to defect! Thus, he immediately ordered S)F &ommandin- ;eneral arcelino Franco, 1r! to +disa*ow+ any defection! The latter promptly obeyed and issued a public statement5 6)ll ,)$ units are under the effecti*e control of responsible and trustworthy officers with pro*en integrity and un-uestionable loyalty. 6 (n the same day, at the house of former &on-ressman Pepin- &o,uan-co, President &ory )Auino3s brother, businessmen and mid#level -overnment officials plotted moves to brin- do*n the )rroyo administration! Nelly Sindayen of T' % a-a0ine reported that Pastor Saycon, lon-time )rroyo critic, called a E!S! -overnment official about his -roup3s plans if President )rroyo is ousted! Saycon also phoned a man code#named $elta! Saycon identified him as DG;en! $anilo 7im, &ommander of the )rmy3s elite Scout Ran-er! 7im said 6it was all systems go for the planned mo*ement against )rroyo.6@ DG;en! $anilo 7im and Dri-ade &ommander &ol! )riel Huerubin confided to ;en! ;eneroso Sen-a, &hief of Staff of the )rmed Forces of the Philippines 8)FP:, that a hu-e number of soldiers *ould ,oin the rallies to provide a critical mass and armed component to the )nti#)rroyo protests to be held on February 2>, 200<! )ccordin- to these t*o 82: officers, there *as no *ay they could possibly stop the soldiers because they too, *ere brea/in- the chain of command to ,oin the forces foist to unseat the President! 4o*ever, ;en! Sen-a has remained faithful to his &ommander#in#&hief and to the chain of command! 4e immediately too/ custody of DG;en! 7im and directed &ol! Huerubin to return to the Philippine arines 4eadAuarters in Fort Donifacio! %arlier, the &PP#NP) called for intensification of political and revolutionary *or/ *ithin the military and the police establishments in order to for-e alliances *ith its members and /ey officials! NP) spo/esman ;re-orio 6Ia Ro-er6 Rosal declared5 6 .he Communist Party and re*olutionary mo*ement and the entire people look forward to the possibility in the coming year of

accomplishing its immediate task of bringing down the )rroyo regime/ of rendering it to weaken and unable to rule that it will not take much longer to end it!6J (n the other hand, &esar Renerio, spo/esman for the National $emocratic Front 8N$F: at North &entral indanao, publicly announced5 6)nti#)rroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the families of )$P officers and enlisted personnel who undertake counter#insurgency operations in the field. 6 4e claimed that *ith the forces of the national democratic movement, the anti#)rroyo conservative political parties, coalitions, plus the -roups that have been reinforcin- since 1une 200<, it is probable that the President3s ouster is nearin- its concludin- sta-e in the first half of 200?! Respondents further claimed that the bombin- of telecommunication to*ers and cell sites in Dulacan and Dataan *as also considered as additional factual basis for the issuance of PP 1019 and ;!(! No! <! So is the raid of an army outpost in Den-uet resultin- in the death of three 83: soldiers! )nd also the directive of the &ommunist Party of the Philippines orderin- its front or-ani0ations to ,oin <,000 etro anila radicals and 2<,000 more from the provinces in mass protests! 10 Dy midni-ht of February 23, 200?, the President convened her security advisers and several cabinet members to assess the -ravity of the fermentin- peace and order situation! She directed both the )FP and the PNP to account for all their men and ensure that the chain of command remains solid and undivided! To protect the youn- students from any possible trouble that mi-ht brea/ loose on the streets, the President suspended classes in all levels in the entire National &apital Re-ion! Fo; <=56; Da;<, D5<6<6o25;4 36<5A <=5 5752<4 <=a< >o88oB5A a><5; <=5 644@a235 o> PP 1017 a2A G.O. No. *! 'mmediately, the (ffice of the President announced the cancellation of all pro-rams and activities related to the 20th anniversary celebration of Edsa People Power I+ and revo/ed the permits to hold rallies issued earlier by the local -overnments! 1ustice Secretary Raul ;on0ales stated that political rallies, *hich to the President3s mind *ere or-ani0ed for purposes of destabili0ation, are cancelled!Presidential &hief of Staff ichael $efensor announced that 6 warrantless arrests and take#o*er of facilities, including media, can already be implemented !611 Endeterred by the announcements that rallies and public assemblies *ould not be allo*ed, -roups of protesters 8members of 0ilusang ayo 1no KI EL and National Federation of 7abor Enions#0ilusang ayo 1no KN)F7E#I EL:, marched from various parts of etro anila *ith the intention of conver-in- at the %$S) shrine! Those *ho *ere already near the %$S) site *ere violently dispersed by hu-e clusters of anti#riot police! The *ell#trained policemen used truncheons, bi- fiber -lass shields, *ater cannons, and tear -as to stop and brea/ up the marchin- -roups, and scatter the massed participants! The same police action *as used a-ainst the protesters marchin- for*ard to &ubao, Hue0on &ity and to the corner of Santolan Street and %$S)! That same evenin-, hundreds of riot policemen bro/e up an %$S) celebration rally held alon- )yala )venue and Paseo de Ro"as Street in a/ati &ity!12 )ccordin- to petitioner 0ilusang ayo 1no, the police cited PP 1019 as the -round for the dispersal of their assemblies!

$urin- the dispersal of the rallyists alon- %$S), police arrested 8*ithout *arrant: petitioner Randolf S! $avid, a professor at the Eniversity of the Philippines and ne*spaper columnist! )lso arrested *as his companion, Ronald 7lamas, president of party# list )kbayan! )t around 12520 in the early mornin- of February 2<, 200?, operatives of the &riminal 'nvesti-ation and $etection ;roup 8&'$;: of the PNP, on the basis of PP 1019 and ;!(! No! <, raided the "aily .ribune offices in anila! The raidin- team confiscated ne*s stories by reporters, documents, pictures, and moc/#ups of the Saturday issue! Policemen from &amp &rame in Hue0on &ity *ere stationed inside the editorial and business offices of the ne*spaper+ *hile policemen from the anila Police $istrict *ere stationed outside the buildin-! 13 ) fe* minutes after the search and sei0ure at the "aily .ribune offices, the police surrounded the premises of another pro#

opposition paper,

alaya, and its sister publication, the tabloid )bante!

The raid, accordin- to Presidential &hief of Staff ichael $efensor, is +meant to show a 2strong presence,! to tell media outlets not to conni*e or do anything that would help the rebels in bringing down this go*ernment.+ The PNP *arned that it *ould ta/e over any media or-ani0ation that *ould not follo* +standards set by the go*ernment during the state of national emergency.+ $irector ;eneral 7omibao stated that +if they do not follow the standards 3 and the standards are # if they would contribute to instability in the go*ernment, or if they do not subscribe to what is in 4eneral Order 5o. 6 and Proc. 5o. 7'78 3 we will recommend a 2takeo*er.!+ National Telecommunications3 &ommissioner Ronald Solis ur-ed television and radio net*or/s to +cooperate+ *ith the -overnment for the duration of the state of national emer-ency! 4e as/ed for +balanced reporting+ from broadcasters *hen coverin- the events surroundin- the coup attempt foiled by the -overnment! 4e *arned that his a-ency *ill not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media covera-e *hen the national security is threatened!1> )lso, on February 2<, 200?, the police arrested &on-ressman &rispin Deltran, representin- the )nakpawis Party and &hairman of 0ilusang ayo 1no 8I E:, *hile leavin- his farmhouse in Dulacan! The police sho*ed a *arrant for his arrest dated 1J@<! Deltran3s la*yer e"plained that the *arrant, *hich stemmed from a case of incitin- to rebellion filed durin- the arcos re-ime, had lon- been Auashed! Deltran, ho*ever, is not a party in any of these petitions! Chen members of petitioner I E *ent to &amp &rame to visit Deltran, they *ere told they could not be admitted because of PP 1019 and ;!(! No! <! T*o members *ere arrested and detained, *hile the rest *ere dispersed by the police! 9ayan una Representative Satur (campo eluded arrest *hen the police *ent after him durin- a public forum at the Sulo 4otel in Hue0on &ity! Dut his t*o drivers, identified as Roel and )rt, *ere ta/en into custody! Retired a,or ;eneral Ramon ontaMo, former head of the Philippine &onstabulary, *as arrested *hile *ith his *ife and -olfmates at the (rchard ;olf and &ountry &lub in $asmariMas, &avite! )ttempts *ere made to arrest )nakpawis Representative Satur (campo, Representative Rafael ariano, 9ayan una Representative Teodoro &asiMo and ;abriela Representative 7i0a a0a! 9ayan una Representative 1osel 2irador *as arrested at the P)7 Tic/et (ffice in $avao &ity! 7ater, he *as turned over to the custody of the 4ouse of Representatives *here the 6Datasan <6 decided to stay indefinitely! 7et it be stressed at this point that the alle-ed violations of the ri-hts of Representatives Deltran, Satur (campo, et al!, are not bein- raised in these petitions! (n arch 3, 200?, President )rroyo issued PP 1021 declarin- that the state of national emer-ency has ceased to e"ist!

'n the interim, these seven 89: petitions challen-in- the constitutionality of PP 1019 and ;!(! No! < *ere filed *ith this &ourt a-ainst the above#named respondents! Three 83: of these petitions impleaded President )rroyo as respondent! 'n G.R. No. 171396, petitioners Randolf S! $avid, et al! assailed PP 1019 on the -rounds that -1. it encroaches on the emer-ency po*ers of &on-ress+ -2. itis a subterfu-e to avoid the constitutional reAuirements for the imposition of martial la*+ and -3. it violates the constitutional -uarantees of freedom of the press, of speech and of assembly! 'n G.R. No. 171(09, petitioners Nine0 &acho#(livares and .ribune Publishin- &o!, 'nc! challen-ed the &'$;3s act of raidinthe "aily .ribune offices as a clear case of 6censorship6 or 6prior restraint!6 They also claimed that the term 6emer-ency6 refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is 6 absolutely no emergency6 that *arrants the issuance of PP 1019! 'n G.R. No. 171()*, petitioners herein are Representative Francis 1oseph ;! %scudero, and t*enty one 821: other members of

the 4ouse of Representatives, includin- Representatives Satur (campo, Rafael ariano, Teodoro &asiMo, 7i0a a0a, and 1osel 2irador. They asserted that PP 1019 and ;!(! No! < constitute 6usurpation of legislati*e powers6+ 6*iolation of freedom of e:pression6 and 6a declaration of martial law!6 They alle-ed that President )rroyo 6-ra*ely abused her discretion in calling out the armed forces without clear and *erifiable factual basis of the possibility of lawless *iolence and a showing that there is necessity to do so.6 'n G.R. No. 171()3,petitioners I E, N)F7E#I E, and their members averred that PP 1019 and ;!(! No! < are unconstitutional because -1. they arro-ate unto President )rroyo the po*er to enact la*s and decrees+ -2. their issuance *as *ithout factual basis+ and -3. they violate freedom of e"pression and the ri-ht of the people to peaceably assemble to redress their -rievances! 'n G.R. No. 171(00, petitioner )lternative 7a* ;roups, 'nc! 8)7;': alle-ed that PP 1019 and ;!(! No! < are unconstitutional because they violate -a. Section >1< of )rticle '', -:. Sections 1,1? 2,19 and >1@ of )rticle ''', -3.Section 231J of )rticle 2', and -A. Section 1920 of )rticle B'' of the &onstitution! 'n G.R. No. 171()9, petitioners 1ose )nselmo '! &adi0 et al., alle-ed that PP 1019 is an 6arbitrary and unlawful e:ercise by the President of her artial Law powers!6 )nd assumin- that PP 1019 is not really a declaration of artial 7a*, petitioners ar-ued that 6it amounts to an e:ercise by the President of emergency powers without congressional appro*al. 6 'n addition, petitioners asserted that PP 1019 6goes beyond the nature and function of a proclamation as defined under the ;e*ised )dministrati*e Code.+ )nd lastly, in G.R. No. 171(2(,petitioner7oren D! 7e-arda maintained that PP 1019 and ;!(! No! < are 6 unconstitutional for being *iolati*e of the freedom of e:pression, including its cognate rights such as freedom of the press and the right to access to information on matters of public concern, all guaranteed under )rticle III, ,ection & of the 7<=8 Constitution. 6 'n this re-ard, she stated that these issuances prevented her from fully prosecutin- her election protest pendin- before the Presidential %lectoral Tribunal! 'n respondents3 &onsolidated &omment, the Solicitor ;eneral countered that5 first, the petitions should be dismissed for beinmoot+ second,petitioners in ;!R! Nos! 191>00 8)7;':, 191>2> 87e-arda:, 191>@3 8I E et al!:, 191>@< 8%scudero et al.: and 191>@J 8&adi0 et al!: have no le-al standin-+ third, it is not necessary for petitioners to implead President )rroyo as respondent+ fourth, PP 1019 has constitutional and le-al basis+ and fifth, PP 1019 does not violate the people3s ri-ht to free e"pression and redress of -rievances! (n arch 9, 200?, the &ourt conducted oral ar-uments and heard the parties on the above interloc/in- issues *hich may be summari0ed as follo*s5 A. PROCEDURAL1 1. Chether the issuance of PP 1021 renders the petitions moot and academic! 2. Chether petitioners in 171()* 8%scudero et al.:, G.R. No4. 171(00 8)7;':, 171()3 8I E et al!:, 171()98&adi0 et al!:, and 171(2( 87e-arda: have le-al standin-! %. SU%STANTIVE1 1. Chetherthe Supreme &ourt can revie* the factual bases of PP 1019! 2. Chether PP 1019 and ;!(! No! < are unconstitutional! a. Facial &hallen-e

:. &onstitutional Dasis 3. )s )pplied &hallen-e A. PROCEDURAL First, *e must resolve the procedural roadbloc/s! I- Moot and Academic Principle (ne of the -reatest contributions of the )merican system to this country is the concept of ,udicial revie* enunciated in adison.21 This concept rests on the e"traordinary simple foundation ## arbury *.

The &onstitution is the supreme la*! 't *as ordained by the people, the ultimate source of all political authority! 't confers limited po*ers on the national -overnment! " " " I> <=5 9o75;2C52< 3o2436o@48y o; @23o2436o@48y o75;4<5D4 <=545 86C6<a<6o24 <=5;5 C@4< :5 4oC5 a@<=o;6<y 3oCD5<52< <o =o8A 6< 62 3o2<;o8, <o <=Ba;< 6<4 @23o24<6<@<6o2a8 a<<5CD<, a2A <=@4 <o 762A63a<5 a2A D;545;75 6276o8a<5 <=5 B688 o> <=5 D5oD85 a4 5GD;5445A 62 <=5 Co24<6<@<6o2. T=64 DoB5; <=5 3o@;<4 5G5;3645. T=64 64 <=5 :59622629 a2A <=5 52A o> <=5 <=5o;y o> ?@A636a8 ;5765B!22 Dut the po*er of ,udicial revie* does not repose upon the courts a 6self#startin- capacity!6 23 &ourts may e"ercise such po*er only *hen the follo*in- reAuisites are present5 first, there must be an actual case or controversy+second, petitioners have to raise a Auestion of constitutionality+ third, the constitutional Auestion must be raised at the earliest opportunity+ and fourth, the decision of the constitutional Auestion must be necessary to the determination of the case itself! 2> Respondents maintain that the first and second reAuisites are absent, hence, *e shall limit our discussion thereon! )n actual case or controversy involves a conflict of le-al ri-ht, an opposite le-al claims susceptible of ,udicial resolution! 't is 6definite and concrete, touchin- the le-al relations of parties havin- adverse le-al interest+6 a real and substantial controversy admittin- of specific relief!2< The Solicitor ;eneral refutes the e"istence of such actual case or controversy, contendin- that the present petitions *ere rendered 6moot and academic6 by President )rroyo3s issuance of PP 1021! Such contention lac/s merit! ) moot and academic case is one that ceases to present a ,usticiable controversy by virtue of supervenin- events, 2? so that a declaration thereon *ould be of no practical use or value! 29 ;enerally, courts decline ,urisdiction over such case2@ or dismiss it on -round of mootness!2J The &ourt holds that President )rroyo3s issuance of PP 1021 did not render the present petitions moot and academic! $urin- the ei-ht 8@: days that PP 1019 *as operative, the police officers, accordin- to petitioners, committed ille-al acts in implementinit! A;5 PP 1017 a2A G.O. No. * 3o24<6<@<6o2a8 o; 7a86AI Do <=5y ?@4<6>y <=545 a88595A 68859a8 a3<4I These are the vital issues that must be resolved in the present petitions! 't must be stressed that 6 a2 @23o24<6<@<6o2a8 a3< 64 2o< a 8aB, 6< 3o2>5;4 2o ;69=<4, 6< 6CDo454 2o A@<654, 6< a>>o;A4 2o D;o<53<6o20 6< 64 62 859a8 3o2<5CD8a<6o2, 62oD5;a<675!630 The 6moot and academic6 principle is not a ma-ical formula that can automatically dissuade the courts in resolvin- a case! &ourts *ill decide cases, other*ise moot and academic, if5 first, there is a -rave violation of the &onstitution+31 second, the e"ceptional character of the situation and the paramount public interest is involved+ 32third, *hen constitutional issue raised reAuires formulation of controllin- principles to -uide the bench, the bar, and the public+ 33 and fourth, the case is capable of repetition yet evadin- revie*!3> )ll the fore-oin- e"ceptions are present here and ,ustify this &ourt3s assumption of ,urisdiction over the instant petitions!

Petitioners alle-ed that the issuance of PP 1019 and ;!(! No! < violates the &onstitution! There is no Auestion that the issues bein- raised affect the public3s interest, involvin- as they do the people3s basic ri-hts to freedom of e"pression, of assembly and of the press! oreover, the &ourt has the duty to formulate -uidin- and controllin- constitutional precepts, doctrines or rules! 't has the symbolic function of educatin- the bench and the bar, and in the present petitions, <=5 C686<a;y a2A <=5 Do8635, on the e"tent of the protection -iven by constitutional -uarantees! 3< )nd lastly, respondents3 contested actions are capable of repetition! &ertainly, the petitions are sub,ect to ,udicial revie*! 'n their attempt to prove the alle-ed mootness of this case, respondents cited &hief 1ustice )rtemio 2! Pan-aniban3s Separate (pinion in ,anlakas *. E:ecuti*e ,ecretary!3? 4o*ever, they failed to ta/e into account the &hief 1ustice3s very statement that an other*ise 6moot6 case may still be decided 6pro*ided the party raising it in a proper case has been and>or continues to be pre?udiced or damaged as a direct result of its issuance. 6 The present case falls ri-ht *ithin this e"ception to the mootness rule pointed out by the &hief 1ustice! II- Legal Standing 'n vie* of the number of petitioners suin- in various personalities, the &ourt deems it imperative to have a more than passindiscussion on le-al standin- or locus standi. Locus standi is defined as 6a ri-ht of appearance in a court of ,ustice on a -iven Auestion!6 39 'n private suits, standin- is -overned by the 6real#parties#in interest6 rule as contained in Section 2, Rule 3 of the 1JJ9 Rules of &ivil Procedure, as amended! 't provides that 6575;y a3<6o2 C@4< :5 D;o453@<5A o; A5>52A5A 62 <=5 2aC5 o> <=5 ;5a8 Da;<y 62 62<5;54< !6 )ccordin-ly, the 6real#party#in interest6 is 6<=5 Da;<y B=o 4<a2A4 <o :5 :525>6<5A o; 62?@;5A :y <=5 ?@A9C52< 62 <=5 4@6< o; <=5 Da;<y 52<6<85A <o <=5 a7a684 o> <=5 4@6<.63@ Succinctly put, the plaintiff3s standin- is based on his o*n ri-ht to the relief sou-ht! The difficulty of determinin- locus standi arises in D@:863 4@6<4! 4ere, the plaintiff *ho asserts a 6public ri-ht6 in assailin- an alle-edly ille-al official action, does so as a representative of the -eneral public! 4e may be a person *ho is affected no differently from any other person! 4e could be suin- as a 6stran-er,6 or in the cate-ory of a 6citi0en,6 or Nta"payer!6 'n either case, he has to adeAuately sho* that he is entitled to see/ ,udicial protection! 'n other *ords, he has to ma/e out a sufficient interest in the vindication of the public order and the securin- of relief as a 6citi0en6 or 6ta"payer! &ase la* in most ,urisdictions no* allo*s both 6citi0en6 and 6ta"payer6 standin- in public actions! The distinction *as first laid do*n in 9eauchamp *. ,ilk,3J *here it *as held that the plaintiff in a ta"payer3s suit is in a different cate-ory from the plaintiff in a citi0en3s suit! I2 <=5 >o;C5;, <=5 D8a62<6>> 64 a>>53<5A :y <=5 5GD52A6<@;5 o> D@:863 >@2A4, B=685 62 <=5 8a<<5;, =5 64 :@< <=5 C5;5 624<;@C52< o> <=5 D@:863 3o235;2. )s held by the Ne* Oor/ Supreme &ourt in People e: rel Case *. Collins5>0 6I2 Ca<<5; o> C5;5 D@:863 ;69=<, =oB575;J<=5 D5oD85 a;5 <=5 ;5a8 Da;<654JI< 64 a< 85a4< <=5 ;69=<, 6> 2o< <=5 A@<y, o> 575;y 36<6E52 <o 62<5;>5;5 a2A 455 <=a< a D@:863 o>>5235 :5 D;oD5;8y D@;4@5A a2A D@264=5A, a2A <=a< a D@:863 9;657a235 :5 ;5C5A65A !6 Cith respect to ta"payer3s suits, .err *. @ordan>1 held that 6<=5 ;69=< o> a 36<6E52 a2A a <aGDay5; <o Ca62<a62 a2 a3<6o2 62 3o@;<4 <o ;54<;a62 <=5 @28aB>@8 @45 o> D@:863 >@2A4 <o =64 62?@;y 3a22o< :5 A5265A.6 4o*ever, to prevent ,ust about any person from see/in- ,udicial interference in any official policy or act *ith *hich he disa-reed *ith, and thus hinders the activities of -overnmental a-encies en-a-ed in public service, the Enited State Supreme &ourt laid do*n the more strin-ent 6A6;53< 62?@;y6 <54< in E: Parte Le*itt,>2 later reaffirmed in.ileston *. 1llman.>3 The same &ourt ruled that for a private individual to invo/e the ,udicial po*er to determine the validity of an e"ecutive or le-islative action, =5 C@4< 4=oB <=a< =5 =a4 4@4<a625A a A6;53< 62?@;y a4 a ;54@8< o> <=a< a3<6o2, a2A 6< 64 2o< 4@>>63652< <=a< =5 =a4 a 9525;a8 62<5;54< 3oCCo2 <o a88 C5C:5;4 o> <=5 D@:863. This &ourt adopted the KA6;53< 62?@;yK <54< in our ,urisdiction! 'n People *. Aera,>> it held that the person *ho impu-ns the validity of a statute must have 6a D5;4o2a8 a2A 4@:4<a2<6a8 62<5;54< 62 <=5 3a45 4@3= <=a< =5 =a4 4@4<a625A, o; B688 4@4<a62 A6;53< 62?@;y a4 a ;54@8<!6 The Aera doctrine *as upheld in a litany of cases, such as, Custodio *. President of the ,enate ,>< anila ;ace Horse .rainers! )ssociation *. "e la $uente,>?Pascual *. ,ecretary of Public Borks>9 and )nti#Chinese League of the Philippines *. $eli:.>@

4o*ever, bein- a mere procedural technicality, the reAuirement of locus standi may be *aived by the &ourt in the e"ercise of its discretion! This *as done in the 19(9 EC5;9523y PoB5;4 Ca454, )raneta *. "inglasan,>J *here the 6<;a24352A52<a8 6CDo;<a2356 of the cases prompted the &ourt to act liberally! Such liberality *as neither a rarity nor accidental! 'n )-uino *. Comelec,<0 this &ourt resolved to pass upon the issues raised due to the 6>a;&;5a3=629 6CD863a<6o246 of the petition not*ithstandin- its cate-orical statement that petitioner therein had no personality to file the suit! 'ndeed, there is a chain of cases *here this liberal policy has been observed, allo*in- ordinary citi0ens, members of &on-ress, and civic or-ani0ations to prosecute actions involvin- the constitutionality or validity of la*s, re-ulations and rulin-s! <1 Thus, the &ourt has adopted a rule that even *here the petitioners have failed to sho* direct in,ury, they have been allo*ed to sue under the principle of 6<;a24352A52<a8 6CDo;<a235!6 Pertinent are the follo*in- cases5 -1. Cha*eC *. Public Estates )uthority,<2 *here the &ourt ruled that <=5 52>o;35C52< o> <=5 3o24<6<@<6o2a8 ;69=< <o 62>o;Ca<6o2 a2A <=5 5L@6<a:85 A6>>@46o2 o> 2a<@;a8 ;54o@;354 a;5 Ca<<5;4 o> <;a24352A52<a8 6CDo;<a235 B=63= 38o<=5 <=5 D5<6<6o25; B6<= locus standi0 (2. 9agong )lyansang akabayan *. Damora, <3 *herein the &ourt held that K96752 <=5 <;a24352A52<a8 6CDo;<a235 o> <=5 644@54 627o875A, <=5 Co@;< Cay ;58aG <=5 4<a2A629 ;5L@6;5C52<4 a2A a88oB <=5 4@6< <o D;o4D5; A54D6<5 <=5 8a3F o> A6;53< 62?@;y <o <=5 Da;<654 455F629 ?@A636a8 ;5765BK of the 2isitin- Forces )-reement+ -3. Lim *. E:ecuti*e ,ecretary,<> *hile the &ourt noted that the petitioners may not file suit in their capacity as ta"payers absent a sho*in- that 6Dali/atan 02#016 involves the e"ercise of &on-ress3 ta"in- or spendin- po*ers, it reiterated its rulin- in 9agong )lyansang akabayan *. Damora, <<<=a< 62 3a454 o> <;a24352A52<a8 6CDo;<a235, <=5 3a454 C@4< :5 45<<85A D;oCD<8y a2A A5>626<58y a2A 4<a2A629 ;5L@6;5C52<4 Cay :5 ;58aG5A! Dy *ay of summary, the follo*in- rules may be culled from the cases decided by this &ourt! Ta"payers, voters, concerned citi0ens, and le-islators may be accorded standin- to sue, provided that the follo*in- reAuirements are met5 -1. the cases involve constitutional issues+ -2. for <aGDay5;4, there must be a claim of ille-al disbursement of public funds or that the ta" measure is unconstitutional+ -3. for 7o<5;4, there must be a sho*in- of obvious interest in the validity of the election la* in Auestion+ -(. for 3o235;25A 36<6E524, there must be a sho*in- that the issues raised are of transcendental importance *hich must be settled early+ and -*. for 859648a<o;4, there must be a claim that the official action complained of infrin-es upon their prero-atives as le-islators! Si-nificantly, recent decisions sho* a certain tou-henin- in the &ourt3s attitude to*ard le-al standin-! 'n 0ilosbayan, Inc. *. orato,<? the &ourt ruled that the status of 0ilosbayan as a people3s or-ani0ation does not -ive it the reAuisite personality to Auestion the validity of the on#line lottery contract, more so *here it does not raise any issue of constitutionality! oreover, it cannot sue as a ta"payer absent any alle-ation that public funds are bein- misused! Nor can it sue as a concerned citi0en as it does not alle-e any specific in,ury it has suffered! 'n .elecommunications and 9roadcast )ttorneys of the Philippines, Inc. *. Comelec ,<9 the &ourt reiterated the 6direct in,ury6 test

*ith respect to concerned citi0ens3 cases involvin- constitutional issues! 't held that 6there must be a sho*in- that the citi0en personally suffered some actual or threatened in,ury arisin- from the alle-ed ille-al official act!6 'n Lacson *. PereC,<@ the &ourt ruled that one of the petitioners, Laban ng "emokratikong Pilipino 87$P:, is not a real party#in# interest as it had not demonstrated any in,ury to itself or to its leaders, members or supporters! 'n ,anlakas *. E:ecuti*e ,ecretary,<J the &ourt ruled that only the petitioners *ho are members of &on-ress have standin- to sue, as they claim that the President3s declaration of a state of rebellion 64 a @4@;Da<6o2 o> <=5 5C5;9523y DoB5;4 o> Co29;544, <=@4 6CDa6;629 <=56; 859648a<675 DoB5;4! )s to petitioners ,anlakas, Partido anggagawa, and ,ocial @ustice ,ociety, the &ourt declared them to be devoid of standin-, eAuatin- them *ith the 7$P in Lacson! No*, the application of the above principles to the present petitions! The locus standi of petitioners in G.R. No. 171396, particularly $avid and 7lamas, is beyond doubt! The same holds true *ith petitioners in G.R. No. 171(09, &acho#(livares and .ribune Publishin- &o! 'nc! They alle-ed 6direct in,ury6 resultin- from 6ille-al arrest6 and 6unla*ful search6 committed by police operatives pursuant to PP 1019! Ri-htly so, the Solicitor ;eneral does not Auestion their le-al standin-! 'n G.R. No. 171()*, the opposition &on-ressmen alle-ed there *as usurpation of le-islative po*ers! They also raised the issue of *hether or not the concurrence of &on-ress is necessary *henever the alarmin- po*ers incident to artial 7a* are used! oreover, it is in the interest of ,ustice that those affected by PP 1019 can be represented by their &on-ressmen in brin-in- to the attention of the &ourt the alle-ed violations of their basic ri-hts! 'n G.R. No. 171(00, 8)7;':, this &ourt applied the liberality rule in Philconsa *. Enri-ueC,?0 0apatiran 5g ga 5aglilingkod sa Pamahalaan ng Pilipinas, Inc. *. .an,?1 )ssociation of ,mall Landowners in the Philippines, Inc. *. ,ecretary of )grarian ;eform,?2 9asco *. Philippine )musement and 4aming Corporation, ?3 and .aEada *. .u*era,?> that *hen the issue concerns a public ri-ht, it is sufficient that the petitioner is a citi0en and has an interest in the e"ecution of the la*s! 'n G.R. No. 171()3, I E3s assertion that PP 1019 and ;!(! No! < violated its ri-ht to peaceful assembly may be deemed sufficient to -ive it le-al standin-! O;9a26Ea<6o24 Cay :5 9;a2<5A 4<a2A629 <o a445;< <=5 ;69=<4 o> <=56; C5C:5;4 !?< Ce ta/e ,udicial notice of the announcement by the (ffice of the President bannin- all rallies and cancelin- all permits for public assemblies follo*in- the issuance of PP 1019 and ;!(! No! <! 'n G.R. No. 171()9, petitioners, CadiC et al., *ho are national officers of the 'nte-rated Dar of the Philippines 8'DP: have no le-al standin-, havin- failed to alle-e any direct or potential in,ury *hich the 'DP as an institution or its members may suffer as a conseAuence of the issuance of PP No! 1019 and ;!(! No! <! 'n Integrated 9ar of the Philippines *. Damora, ?? the &ourt held that the mere invocation by the 'DP of its duty to preserve the rule of la* and nothin- more, *hile undoubtedly true, is not sufficient to clothe it *ith standin- in this case! This is too -eneral an interest *hich is shared by other -roups and the *hole citi0enry! 4o*ever, in vie* of the transcendental importance of the issue, this &ourt declares that petitioner have locus standi. 'n G.R. No. 171(2(, 7oren 7e-arda has no personality as a ta"payer to file the instant petition as there are no alle-ations of ille-al disbursement of public funds! The fact that she is a former Senator is of no conseAuence! She can no lon-er sue as a le-islator on the alle-ation that her prero-atives as a la*ma/er have been impaired by PP 1019 and ;!(! No! <! 4er claim that she is a media personality *ill not li/e*ise aid her because there *as no sho*in- that the enforcement of these issuances prevented her from pursuin- her occupation! 4er submission that she has pendin- electoral protest before the Presidential %lectoral Tribunal is li/e*ise of no relevance! She has not sufficiently sho*n that PP 1019 *ill affect the proceedin-s or result of her case! Dut considerin- once more the transcendental importance of the issue involved, this &ourt may rela" the standinrules! 't must al*ays be borne in mind that the Auestion of locus standi is but corollary to the bi--er Auestion of proper e"ercise of

,udicial po*er! This is the underlyin- le-al tenet of the 6liberality doctrine6 on le-al standin-! 't cannot be doubted that the validity of PP No! 1019 and ;!(! No! < is a ,udicial Auestion *hich is of paramount importance to the Filipino people! To paraphrase 1ustice 7aurel, the *hole of Philippine society no* *aits *ith bated breath the rulin- of this &ourt on this very critical matter! The petitions thus call for the application of the 6<;a24352A52<a8 6CDo;<a2356 doctrine, a rela"ation of the standin- reAuirements for the petitioners in the 6PP 1019 cases!6
7a**phil.net

This &ourt holds that all the petitioners herein have locus standi! 'ncidentally, it is not proper to implead President )rroyo as respondent! Settled is the doctrine that the President, durin- his tenure of office or actual incumbency,?9 may not be sued in any civil or criminal case, and there is no need to provide for it in the &onstitution or la*! 't *ill de-rade the di-nity of the hi-h office of the President, the 4ead of State, if he can be dra--ed into court liti-ations *hile servin- as such! Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions! Enli/e the le-islative and ,udicial branch, only one constitutes the e"ecutive branch and anythin- *hich impairs his usefulness in the dischar-e of the many -reat and important duties imposed upon him by the &onstitution necessarily impairs the operation of the ;overnment! 4o*ever, this does not mean that the President is not accountable to anyone! 7i/e any other official, he remains accountable to the people?@ but he may be removed from office only in the mode provided by la* and that is by impeachment! ?J %. SU%STANTIVE I. Re iew o! "actual #ases Petitioners maintain that PP 1019 has no factual basis! 4ence, it *as not 6necessary6 for President )rroyo to issue such Proclamation! The issue of *hether the &ourt may revie* the factual bases of the President3s e"ercise of his &ommander#in#&hief po*er has reached its distilled point # from the indul-ent days of 9arcelon *. 9aker90 and ontenegro *. Castaneda91 to the volatile era of Lansang *. 4arcia,92 )-uino, @r. *. Enrile,93 and ;arcia#Padilla v! %nrile!9> The tu-#of#*ar al*ays cuts across the line definin6political Auestions,6 particularly those Auestions 6in re-ard to *hich full discretionary authority has been dele-ated to the le-islative or e"ecutive branch of the -overnment!6 9<9arcelon and ontenegro *ere in unison in declarin- that the a@<=o;6<y <o A536A5 B=5<=5; a2 5G69523y =a4 a;6452 :58o294 <o <=5 P;546A52< and =64 A53646o2 64 >62a8 a2A 3o238@4675 o2 <=5 3o@;<4! Lansang too/ the opposite vie*! There, the members of the &ourt *ere unanimous in the conviction that the &ourt has the authority to inAuire into the e"istence of factual bases in order to determine their constitutional sufficiency! F;oC <=5 D;6236D85 o> 45Da;a<6o2 o> DoB5;4, 6< 4=6><5A <=5 >o3@4 <o <=5 4y4<5C o> 3=53F4 a2A :a8a2354, K@2A5; B=63= <=5 P;546A52< 64 4@D;5C5, G G G o28y i! a2A w$en =5 a3<4 B6<=62 <=5 4D=5;5 a88o<<5A <o =6C :y <=5 %a463 LaB, a2A <=5 a@<=o;6<y <o A5<5;C625 B=5<=5; o; 2o< =5 =a4 4o a3<5A 64 754<5A 62 <=5 $@A636a8 D5Da;<C52<, w$ic$ in t$is respect, 64, 62 <@;2, 3o24<6<@<6o2a88y supreme.69? 'n 1J93, the unanimous &ourt ofLansang *as divided in )-uino *. Enrile.99 There, the &ourt *as almost evenly divided on the issue of *hether the validity of the imposition of artial 7a* is a political or ,usticiable Auestion!9@ Then came 4arcia#Padilla *. Enrile*hich -reatly diluted Lansang! 't declared that there is a need to re#e"amine the latter case, ratiocinatin- that 662 <6C54 o> Ba; o; 2a<6o2a8 5C5;9523y, <=5 P;546A52< C@4< :5 96752 a:4o8@<5 3o2<;o8 >o; <=5 75;y 86>5 o> <=5 2a<6o2 a2A <=5 9o75;2C52< 64 62 9;5a< D5;68. T=5 P;546A52<, 6< 62<o25A, 64 a24B5;a:85 o28y <o =64 3o24365235, <=5 P5oD85, a2A GoA!69J The Integrated 9ar of the Philippines *. Damora @0 ## a recent case most pertinent to these cases at bar && echoed a principle similar to Lansang. Chile the &ourt considered the President3s 6callin-#out6 po*er as a discretionary po*er solely vested in his *isdom, it stressed that 6<=64 Ao54 2o< D;5752< a2 5GaC62a<6o2 o> B=5<=5; 4@3= DoB5; Ba4 5G5;3645A B6<=62 D5;C6446:85 3o24<6<@<6o2a8 86C6<4 o; B=5<=5; 6< Ba4 5G5;3645A 62 a Ca225; 3o24<6<@<629 9;a75 a:@45 o> A643;5<6o2 !6This rulin- is mainly a result of the &ourt3s reliance on Section 1, )rticle 2''' of 1J@9 &onstitution *hich fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments! Ender the ne* definition of ,udicial po*er, the courts are authori0ed not only 6to settle actual controversies involvin- ri-hts *hich are le-ally demandable and enforceable,6 but also 6<o A5<5;C625 B=5<=5; o; 2o< <=5;5 =a4 :552 a 9;a75 a:@45 o> A643;5<6o2 aCo@2<629 <o 8a3F o; 5G3544 o>

?@;64A63<6o2 o2 <=5 Da;< o> a2y :;a23= o; 624<;@C52<a86<y o> <=5 9o75;2C52<!6 The latter part of the authority represents a broadenin- of ,udicial po*er to enable the courts of ,ustice to revie* *hat *as before a forbidden territory, to *it, the discretion of the political departments of the -overnment! @1 't spea/s of ,udicial prero-ative not only in terms of DoB5; but also of A@<y!@2 )s to ho* the &ourt may inAuire into the President3s e"ercise of po*er, Lansang adopted the test that 6,udicial inAuiry can go no further than to satisfy the &ourt not that the President3s decision is correct,6 but that 6the President did not act arbitrarily!6 Thus, the standard laid do*n is not correctness, but arbitrariness! @3 'n Integrated 9ar of the Philippines, this &ourt further ruled that 66< 64 623@C:52< @Do2 <=5 D5<6<6o25; <o 4=oB <=a< <=5 P;546A52<H4 A53646o2 64 <o<a88y :5;5>< o> >a3<@a8 :a464 6 and that if he fails, by *ay of proof, to support his assertion, then 6<=64 Co@;< 3a22o< @2A5;<aF5 a2 62A5D52A52< 62754<69a<6o2 :5yo2A <=5 D85aA6294!6 Petitioners failed to sho* that President )rroyo3s e"ercise of the callin-#out po*er, by issuin- PP 1019, is totally bereft of factual basis! ) readin- of the Solicitor ;eneral3s &onsolidated &omment and emorandum sho*s a detailed narration of the events leadin- to the issuance of PP 1019, *ith supportin- reports formin- part of the records! entioned are the escape of the a-dalo ;roup, their audacious threat of the agdalo "#"ay, the defections in the military, particularly in the Philippine arines, and the reprovin- statements from the communist leaders! There *as also the inutes of the 'ntelli-ence Report and Security ;roup of the Philippine )rmy sho*in- the -ro*in- alliance bet*een the NP) and the military! Petitioners presented nothin- to refute such events! Thus, absent any contrary alle-ations, the &ourt is convinced that the President *as ,ustified in issuin- PP 1019 callin- for military aid! 'ndeed, ,ud-in- the seriousness of the incidents, President )rroyo *as not e"pected to simply fold her arms and do nothin- to prevent or suppress *hat she believed *as la*less violence, invasion or rebellion! 4o*ever, the e"ercise of such po*er or duty must not stifle liberty! II. %onstitutionality o! PP &'&( and ).*. +o. , Do3<;6254 o> S575;a8 Po86<63a8 T=5o;64<4 o2 <=5 PoB5; o> <=5 P;546A52< 62 T6C54 o> EC5;9523y This case brin-s to fore a contentious sub,ect ## the po*er of the President in times of emer-ency . ) -limpse at the various political theories relatin- to this sub,ect provides an adeAuate bac/drop for our ensuin- discussion! 1ohn 7oc/e, describin- the architecture of civil -overnment, called upon the %n-lish doctrine of prero-ative to cope *ith the problem of emer-ency! 'n times of dan-er to the nation, positive la* enacted by the le-islature mi-ht be inadeAuate or even a fatal obstacle to the promptness of action necessary to avert catastrophe! 'n these situations, the &ro*n retained a prero-ative 6DoB5; <o a3< a33o;A629 <o A643;5<6o2 >o; <=5 D@:863 9ooA, B6<=o@< <=5 D;o43;6D<6o2 o> <=5 8aB a2A 4oC5<6C54 5752 a9a624< 6<!6@> Dut 7oc/e reco-ni0ed that this moral restraint mi-ht not suffice to avoid abuse of prero-ative po*ers! /=o 4=a88 ?@A95 <=5 255A >o; ;54o;<629 <o <=5 D;5;o9a<675 a2A =oB Cay 6<4 a:@45 :5 a7o6A5AI 4ere, 7oc/e readily admitted defeat, su--estin- thatK<=5 D5oD85 =a75 2o o<=5; ;5C5Ay 62 <=64, a4 62 a88 o<=5; 3a454 B=5;5 <=5y =a75 2o ?@A95 o2 5a;<=, :@< <o aDD5a8 <o !5a752!6@< 1ean#1acAues Rousseau also assumed the need for temporary suspension of democratic processes of -overnment in time of emer-ency! )ccordin- to him5 The infle"ibility of the la*s, *hich prevents them from adoptin- themselves to circumstances, may, in certain cases, render them disastrous and ma/e them brin- about, at a time of crisis, the ruin of the StateP 't is *ron- therefore to *ish to ma/e political institutions as stron- as to render it impossible to suspend their operation! %ven Sparta allo*ed its la* to lapse!!! 'f the peril is of such a /ind that the paraphernalia of the la*s are an obstacle to their preservation, the method is to nominate a

supreme la*yer, *ho shall silence all the la*s and suspend for a moment the soverei-n authority! 'n such a case, there is no doubt about the -eneral *ill, and it clear that the people3s first intention is that the State shall not perish! @? Rosseau did not fear the abuse of the emer-ency dictatorship or 64@D;5C5 Ca964<;a3y6 as he termed it! For him, it *ould more li/ely be cheapened by 6indiscreet use!6 4e *as un*illin- to rely upon an 6 aDD5a8 <o =5a752!6 'nstead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship! @9 1ohn Stuart ill concluded his ardent defense of representative -overnment5 6 I aC >a; >;oC 3o2A5C2629, 62 3a454 o> 5G<;5C5 2535446<y, <=5 a44@CD<6o2 o> a:4o8@<5 DoB5; 62 <=5 >o;C o> a <5CDo;a;y A63<a<o;4=6D !6@@ Nicollo achiavelli3s vie* of emer-ency po*ers, as one element in the *hole scheme of limited -overnment, furnished an ironic contrast to the 7oc/ean theory of prero-ative! 4e reco-ni0ed and attempted to brid-e this chasm in democratic political theory, thus5 No*, in a *ell#ordered society, it should never be necessary to resort to e"tra .constitutional measures+ for althou-h they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for -ood ob,ects, they *ill in a little *hile be disre-arded under that prete"t but for evil purposes! Thus, no republic *ill ever be perfect if she has not by la* provided for everythin-, havin- a remedy for every emer-ency and fi"ed rules for applyin- it! @J achiavelli . in contrast to 7oc/e, Rosseau and ill . sou-ht to incorporate into the constitution a re-ulari0ed system of standby emer-ency po*ers to be invo/ed *ith suitable chec/s and controls in time of national dan-er! 4e attempted forthri-htly to meet the problem of combinin- a capacious reserve of po*er and speed and vi-or in its application in time of emer-ency, *ith effective constitutional restraints!J0 &ontemporary political theorists, addressin- themselves to the problem of response to emer-ency by constitutional democracies, have employed the doctrine of constitutional dictatorship! J1 Frederic/ ! Cat/ins sa* 62o ;5a4o2 B=y a:4o8@<64C 4=o@8A 2o< :5 @45A a4 a C5a24 >o; <=5 A5>5245 o> 86:5;a8 624<6<@<6o24 ,6 provided it 645;754 <o D;o<53< 54<a:864=5A 624<6<@<6o24 >;oC <=5 Aa295; o> D5;Ca252< 62?@;y 62 a D5;6oA o> <5CDo;a;y 5C5;9523y a2A 64 >o88oB5A :y a D;oCD< ;5<@;2 <o <=5 D;576o@4 >o;C4 o> Do86<63a8 86>5!6J2 4e reco-ni0ed the t*o 82: /ey elements of the problem of emer-ency -overnance, as *ell as all constitutional -overnance5 623;5a4629 aAC6264<;a<675 DoB5;4 o> <=5 5G53@<675, B=685 a< <=5 4aC5 <6C5 K6CDo4629 86C6<a<6o2 @Do2 <=a< DoB5;!6J3 Cat/ins placed his real faith in a scheme of constitutional dictatorship! These are the conditions of success of such a dictatorship5 KT=5 D5;6oA o> A63<a<o;4=6D C@4< :5 ;58a<6758y 4=o;<JD63<a<o;4=6D 4=o@8A a8Bay4 :5 4<;63<8y 8596<6Ca<5 62 3=a;a3<5;JF62a8 a@<=o;6<y <o A5<5;C625 <=5 255A >o; A63<a<o;4=6D 62 a2y 96752 3a45 C@4< 2575; ;54< B6<= <=5 A63<a<o; =6C458>P6J> and the ob,ective of such an emer-ency dictatorship should be 6 4<;63< Do86<63a8 3o245;7a<64C!6 &arl 1! Friedrich cast his analysis in terms similar to those of Cat/ins! J< 6't is a problem of concentratin- po*er . in a -overnment *here po*er has consciously been divided . to cope *ithP situations of unprecedented ma-nitude and -ravity! There must be a broad -rant of po*ers, sub,ect to eAually stron- limitations as to *ho shall e"ercise such po*ers, *hen, for ho* lon-, and to *hat end!6J? Friedrich, too, offered criteria for ,ud-in- the adeAuacy of any of scheme of emer-ency po*ers, to *it5 KT=5 5C5;9523y 5G53@<675 C@4< :5 aDDo62<5A :y 3o24<6<@<6o2a8 C5a24 , 6.5., =5 C@4< :5 8596<6Ca<50 =5 4=o@8A 2o< 52?oy DoB5; <o A5<5;C625 <=5 5G64<5235 o> a2 5C5;9523y0 5C5;9523y DoB5;4 4=o@8A :5 5G5;3645A @2A5; a 4<;63< <6C5 86C6<a<6o20 a2A 8a4<, <=5 o:?53<675 o> 5C5;9523y a3<6o2 C@4< :5 <=5 A5>5245 o> <=5 3o24<6<@<6o2a8 o;A5;!6J9 &linton 7! Rossiter, after surveyin- the history of the employment of emer-ency po*ers in ;reat Dritain, France, Ceimar, ;ermany and the Enited States, reverted to a description of a scheme of 6constitutional dictatorship6 as solution to the ve"inproblems presented by emer-ency!J@ 7i/e Cat/ins and Friedrich, he stated a priori the conditions of success of the 6constitutional dictatorship,6 thus5 1. No -eneral re-ime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even indispensable to the preservation of the State and its constitutional orderP

2. Pthe decision to institute a constitutional dictatorship should never be in the hands of the man or men *ho *ill constitute the dictatorP 3. No -overnment should initiate a constitutional dictatorship *ithout ma/in- specific provisions for its terminationP (. Pall uses of emer-ency po*ers and all read,ustments in the or-ani0ation of the -overnment should be effected in pursuit of constitutional or le-al reAuirementsP *. P no dictatorial institution should be adopted, no ri-ht invaded, no re-ular procedure altered any more than is absolutely necessary for the conAuest of the particular crisis ! ! ! 6. The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent in character or effectP 7. The dictatorship should be carried on by persons representative of every part of the citi0enry interested in the defense of the e"istin- constitutional order! ! ! ). Eltimate responsibility should be maintained for every action ta/en under a constitutional dictatorship! ! ! 9. The decision to terminate a constitutional dictatorship, li/e the decision to institute one should never be in the hands of the man or men *ho constitute the dictator! ! ! 10. No constitutional dictatorship should e"tend beyond the termination of the crisis for *hich it *as institutedP 11. Pthe termination of the crisis must be follo*ed by a complete return as possible to the political and -overnmental conditions e"istin- prior to the initiation of the constitutional dictatorshipP JJ Rossiter accorded to le-islature a far -reater role in the oversi-ht e"ercise of emer-ency po*ers than did Cat/ins! 4e *ould secure to &on-ress final responsibility for declarin- the e"istence or termination of an emer-ency, and he places -reat faith in the effectiveness of con-ressional investi-atin- committees! 100 ,cott and Cotter, in analy0in- the above contemporary theories in li-ht of recent e"perience, *ere one in sayin- that, 6 <=5 4@9954<6o2 <=a< A5Co3;a3654 4@;;52A5; <=5 3o2<;o8 o> 9o75;2C52< <o a2 a@<=o;6<a;6a2 ;@85; 62 <6C5 o> 9;a75 Aa295; <o <=5 2a<6o2 64 not :a45A @Do2 4o@2A 3o24<6<@<6o2a8 <=5o;y!6 To appraise emer-ency po*er in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis! 't matters not *hether the term 6dictator6 is used in its normal sense 8as applied to authoritarian rulers: or is employed to embrace all chief e"ecutives administerin- emer-ency po*ers! 4o*ever used, 6constitutional dictatorship6 cannot be divorced from the implication of suspension of the processes of constitutionalism! Thus, they favored instead the 6concept of constitutionalism6 articulated by &harles 4! c'l*ain5 ) concept of constitutionalism *hich is less misleadin- in the analysis of problems of emer-ency po*ers, and *hich is consistent *ith the findin-s of this study, is that formulated by &harles 4! c'l*ain! Chile it does not by any means necessarily e"clude some indeterminate limitations upon the substantive po*ers of -overnment, full emphasis is placed upon D;o35A@;a8 86C6<a<6o24, and Do86<63a8 ;54Do246:686<y! c'l*ain clearly reco-ni0ed the need to repose adeAuate po*er in -overnment! )nd in discussin- the meanin- of constitutionalism, he insisted that the =64<o;63a8 a2A D;oD5; <54< o> 3o24<6<@<6o2a864C Ba4 <=5 5G64<5235 o> aA5L@a<5 D;o354454 >o; F55D629 9o75;2C52< ;54Do246:85 ! 4e refused to eAuate constitutionalism *ith the enfeeblin- of -overnment by an e"a--erated emphasis upon separation of po*ers and substantive limitations on -overnmental po*er! 4e found that the really effective chec/s on despotism have consisted not in the *ea/enin- of -overnment but, but rather in the 86C6<629 o> 6<+ bet*een *hich there is a -reat and very si-nificant difference! I2 a44o36a<629 3o24<6<@<6o2a864C B6<= K86C6<5AK a4 A64<629@64=5A >;oC KB5aFK 9o75;2C52<, M3I8Ba62 C5a2< 9o75;2C52< 86C6<5A <o <=5 o;A5;8y D;o35A@;5 o> 8aB

a4 oDDo45A <o <=5 D;o354454 o> >o;35. T=5 <Bo >@2AaC52<a8 3o;;58a<675 585C52<4 o> 3o24<6<@<6o2a864C >o; B=63= a88 8o75;4 o> 86:5;<y C@4< y5< >69=< a;5 <=5 859a8 86C6<4 <o a;:6<;a;y DoB5; a2A a 3oCD85<5 Do86<63a8 ;54Do246:686<y o> 9o75;2C52< <o <=5 9o75;25A!101 'n the final analysis, the various approaches to emer-ency of the above political theorists .# from 7oc/3s 6theory of prero-ative,6 to Cat/ins3 doctrine of 6constitutional dictatorship6 and, eventually, to c'l*ain3s 6principle of constitutionalism6 ### ultimately aim to solve one real problem in emer-ency -overnance, i!e!, <=a< o> a88o<<629 623;5a4629 a;5a4 o> A643;5<6o2a;y DoB5; <o <=5 C=65> EG53@<675, B=685 624@;629 <=a< 4@3= DoB5;4 B688 :5 5G5;3645A B6<= a 45245 o> Do86<63a8 ;54Do246:686<y a2A @2A5; 5>>53<675 86C6<a<6o24 a2A 3=53F4. (ur &onstitution has fairly coped *ith this problem! Fresh from the fetters of a repressive re-ime, the 1J@? &onstitutional &ommission, in draftin- the 1J@9 &onstitution, endeavored to create a -overnment in the concept of 1ustice 1ac/son3s 6balanced po*er structure!6102 %"ecutive, le-islative, and ,udicial po*ers are dispersed to the President, the &on-ress, and the Supreme &ourt, respectively! %ach is supreme *ithin its o*n sphere! %@< 2o25 =a4 <=5 Co2oDo8y o> DoB5; 62 <6C54 o> 5C5;9523y. Ea3= :;a23= 64 96752 a ;o85 <o 45;75 a4 86C6<a<6o2 o; 3=53F @Do2 <=5 o<=5;. This system does not B5aF52 the President, it ,ust 86C6<4 his po*er, usin- the lan-ua-e of c'l*ain! 'n other *ords, in times of emer-ency, our &onstitution reasonably demands that *e repose a certain amount of faith in the basic inte-rity and *isdom of the &hief %"ecutive but, at the same time, 6< o:86954 =6C <o oD5;a<5 B6<=62 3a;5>@88y D;543;6:5A D;o35A@;a8 86C6<a<6o24 ! a. KFa36a8 C=a885295K Petitioners contend that PP 1019 is void on its face because of its 6overbreadth!6 They claim that its enforcement encroached on both unprotected and protected ri-hts under Section >, )rticle ''' of the &onstitution and sent a 6chillin- effect6 to the citi0ens! ) facial revie* of PP 1019, usin- the overbreadth doctrine, is uncalled for! $irst and foremost, the overbreadth doctrine is an analytical tool developed for testin- 6on their faces6 statutes in >;55 4D553= 3a454, also /no*n under the )merican 7a* as First )mendment cases!103 ) plain readin- of PP 1019 sho*s that it is not primarily directed to speech or even speech#related conduct! 't is actually a call upon the )FP to prevent or suppress all forms of 8aB8544 76o85235. 'n 1nited ,tates *. ,alerno,10>the ES Supreme &ourt held that 6B5 =a75 2o< ;53o926E5A a2 Mo75;:;5aA<=H Ao3<;625 o@<46A5 <=5 86C6<5A 3o2<5G< o> <=5 F6;4< AC52AC52<K ->;55AoC o> 4D553=.! oreover, the overbreadth doctrine is not intended for testin- the validity of a la* that 6reflects le-itimate state interest in maintainin- comprehensive control over harmful, constitutionally unprotected conduct!6 Endoubtedly, la*less violence, insurrection and rebellion are considered 6harmful6 and 6constitutionally unprotected conduct!6 'n 9roadrick *. Oklahoma,10< it *as held5 't remains a Nmatter of no little difficulty3 to determine *hen a la* may properly be held void on its face and *hen Nsuch summary action3 is inappropriate! %@< <=5 D8a62 6CDo;< o> o@; 3a454 64, a< <=5 75;y 85a4<, <=a< >a36a8 o75;:;5aA<= aA?@A63a<6o2 64 a2 5G35D<6o2 <o o@; <;aA6<6o2a8 ;@854 o> D;a3<635 a2A <=a< 6<4 >@23<6o2, a 86C6<5A o25 a< <=5 o@<45<, a<<52@a<54 a4 <=5 o<=5;B645 @2D;o<53<5A :5=a76o; <=a< 6< >o;:6A4 <=5 S<a<5 <o 4a23<6o2 Co754 >;oC MD@;5 4D553=H <oBa;A 3o2A@3< and <=a< 3o2A@3< ,5752 6> 5GD;544675 , >a884 B6<=62 <=5 43oD5 o> o<=5;B645 7a86A 3;6C62a8 8aB4 <=a< ;5>853< 8596<6Ca<5 4<a<5 62<5;54<4 62 Ca62<a62629 3oCD;5=524675 3o2<;o84 o75; =a;C>@8, 3o24<6<@<6o2a88y @2D;o<53<5A 3o2A@3< ! Thus, claims of facial overbreadth are entertained in cases involvin- statutes *hich, :y <=56; <5;C4, see/ to re-ulate only 64DoF52 Bo;A46 and a-ain, that 6o75;:;5aA<= 38a6C4, 6> 52<5;<a625A a< a88, =a75 :552 3@;<a685A B=52 627oF5A a9a624< o;A62a;y 3;6C62a8 8aB4 <=a< a;5 4o@9=< <o :5 aDD865A <o D;o<53<5A 3o2A@3< !610? 4ere, the incontrovertible fact remains that PP

1019 pertains to a spectrum of 3o2A@3<, not free speech, *hich is manifestly sub,ect to state re-ulation! ,econd, facial invalidation of la*s is considered as 6Ca26>54<8y 4<;o29 C5A63625,6 to be used 64Da;6298y a2A o28y a4 a 8a4< ;54o;<,6 and is 69525;a88y A64>a7o;5A+6109 The reason for this is obvious! %mbedded in the traditional rules -overninconstitutional ad,udication is the principle that a person to *hom a la* may be applied *ill not be heard to challen-e a la* on the -round that it may conceivably be applied unconstitutionally to others, i!e!, 62 o<=5; 46<@a<6o24 2o< :5>o;5 <=5 Co@;<.10@ ) *riter and scholar in &onstitutional 7a* e"plains further5 T=5 Co4< A64<623<675 >5a<@;5 o> <=5 o75;:;5aA<= <53=26L@5 64 <=a< 6< Ca;F4 a2 5G35D<6o2 <o 4oC5 o> <=5 @4@a8 ;@854 o> 3o24<6<@<6o2a8 86<69a<6o2. O;A62a;68y, a Da;<63@8a; 86<69a2< 38a6C4 <=a< a 4<a<@<5 64 @23o24<6<@<6o2a8 a4 aDD865A <o =6C o; =5;0 6> <=5 86<69a2< D;57a684, <=5 3o@;<4 3a;75 aBay <=5 @23o24<6<@<6o2a8 a4D53<4 o> <=5 8aB :y 627a86Aa<629 6<4 6CD;oD5; aDD863a<6o24 o2 a 3a45 <o 3a45 :a464. Mo;5o75;, 3=a885295;4 <o a 8aB a;5 2o< D5;C6<<5A <o ;a645 <=5 ;69=<4 o> <=6;A Da;<654 a2A 3a2 o28y a445;< <=56; oB2 62<5;54<4. I2 o75;:;5aA<= a2a8y464, <=o45 ;@854 9675 Bay0 3=a8852954 a;5 D5;C6<<5A <o ;a645 <=5 ;69=<4 o> <=6;A Da;<654+ and the court invalidates the entire statute 6on its face,6 not merely 6as applied for6 so that the overbroad la* becomes unenforceable until a properly authori0ed court construes it more narro*ly! The factor that motivates courts to depart from the normal ad,udicatory rules is the concern *ith the 6chillin-+6 deterrent effect of the overbroad statute on third parties not coura-eous enou-h to brin- suit! The &ourt assumes that an overbroad la*3s 6very e"istence may cause others not before the court to refrain from constitutionally protected speech or e"pression!6 )n overbreadth rulin- is desi-ned to remove that deterrent effect on the speech of those third parties! 'n other *ords, a facial challen-e usin- the overbreadth doctrine *ill reAuire the &ourt to e"amine PP 1019 and pinpoint its fla*s and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very e"istence may cause o<=5;4 2o< :5>o;5 <=5 Co@;< to refrain from constitutionally protected speech or e"pression! 'n Founger *. Harris,10J it *as held that5 KTLhe tas/ of analy0in- a proposed statute, pinpointin- its deficiencies, and reAuirin- correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate tas/ for the ,udiciary! The combination of the ;58a<675 ;5Co<52544 o> <=5 3o2<;o75;4y, the 6CDa3< o2 <=5 859648a<675 D;o3544 o> <=5 ;5865> 4o@9=<, and above all <=5 4D53@8a<675 a2A aCo;D=o@4 2a<@;5 o> <=5 ;5L@6;5A 8625&:y&8625 a2a8y464 o> A5<a685A 4<a<@<54, !!!ordinarily results in a /ind of case that is B=o88y @24a<64>a3<o;y for decidin- constitutional Auestions, *hichever *ay they mi-ht be decided! )nd third, a facial challen-e on the -round of overbreadth is the most difficult challen-e to mount successfully, since the challen-er must establish that <=5;5 3a2 :5 2o 624<a235 B=52 <=5 a44a685A 8aB Cay :5 7a86A! 4ere, petitioners did not even attempt to sho* *hether this situation e"ists! Petitioners li/e*ise see/ a facial revie* of PP 1019 on the -round of va-ueness! This, too, is un*arranted! Related to the 6overbreadth6 doctrine is the 6void for va-ueness doctrine6 *hich holds that 6 a 8aB 64 >a36a88y 627a86A 6> C52 o> 3oCCo2 62<588695235 C@4< 253544a;68y 9@544 a< 6<4 C5a2629 a2A A6>>5; a4 <o 6<4 aDD863a<6o2. 6110 't is sub,ect to the same principles -overnin- overbreadth doctrine! For one, it is also an analytical tool for testin- 6on their faces6 4<a<@<54 62 >;55 4D553= 3a454! )nd li/e overbreadth, it is said that a liti-ant may challen-e a statute on its face only if it is 7a9@5 62 a88 6<4 Do446:85 aDD863a<6o24. A9a62, D5<6<6o25;4 A6A 2o< 5752 a<<5CD< <o 4=oB <=a< PP 1017 64 7a9@5 62 a88 6<4 aDD863a<6o2. They also failed to establish that men of common intelli-ence cannot understand the meanin- and application of PP 1019! :. Co24<6<@<6o2a8 %a464 o> PP 1017 No* on the constitutional foundation of PP 1019!

The operative portion of PP 1019 may be divided into three important provisions, thus5 "irst pro ision6by virtue of the po*er vested upon me by Section 1@, )rtilce 2'' P do hereby command the )rmed Forces of the Philippines, to maintain la* and order throu-hout the Philippines, prevent or suppress all forms of la*less violence as *ell any act of insurrection or rebellion6 Second pro ision6and to enforce obedience to all the la*s and to all decrees, orders and re-ulations promul-ated by me personally or upon my direction+6 .$ird pro ision6as provided in Section 19, )rticle B'' of the &onstitution do hereby declare a State of National %mer-ency!6 "irst Pro ision- %alling-out Power The first provision pertains to the President3s callin-#out po*er! 'n ,anlakas *. E:ecuti*e ,ecretary,111 this &ourt, throu-h 1ustice $ante (! Tin-a, held that Section 1@, )rticle 2'' of the &onstitution reproduced as follo*s5 r!

S53. 1). The President shall be the &ommander#in#&hief of all armed forces of the Philippines and B=52575; 6< :53oC54 253544a;y, =5 Cay 3a88 o@< 4@3= a;C5A >o;354 <o D;5752< o; 4@DD;544 8aB8544 76o85235, 627a46o2 o; ;5:5886o2 ! 'n case of invasion or rebellion, *hen the public safety reAuires it, he may, for a period not e"ceedin- si"ty days, suspend the privile-e of the *rit of habeas corpus or place the Philippines or any part thereof under martial la*! Cithin forty#ei-ht hours from the proclamation of martial la* or the suspension of the privile-e of the *rit of habeas corpus, the President shall submit a report in person or in *ritin- to the &on-ress! The &on-ress, votin- ,ointly, by a vote of at least a ma,ority of all its embers in re-ular or special session, may revo/e such proclamation or suspension, *hich revocation shall not be set aside by the President! Epon the initiative of the President, the &on-ress may, in the same manner, e"tend such proclamation or suspension for a period to be determined by the &on-ress, if the invasion or rebellion shall persist and public safety reAuires it! The &on-ress, if not in session, shall *ithin t*enty#four hours follo*in- such proclamation or suspension, convene in accordance *ith its rules *ithout need of a call! The Supreme &ourt may revie*, in an appropriate proceedin- filed by any citi0en, the sufficiency of the factual bases of the proclamation of martial la* or the suspension of the privile-e of the *rit or the e"tension thereof, and must promul-ate its decision thereon *ithin thirty days from its filin-! ) state of martial la* does not suspend the operation of the &onstitution, nor supplant the functionin- of the civil courts or le-islative assemblies, nor authori0e the conferment of ,urisdiction on military courts and a-encies over civilians *here civil courts are able to function, nor automatically suspend the privile-e of the *rit! The suspension of the privile-e of the *rit shall apply only to persons ,udicially char-ed for rebellion or offenses inherent in or directly connected *ith invasion! $urin- the suspension of the privile-e of the *rit, any person thus arrested or detained shall be ,udicially char-ed *ithin three days, other*ise he shall be released! -rants the President, as &ommander#in#&hief, a 6seAuence6 of -raduated po*ers! From the most to the least beni-n, these are5

the callin-#out po*er, the po*er to suspend the privile-e of the *rit of habeas corpus, and the po*er to declare artial 7a*! &itin- Integrated 9ar of the Philippines *. Damora,112 the &ourt ruled that the only criterion for the e"ercise of the callin-#out po*er is that 6B=52575; 6< :53oC54 253544a;y,6 the President may call the armed forces 6<o D;5752< o; 4@DD;544 8aB8544 76o85235, 627a46o2 o; ;5:5886o2!6 )re these conditions present in the instant cases= )s stated earlier, considerin- the circumstances then prevailin-, President )rroyo found it necessary to issue PP 1019! (*in- to her (ffice3s vast intelli-ence net*or/, she is in the best position to determine the actual condition of the country! Ender the callin-#out po*er, the President may summon the armed forces to aid him in suppressin- 8aB8544 76o85235, 627a46o2 a2A ;5:5886o2! This involves ordinary police action! Dut every act that -oes beyond the President3s callin-#out po*er is considered ille-al or ultra *ires! For this reason, a President must be careful in the e"ercise of his po*ers! 4e cannot invo/e a -reater po*er *hen he *ishes to act under a lesser po*er! There lies the *isdom of our &onstitution, the -reater the po*er, the -reater are the limitations! 't is pertinent to state, ho*ever, that there is a distinction bet*een the President3s authority to declare a 6state of rebellion6 8in ,anlakas: and the authority to proclaim a state of national emer-ency! Chile President )rroyo3s authority to declare a 6state of rebellion6 emanates from her po*ers as &hief %"ecutive, the statutory authority cited in ,anlakas *as Section >, &hapter 2, Doo/ '' of the Revised )dministrative &ode of 1J@9, *hich provides5 S%&! >! . Proclamations! . )cts of the President fi"in- a date or declarin- a status or condition of public moment or interest, upon the e"istence of *hich the operation of a specific la* or re-ulation is made to depend, shall be promul-ated in proclamations *hich shall have the force of an e"ecutive order! President )rroyo3s declaration of a 6state of rebellion6 *as merely an act declarin- a status or condition of public moment or interest, a declaration allo*ed under Section > cited above! Such declaration, in the *ords of ,anlakas, is harmless, *ithout le-al si-nificance, and deemed not *ritten! 'n these cases, PP 1019 is more than that! 'n declarin- a state of national emer-ency, President )rroyo did not only rely on Section 1@, )rticle 2'' of the &onstitution, a provision callin- on the )FP to prevent or suppress la*less violence, invasion or rebellion! She also relied on Section 19, )rticle B'', a provision on the State3s e"traordinary po*er to ta/e over privately#o*ned public utility and business affected *ith public interest! 'ndeed, PP 1019 calls for the e"ercise of an aB54oC5 DoB5;! (bviously, such Proclamation cannot be deemed harmless, *ithout le-al si-nificance, or not *ritten, as in the case of ,anlakas! Some of the petitioners vehemently maintain that PP 1019 is actually a declaration of artial 7a*! 't is no so! Chat defines the character of PP 1019 are its *ordin-s! 't is plain therein that *hat the President invo/ed *as her callin-#out po*er! The declaration of artial 7a* is a 6*arnKin-L to citi0ens that the military po*er has been called upon by the e"ecutive to assist in the maintenance of la* and order, and that, *hile the emer-ency lasts, they must, upon pain of arrest and punishment, not commit any acts *hich *ill in any *ay render more difficult the restoration of order and the enforcement of la*!6 113 'n his 6,tatement before the ,enate Committee on @ustice6 on arch 13, 200?, r! 1ustice 2icente 2! endo0a,11>an authority in constitutional la*, said that of the three po*ers of the President as &ommander#in#&hief, the po*er to declare artial 7a* poses the most severe threat to civil liberties! 't is a stron- medicine *hich should not be resorted to li-htly! 't cannot be used to stifle or persecute critics of the -overnment! 't is placed in the /eepin- of the President for the purpose of enablin- him to secure the people from harm and to restore order so that they can en,oy their individual freedoms! 'n fact, Section 1@, )rt! 2'', provides5 ) state of martial la* does not suspend the operation of the &onstitution, nor supplant the functionin- of the civil courts or le-islative assemblies, nor authori0e the conferment of ,urisdiction on military courts and a-encies over civilians *here civil courts are able to function, nor automatically suspend the privile-e of the *rit! 1ustice endo0a also stated that PP 1019 is not a declaration of artial 7a*! 't is no more than a call by the President to the armed forces to prevent or suppress la*less violence! )s such, it cannot be used to ,ustify acts that only under a valid

declaration of artial 7a* can be done! 'ts use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra *ires! 1ustice endo0a further stated that specifically, 8a: arrests and sei0ures *ithout ,udicial *arrants+ 8b: ban on public assemblies+ 8c: ta/e#over of ne*s media and a-encies and press censorship+ and 8d: issuance of Presidential $ecrees, are po*ers *hich can be e"ercised by the President as &ommander#in#&hief o28y *here there is a valid declaration of artial 7a* or suspension of the *rit of habeas corpus! Dased on the above disAuisition, it is clear that PP 1019 is not a declaration of artial 7a*! I< 64 C5;58y a2 5G5;3645 o> P;546A52< A;;oyoH4 3a88629&o@< DoB5; for the armed forces to assist her in preventin- or suppressin- la*less violence! Second Pro ision- /.a0e %are/ Power The second provision pertains to the po*er of the President to ensure that the la*s be faithfully e"ecuted! This is based on Section 19, )rticle 2'' *hich reads5 SEC. 17! The President shall have control of all the e"ecutive departments, bureaus, and offices! !5 4=a88 524@;5 <=a< <=5 8aB4 :5 >a6<=>@88y 5G53@<5A! )s the %"ecutive in *hom the e"ecutive po*er is vested, 11< the primary function of the President is to enforce the la*s as *ell as to formulate policies to be embodied in e"istin- la*s! 4e sees to it that all la*s are enforced by the officials and employees of his department! Defore assumin- office, he is reAuired to ta/e an oath or affirmation to the effect that as President of the Philippines, he *ill, amon- others, 6e"ecute its la*s!611? 'n the e"ercise of such function, the President, if needed, may employ the po*ers attached to his office as the &ommander#in#&hief of all the armed forces of the country, 119 includin- the Philippine National Police11@ under the $epartment of 'nterior and 7ocal ;overnment! 11J Petitioners, especially Representatives Francis 1oseph ;! %scudero, Satur (campo, Rafael ariano, Teodoro &asiMo, 7i0a a0a, and 1osel 2irador ar-ue that PP 1019 is unconstitutional as it arro-ated upon President )rroyo the po*er to enact la*s and decrees in violation of Section 1, )rticle 2' of the &onstitution, *hich vests the po*er to enact la*s in &on-ress! They assail the clause 6<o 52>o;35 o:5A65235 <o a88 <=5 8aB4 a2A <o a88 A53;554, o;A5;4 a2A ;59@8a<6o24 D;oC@89a<5A :y C5 D5;4o2a88y o; @Do2 Cy A6;53<6o2!6 Q Petitioners3 contention is understandable! ) readin- of PP 1019 operative clause sho*s that it *as lifted 120 from Former President arcos3 Proclamation No! 10@1, *hich partly reads5 NO/, T!EREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the po*ers vested upon me by )rticle 2'', Section 10, Para-raph 82: of the &onstitution, do hereby place the entire Philippines as defined in )rticle 1, Section 1 of the &onstitution under martial la* and, in my capacity as their &ommander#in#&hief, Ao =5;5:y 3oCCa2A <=5 A;C5A Fo;354 o> <=5 P=686DD6254, <o Ca62<a62 8aB a2A o;A5; <=;o@9=o@< <=5 P=686DD6254, D;5752< o; 4@DD;544 a88 >o;C4 o> 8aB8544 76o85235 a4 B588 a4 a2y a3< o> 624@;;53<6o2 o; ;5:5886o2 a2A <o 52>o;35 o:5A65235 <o a88 <=5 8aB4 a2A A53;554, o;A5;4 a2A ;59@8a<6o24 D;oC@89a<5A :y C5 D5;4o2a88y o; @Do2 Cy A6;53<6o2. Ce all /no* that it *as PP 10@1 *hich -ranted President arcos le-islative po*er! 'ts enablin- clause states5 K<o 52>o;35 o:5A65235 <o a88 <=5 8aB4 a2A A53;554, o;A5;4 a2A ;59@8a<6o24 D;oC@89a<5A :y C5 D5;4o2a88y o; @Do2 Cy A6;53<6o2.K Epon the other hand, the enablin- clause of PP 1019 issued by President )rroyo is5 <o 52>o;35 o:5A65235 <o a88 <=5 8aB4 a2A to all A53;554, o;A5;4 a2A ;59@8a<6o24 D;oC@89a<5A :y C5 D5;4o2a88y o; @Do2 Cy A6;53<6o2 !6

Is it within the domain of President )rroyo to promulgate +decrees+G PP 1019 states in part5 6to enforce obedience to all the la*s and A53;554 " " " D;oC@89a<5A :y C5 D5;4o2a88y o; @Do2 Cy A6;53<6o2.6 The President is -ranted an (rdinance Po*er under &hapter 2, Doo/ ''' of %"ecutive (rder No! 2J2 8)dministrative &ode of 1J@9:! She may issue any of the follo*in-5 Sec! 2! E:ecuti*e Orders! R )cts of the President providin- for rules of a -eneral or permanent character in implementation or e"ecution of constitutional or statutory po*ers shall be promul-ated in e"ecutive orders! Sec! 3! )dministrati*e Orders! R )cts of the President *hich relate to particular aspect of -overnmental operations in pursuance of his duties as administrative head shall be promul-ated in administrative orders! Sec! >! Proclamations! R )cts of the President fi"in- a date or declarin- a status or condition of public moment or interest, upon the e"istence of *hich the operation of a specific la* or re-ulation is made to depend, shall be promul-ated in proclamations *hich shall have the force of an e"ecutive order! Sec! <! emorandum Orders! R )cts of the President on matters of administrative detail or of subordinate or temporary interest *hich only concern a particular officer or office of the ;overnment shall be embodied in memorandum orders! Sec! ?! emorandum Circulars! R )cts of the President on matters relatin- to internal administration, *hich the President desires to brin- to the attention of all or some of the departments, a-encies, bureaus or offices of the ;overnment, for information or compliance, shall be embodied in memorandum circulars! Sec! 9! 4eneral or ,pecial Orders! R )cts and commands of the President in his capacity as &ommander#in#&hief of the )rmed Forces of the Philippines shall be issued as -eneral or special orders! President )rroyo3s ordinance po*er is limited to the fore-oin- issuances! She cannot issue A53;554 similar to those issued by Former President arcos under PP 10@1! Presidential $ecrees are la*s *hich are of the same cate-ory and bindin- force as statutes because they *ere issued by the President in the e"ercise of his le-islative po*er durin- the period of artial 7a* under the 1J93 &onstitution!121 T=64 Co@;< ;@854 <=a< <=5 a44a685A PP 1017 64 @23o24<6<@<6o2a8 624o>a; a4 6< 9;a2<4 P;546A52< A;;oyo <=5 a@<=o;6<y <o D;oC@89a<5 KA53;554.K 7e-islative po*er is peculiarly *ithin the province of the 7e-islature! Section 1, )rticle 2' cate-orically states that 6N<O=5 859648a<675 DoB5; 4=a88 :5 754<5A 62 <=5 Co29;544 o> <=5 P=686DD6254 B=63= 4=a88 3o2464< o> a S52a<5 a2A a !o@45 o> R5D;5452<a<6754!6 To be sure, neither artial 7a* nor a state of rebellion nor a state of emer-ency can ,ustify President )rroyo3s e"ercise of le-islative po*er by issuin- decrees! Can President )rroyo enforce obedience to all decrees and laws through the military = )s this &ourt stated earlier, President )rroyo has no authority to enact decrees! 't follo*s that these decrees are void and, therefore, cannot be enforced! Cith respect to 6la*s,6 she cannot call the military to enforce or implement certain la*s, such as customs la*s, la*s -overnin- family and property relations, la*s on obli-ations and contracts and the li/e! She can only order the military, under PP 1019, to enforce la*s pertinent to its duty <o 4@DD;544 8aB8544 76o85235! .$ird Pro ision- Power to .a0e * er

The pertinent provision of PP 1019 states5 " " " and to enforce obedience to all the la*s and to all decrees, orders, and re-ulations promul-ated by me personally or upon my direction+ a2A a4 D;o76A5A 62 S53<6o2 17, A;<6385 'II o> <=5 Co24<6<@<6o2 Ao =5;5:y A538a;5 a 4<a<5 o> 2a<6o2a8 5C5;9523y. The import of this provision is that President )rroyo, durin- the state of national emer-ency under PP 1019, can call the military not only to enforce obedience 6to all the la*s and to all decrees " " "6 but also to act pursuant to the provision of Section 19, )rticle B'' *hich reads5 S53. 17. 'n times of national emer-ency, *hen the public interest so reAuires, the State may, durin- the emer-ency and under reasonable terms prescribed by it, temporarily ta/e over or direct the operation of any privately#o*ned public utility or business affected *ith public interest! Bhat could be the reason of President )rroyo in in*oking the abo*e pro*ision when she issued PP 7'78G The ans*er is simple! $urin- the e"istence of the state of national emer-ency, PP 1019 purports to -rant the President, *ithout any authority or dele-ation from &on-ress, to ta/e over or direct the operation of any privately#o*ned public utility or business affected *ith public interest! This provision *as first introduced in the 1J93 &onstitution, as a product of the 6martial la*6 thin/in- of the 1J91 &onstitutional &onvention!122 'n effect at the time of its approval *as President arcos3 7etter of 'nstruction No! 2 dated September 22, 1J92 instructin- the Secretary of National $efense to ta/e over 6 the management, control and operation of the anila Electric Company, the Philippine Long "istance .elephone Company, the 5ational Baterworks and ,ewerage )uthority, the Philippine 5ational ;ailways, the Philippine )ir Lines, )ir anila HandI $ilipinas Orient )irways . . . for the successful prosecution by the 4o*ernment of its effort to contain, sol*e and end the present national emergency. 6 Petitioners, particularly the members of the 4ouse of Representatives, claim that President )rroyo3s inclusion of Section 19, )rticle B'' in PP 1019 is an encroachment on the le-islature3s emer-ency po*ers! This is an area that needs delineation! ) distinction must be dra*n bet*een the President3s authority to A538a;5 6a state of national emer-ency6 and to5G5;3645 emer-ency po*ers! To the first, as elucidated by the &ourt, Section 1@, )rticle 2'' -rants the President such po*er, hence, no le-itimate constitutional ob,ection can be raised! Dut to the second, manifold constitutional issues arise! Section 23, )rticle 2' of the &onstitution reads5 SEC. 23. -1. The &on-ress, by a vote of t*o#thirds of both 4ouses in ,oint session assembled, votin- separately, shall have the 4o85 DoB5; <o A538a;5 <=5 5G64<5235 o> a 4<a<5 o> Ba;! -2. 'n times of *ar or o<=5; 2a<6o2a8 5C5;9523y, the &on-ress may, by la*, authori0e the President, for a limited period and sub,ect to such restrictions as it may prescribe, to e"ercise po*ers necessary and proper to carry out a declared national policy! Enless sooner *ithdra*n by resolution of the &on-ress, such po*ers shall cease upon the ne"t ad,ournment thereof! 't may be pointed out that the second para-raph of the above provision refers not only to *ar but also to 6 o<=5; 2a<6o2a8 5C5;9523y!6 'f the intention of the Framers of our &onstitution *as to *ithhold from the President the authority to declare a 6state of national emer-ency6 pursuant to Section 1@, )rticle 2'' 8callin-#out po*er: and -rant it to &on-ress 8li/e the declaration of the e"istence of a state of *ar:, then the Framers could have provided so! &learly, they did not intend that &on-ress should first authori0e the President before he can declare a 6state of national emer-ency!6 The lo-ical conclusion then is that President

)rroyo could validly declare the e"istence of a state of national emer-ency even in the absence of a &on-ressional enactment! Dut the 5G5;3645 of emer-ency po*ers, such as the ta/in- over of privately o*ned public utility or business affected *ith public interest, is a different matter! This reAuires a dele-ation from &on-ress! &ourts have often said that constitutional provisions in pari materia are to be construed to-ether! (ther*ise stated, different clauses, sections, and provisions of a constitution *hich relate to the same sub,ect matter *ill be construed to-ether and considered in the li-ht of each other!123 &onsiderin- that Section 19 of )rticle B'' and Section 23 of )rticle 2', previously Auoted, relate to national emer-encies, they must be read to-ether to determine the limitation of the e"ercise of emer-ency po*ers! G525;a88y, Co29;544 64 <=5 ;5Do46<o;y o> 5C5;9523y DoB5;4! This is evident in the tenor of Section 23 82:, )rticle 2' authori0in- it to dele-ate such po*ers to the President! C5;<a628y, a :oAy 3a22o< A5859a<5 a DoB5; 2o< ;5Do45A @Do2 6<. 4o*ever, /no*in- that durin- -rave emer-encies, it may not be possible or practicable for &on-ress to meet and e"ercise its po*ers, the Framers of our &onstitution deemed it *ise to allo* &on-ress to -rant emer-ency po*ers to the President, sub,ect to certain conditions, thus5 -1. There must be a Ba; or o<=5; 5C5;9523y! -2. The dele-ation must be for a 86C6<5A D5;6oA o28y! -3. The dele-ation must be 4@:?53< <o 4@3= ;54<;63<6o24 a4 <=5 Co29;544 Cay D;543;6:5 ! -(. The emer-ency po*ers must be e"ercised to 3a;;y o@< a 2a<6o2a8 Do863y declared by &on-ress!12> Section 19, )rticle B'' must be understood as an aspect of the emer-ency po*ers clause! The ta/in- over of private business affected *ith public interest is ,ust another facet of the emer-ency po*ers -enerally reposed upon &on-ress! Thus, *hen Section 19 states that the 6<=5 S<a<5 Cay, A@;629 <=5 5C5;9523y a2A @2A5; ;5a4o2a:85 <5;C4 D;543;6:5A :y 6<, <5CDo;a;68y <aF5 o75; o; A6;53< <=5 oD5;a<6o2 o> a2y D;67a<58y oB25A D@:863 @<686<y o; :@462544 a>>53<5A B6<= D@:863 62<5;54< ,6 it refers to &on-ress, not the President! No*, *hether or not the President may e"ercise such po*er is dependent on *hether &on-ress may dele-ate it to him pursuant to a la* prescribin- the reasonable terms thereof! Foungstown ,heet J .ube Co. et al. *. ,awyer,12<held5 't is clear that if the President had authority to issue the order he did, it must be found in some provision of the &onstitution! )nd it is not claimed that e"press constitutional lan-ua-e -rants this po*er to the President! The contention is that presidential po*er should be implied from the a--re-ate of his po*ers under the &onstitution! Particular reliance is placed on provisions in )rticle '' *hich say that 6The e"ecutive Po*er shall be vested in a President ! ! ! !+6 that 6he shall ta/e &are that the 7a*s be faithfully e"ecuted+6 and that he 6shall be &ommander#in#&hief of the )rmy and Navy of the Enited States! The order cannot properly be sustained as an e"ercise of the President3s military po*er as &ommander#in#&hief of the )rmed Forces! The ;overnment attempts to do so by citin- a number of cases upholdin- broad po*ers in military commanders en-a-ed in day#to#day fi-htin- in a theater of *ar! Such cases need not concern us here! E752 <=o@9= K<=5a<5; o> Ba;K :5 a2 5GDa2A629 3o235D<, B5 3a22o< B6<= >a6<=>@82544 <o o@; 3o24<6<@<6o2a8 4y4<5C =o8A <=a< <=5 CoCCa2A5;&62&C=65> o> <=5 A;C5A Fo;354 =a4 <=5 @8<6Ca<5 DoB5; a4 4@3= <o <aF5 Do445446o2 o> D;67a<5 D;oD5;<y 62 o;A5; <o F55D 8a:o; A64D@<54 >;oC 4<oDD629 D;oA@3<6o2. T=64 64 a ?o: >o; <=5 2a<6o2H4 8aBCaF5;4, 2o< >o; 6<4 C686<a;y a@<=o;6<654. No; 3a2 <=5 456E@;5 o;A5; :5 4@4<a625A :53a@45 o> <=5 4575;a8 3o24<6<@<6o2a8 D;o7646o24 <=a< 9;a2< 5G53@<675 DoB5; <o <=5 P;546A52<. I2 <=5 >;aC5Bo;F o> o@; Co24<6<@<6o2, <=5 P;546A52<H4 DoB5; <o 455 <=a< <=5 8aB4 a;5 >a6<=>@88y 5G53@<5A ;5>@<54 <=5 6A5a <=a< =5 64 <o :5 a 8aBCaF5;. T=5 Co24<6<@<6o2 86C6<4 =64 >@23<6o24 62 <=5 8aBCaF629 D;o3544 <o <=5 ;53oCC52A629 o> 8aB4 =5 <=62F4 B645 a2A <=5 75<o629 o> 8aB4 =5 <=62F4 :aA. A2A <=5 Co24<6<@<6o2 64 256<=5; 46852< 2o; 5L@67o3a8 a:o@< B=o 4=a88 CaF5 8aB4 B=63= <=5 P;546A52< 64 <o 5G53@<5. T=5 >6;4< 453<6o2 o> <=5 >6;4< a;<6385 4ay4 <=a< KA88

859648a<675 PoB5;4 =5;562 9;a2<5A 4=a88 :5 754<5A 62 a Co29;544 o> <=5 U26<5A S<a<54 ! ! !612? Petitioner Cacho#Oli*ares, et al. contends that the term 6emer-ency6 under Section 19, )rticle B'' refers to 6 <4@2aC6,6 6<yD=oo2,6 6=@;;63a256and646C68a; o33@;;52354!6 This is a limited vie* of 6emer-ency!6 %mer-ency, as a -eneric term, connotes the e"istence of conditions suddenly intensifyin- the de-ree of e"istin- dan-er to life or *ell#bein- beyond that *hich is accepted as normal! 'mplicit in this definitions are the elements of intensity, variety, and perception!129 %mer-encies, as perceived by le-islature or e"ecutive in the Enited Sates since 1J33, have been occasioned by a *ide ran-e of situations, classifiable under three 83: principal heads5 a.53o2oC63,12@ :. 2a<@;a8 A64a4<5;,12J and 3. 2a<6o2a8 453@;6<y!130 6%mer-ency,6 as contemplated in our &onstitution, is of the same breadth! 't may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nation*ide proportions or effect! 131This is evident in the Records of the &onstitutional &ommission, thus5 R! ;)S&(N! Oes! Chat is the &ommittee3s definition of 6national emer-ency6 *hich appears in Section 13, pa-e <= 't reads5 Chen the common -ood so reAuires, the State may temporarily ta/e over or direct the operation of any privately o*ned public utility or business affected *ith public interest! R! 2'77%;)S! Chat ' mean is threat from 5G<5;2a8 a99;5446o2, for e"ample, 3a8aC6<654 or 2a<@;a8 A64a4<5;4! R! ;)S&(N! There is a Auestion by &ommissioner de los Reyes! Chat about stri/es and riots= R! 2'77%;)S! Stri/es, no+ those *ould not be covered by the term 6national emer-ency!6 R! D%N;F(N! Enless they are of such proportions such that they *ould paraly0e -overnment service! 132 """""" R! T'N;S(N! ay ' as/ the committee if 6national emer-ency6 refers to C686<a;y 2a<6o2a8 5C5;9523y or could this be 53o2oC63 5C5;9523y=6 R! 2'77%;)S! Oes, it could refer to :o<= C686<a;y o; 53o2oC63 A648o3a<6o24. R! T'N;S(N! Than/ you very much!133 't may be ar-ued that *hen there is national emer-ency, &on-ress may not be able to convene and, therefore, unable to dele-ate to the President the po*er to ta/e over privately#o*ned public utility or business affected *ith public interest! 'n )raneta *. "inglasan,13> this &ourt emphasi0ed that le-islative po*er, throu-h *hich e"traordinary measures are e"ercised, remains in &on-ress even in times of crisis! 6" " " )fter all the criticisms that have been made a-ainst the efficiency of the system of the separation of po*ers, the fact remains that the &onstitution has set up this form of -overnment, *ith all its defects and shortcomin-s, in preference to the commin-lin- of po*ers in one man or -roup of men! The Filipino people by adoptin- parliamentary -overnment have -iven notice that they share the faith of other democracy#lovin- peoples in this system, *ith all its faults, as the ideal! The point is, under this frame*or/ of

-overnment, le-islation is preserved for &on-ress all the time, not e"ceptin- periods of crisis no matter ho* serious! Never in the history of the Enited States, the basic features of *hose &onstitution have been copied in ours, have specific functions of the le-islative branch of enactin- la*s been surrendered to another department . unless *e re-ard as le-islatin- the carryin- out of a le-islative policy accordin- to prescribed standards+ no, not even *hen that Republic *as fi-htin- a total *ar, or *hen it *as en-a-ed in a life#and#death stru--le to preserve the Enion! The truth is that under our concept of constitutional -overnment, in times of e"treme perils more than in normal circumstances Nthe various branches, e"ecutive, le-islative, and ,udicial,3 -iven the ability to act, are called upon Nto perform the duties and dischar-e the responsibilities committed to them respectively!6 Follo*in- our interpretation of Section 19, )rticle B'', invo/ed by President )rroyo in issuin- PP 1019, this &ourt rules that such Proclamation does not authori0e her durin- the emer-ency to temporarily ta/e over or direct the operation of any privately o*ned public utility or business affected *ith public interest *ithout authority from &on-ress! 7et it be emphasi0ed that *hile the President alone can declare a state of national emer-ency, ho*ever, *ithout le-islation, he has no po*er to ta/e over privately#o*ned public utility or business affected *ith public interest! The President cannot decide *hether e"ceptional circumstances e"ist *arrantin- the ta/e over of privately#o*ned public utility or business affected *ith public interest! Nor can he determine *hen such e"ceptional circumstances have ceased! 7i/e*ise, B6<=o@< 859648a<6o2, the President has no po*er to point out the types of businesses affected *ith public interest that should be ta/en over! 'n short, the President has no absolute authority to e"ercise all the po*ers of the State under Section 19, )rticle 2'' in the absence of an emer-ency po*ers act passed by &on-ress! 3. KAS APPLIED C!ALLENGEK (ne of the misfortunes of an emer-ency, particularly, that *hich pertains to security, is that military necessity and the -uaranteed ri-hts of the individual are often not compatible! (ur history reveals that in the crucible of conflict, many ri-hts are curtailed and trampled upon! 4ere, the ;69=< a9a624< @2;5a4o2a:85 45a;3= a2A 456E@;50 <=5 ;69=< a9a624< Ba;;a2<8544 a;;54<0 and <=5 >;55AoC o> 4D553=, o> 5GD;5446o2, o> <=5 D;544, a2A o> a445C:8y under the Dill of Ri-hts suffered the -reatest blo*! (f the seven 89: petitions, three 83: indicate 6direct in,ury!6 'n G.R. No. 171396, petitioners $avid and 7lamas alle-ed that, on February 2>, 200?, they *ere arrested *ithout *arrants on their *ay to %$S) to celebrate the 20th )nniversary of People Power I. The arrestin- officers cited PP 1019 as basis of the arrest! 'n G.R. No. 171(09, petitioners &acho#(livares and .ribune Publishin- &o!, 'nc! claimed that on February 2<, 200?, the &'$; operatives 6raided and ransac/ed *ithout *arrant6 their office! Three policemen *ere assi-ned to -uard their office as a possible 6source of destabili0ation!6 )-ain, the basis *as PP 1019! )nd in G.R. No. 171()3, petitioners I E and N)F7E#I E et al. alle-ed that their members *ere 6turned a*ay and dispersed6 *hen they *ent to %$S) and later, to )yala )venue, to celebrate the 20th )nniversary of People Power I! ) perusal of the 6direct in,uries6 alle-edly suffered by the said petitioners sho*s that they resulted from the 6CD85C52<a<6o2, pursuant to ;!(! No! <, of PP 1019! Can this Court ad?udge as unconstitutional PP 7'78 and 4.O. 5o 6 on the basis of these illegal actsG 'n -eneral,does the illegal implementation of a law render it unconstitutionalG Settled is the rule that courts are not at liberty to declare statutes invalid a8<=o@9= <=5y Cay :5 a:@45A a2A C64a:@45A13< and Cay a>>o;A a2 oDDo;<@26<y >o; a:@45 62 <=5 Ca225; o> aDD863a<6o2!13? The validity of a statute or ordinance is to be determined from its -eneral purpose and its efficiency to accomplish the end desired, 2o< >;oC 6<4 5>>53<4 62 a Da;<63@8a; 3a45!139 PP 1019 is merely an invocation of the President3s callin-#out po*er! 'ts -eneral purpose is to command the )FP to

suppress all forms of la*less violence, invasion or rebellion! 't had accomplished the end desired *hich prompted President )rroyo to issue PP 1021! Dut there is nothin- in PP 1019 allo*in- the police, e"pressly or impliedly, to conduct ille-al arrest, search or violate the citi0ens3 constitutional ri-hts! No*, may this &ourt ad,ud-e a la* or ordinance unconstitutional on the -round that its implementor committed ille-al acts= The ans*er is no! The criterion by *hich the validity of the statute or ordinance is to be measured is the essential basis for the e"ercise of po*er, a2A 2o< a C5;5 6236A52<a8 ;54@8< a;64629 >;oC 6<4 5G5;<6o2 !13@This is lo-ical! 1ust ima-ine the absurdity of situations *hen la*s maybe declared unconstitutional ,ust because the officers implementin- them have acted arbitrarily! 'f this *ere so, ,ud-in- from the blunders committed by policemen in the cases passed upon by the &ourt, ma,ority of the provisions of the Revised Penal &ode *ould have been declared unconstitutional a lon- time a-o! President )rroyo issued ;!(! No! < to carry into effect the provisions of PP 1019! ;eneral orders are 6acts and commands of the President in his capacity as &ommander#in#&hief of the )rmed Forces of the Philippines!6 They are internal rules issued by the e"ecutive officer to his subordinates precisely for the D;oD5; and 5>>63652<aAC6264<;a<6o2 o> 8aB. Such rules and re-ulations create no relation e"cept bet*een the official *ho issues them and the official *ho receives them! 13J They are based on and are the product of, a relationship in *hich po*er is their source, and obedience, their ob,ect! 1>0 For these reasons, one reAuirement for these rules to be valid is that they must be ;5a4o2a:85, 2o< a;:6<;a;y o; 3aD;636o@4. ;!(! No! < mandates the )FP and the PNP to immediately carry out the 6253544a;y a2A aDD;oD;6a<5 a3<6o24 a2A C5a4@;54 <o 4@DD;544 a2A D;5752< a3<4 o> <5;;o;64C a2A 8aB8544 violence!6 Enli/e the term 6la*less violence6 *hich is unar-uably e"tant in our statutes and the &onstitution, and *hich is invariably associated *ith 6invasion, insurrection or rebellion,6 the phrase 6acts of terrorism6 is still an amorphous and va-ue concept! &on-ress has yet to enact a la* definin- and punishin- acts of terrorism! 'n fact, this 6definitional predicament6 or the 6absence of an a-reed definition of terrorism6 confronts not only our country, but the international community as *ell! The follo*in- observations are Auite apropos5 'n the actual unipolar conte"t of international relations, the 6fi-ht a-ainst terrorism6 has become one of the basic slo-ans *hen it comes to the ,ustification of the use of force a-ainst certain states and a-ainst -roups operatin- internationally! 7ists of states 6sponsorin- terrorism6 and of terrorist or-ani0ations are set up and constantly bein- updated accordin- to criteria that are not al*ays /no*n to the public, but are clearly determined by strate-ic interests! The basic problem underlyin- all these military actions . or threats of the use of force as the most recent by the Enited States a-ainst 'raA . consists in the absence of an a-reed definition of terrorism! Remar/able confusion persists in re-ard to the le-al cate-ori0ation of acts of violence either by states, by armed -roups such as liberation movements, or by individuals! The dilemma can by summari0ed in the sayin- 6(ne country3s terrorist is another country3s freedom fi-hter!6 The apparent contradiction or lac/ of consistency in the use of the term 6terrorism6 may further be demonstrated by the historical fact that leaders of national liberation movements such as Nelson andela in South )frica, 4abib Dour-ouiba in Tunisia, or )hmed Den Della in )l-eria, to mention only a fe*, *ere ori-inally labeled as terrorists by those *ho controlled the territory at the time, but later became internationally respected statesmen! Chat, then, is the definin- criterion for terrorist acts . the differentia specifica distin-uishin- those acts from eventually le-itimate acts of national resistance or self#defense= Since the times of the &old Car the Enited Nations (r-ani0ation has been tryin- in vain to reach a consensus on the basic issue of definition! The or-ani0ation has intensified its efforts recently, but has been unable to brid-e the -ap bet*een those *ho

associate 6terrorism6 *ith any violent act by non#state -roups a-ainst civilians, state functionaries or infrastructure or military installations, and those *ho believe in the concept of the le-itimate use of force *hen resistance a-ainst forei-n occupation or a-ainst systematic oppression of ethnic andGor reli-ious -roups *ithin a state is concerned! The dilemma facin- the international community can best be illustrated by reference to the contradictin- cate-ori0ation of or-ani0ations and movements such as Palestine 7iberation (r-ani0ation 8P7(: . *hich is a terrorist -roup for 'srael and a liberation movement for )rabs and uslims . the Iashmiri resistance -roups . *ho are terrorists in the perception of 'ndia, liberation fi-hters in that of Pa/istan . the earlier &ontras in Nicara-ua . freedom fi-hters for the Enited States, terrorists for the Socialist camp . or, most drastically, the )f-hani u,ahedeen 8later to become the Taliban movement:5 durin- the &old Car period they *ere a -roup of freedom fi-hters for the Cest, nurtured by the Enited States, and a terrorist -an- for the Soviet Enion! (ne could -o on and on in enumeratin- e"amples of conflictin- cate-ori0ations that cannot be reconciled in any *ay . because of opposin- political interests that are at the roots of those perceptions! 4o*, then, can those contradictin- definitions and conflictin- perceptions and evaluations of one and the same -roup and its actions be e"plained= 'n our analysis, the basic reason for these stri/in- inconsistencies lies in the diver-ent interest of states! $ependin- on *hether a state is in the position of an occupyin- po*er or in that of a rival, or adversary, of an occupyin- po*er in a -iven territory, the definition of terrorism *ill 6fluctuate6 accordin-ly! ) state may eventually see itself as protector of the ri-hts of a certain ethnic -roup outside its territory and *ill therefore spea/ of a 6liberation stru--le,6 not of 6terrorism6 *hen acts of violence by this -roup are concerned, and vice#versa! The Enited Nations (r-ani0ation has been unable to reach a decision on the definition of terrorism e"actly because of these conflictin- interests of soverei-n states that determine in each and every instance ho* a particular armed movement 8i!e! a non# state actor: is labeled in re-ard to the terrorists#freedom fi-hter dichotomy! ) 6policy of double standards6 on this vital issue of international affairs has been the unavoidable conseAuence! This 6definitional predicament6 of an or-ani0ation consistin- of soverei-n states . and not of peoples, in spite of the emphasis in the Preamble to the Enited Nations &harterS . has become even more serious in the present -lobal po*er constellation5 one superpo*er e"ercises the decisive role in the Security &ouncil, former -reat po*ers of the &old Car era as *ell as medium po*ers are increasin-ly bein- mar-inali0ed+ and the problem has become even more acute since the terrorist attac/s of 11 September 2001 ' the Enited States!1>1 The absence of a la* definin- 6acts of terrorism6 may result in abuse and oppression on the part of the police or military! )n illustration is *hen a -roup of persons are merely en-a-ed in a drin/in- spree! Oet the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant to ;!(! No! <! (bviously, this is abuse and oppression on their part! 't must be remembered that an act can only be considered a crime if there is a la* definin- the same as such and imposin- the correspondin- penalty thereon! So far, the *ord 6terrorism6 appears only once in our criminal la*s, i!e!, in P!$! No! 1@3< dated 1anuary 1?, 1J@1 enacted by President arcos durin- the artial 7a* re-ime! This decree is entitled 6&odifyin- The 2arious 7a*s on )nti#Subversion and 'ncreasin- The Penalties for embership in Subversive (r-ani0ations!6 The *ord 6terrorism6 is mentioned in the follo*inprovision5 6That one *ho conspires *ith any other person for the purpose of overthro*in- the ;overnment of the Philippines " " " by force, violence, <5;;o;64C, " " " shall be punished byreclusion temporal " " "!6 P!$! No! 1@3< *as repealed by %!(! No! 1?9 8*hich outla*s the &ommunist Party of the Philippines: enacted by President &ora0on )Auino on ay <, 1J@<! These t*o 82: la*s, ho*ever, do not define 6acts of terrorism!6 Since there is no la* definin6acts of terrorism,6 it is President )rroyo alone, under ;!(! No! <, *ho has the discretion to determine *hat acts constitute terrorism! 4er ,ud-ment on this aspect is absolute, *ithout restrictions! &onseAuently, there can be indiscriminate arrest *ithout *arrants, brea/in- into offices and residences, ta/in- over the media enterprises, prohibition and dispersal of all assemblies and -atherin-s unfriendly to the administration! )ll these can be effected in the name of ;!(! No! <! These acts -o far beyond the callin-#out po*er of the President! &ertainly, they violate the due process clause of the &onstitution! Thus, this &ourt declares that the 6acts of terrorism6 portion of ;!(! No! < is unconstitutional!

Si-nificantly, there is nothin- in ;!(! No! < authori0in- the military or police to commit acts beyond *hat are 253544a;y a2A aDD;oD;6a<5 <o 4@DD;544 a2A D;5752< 8aB8544 76o85235, the limitation of their authority in pursuin- the (rder! (ther*ise, such acts are considered ille-al! Ce first e"amine G.R. No. 171396 8"a*id et al.: The &onstitution provides that 6the ri-ht of the people to be secured in their persons, houses, papers and effects a-ainst unreasonable search and sei0ure of *hatever nature and for any purpose shall be in iolable1 and no search *arrant or Ba;;a2< o> a;;54< shall issue e"cept upon probable cause to be determined personally by the ,ud-e after e"amination under oath or affirmation of the complainant and the *itnesses he may produce, and particularly describin- the place to be searched and the persons or thin-s to be sei0ed!61>2 The plain import of the lan-ua-e of the &onstitution is that searches, sei0ures and arrests are 2o;Ca88y unreasonable unless authori0ed by a validly issued search *arrant or *arrant of arrest! Thus, the fundamental protection -iven by this provision is that bet*een person and police must stand the protective authority of a ma-istrate clothed *ith po*er to issue or refuse to issue search *arrants or *arrants of arrest! 1>3 'n the Drief )ccount1>> submitted by petitioner $avid, certain facts are established5 first, he *as arrested *ithout *arrant+ second, the PNP operatives arrested him on the basis of PP 1019+ third, he *as brou-ht at &amp Iarin-al, Hue0on &ity *here he *as fin-erprinted, photo-raphed and boo/ed li/e a criminal suspect+ fourth,he *as treated brusAuely by policemen *ho 6held his head and tried to push him6 inside an unmar/ed car+ fifth, he *as char-ed *ith 2iolation of %a<a4 PaC:a24a %68a29 No. ))01>< and I236<629 <o S5A6<6o2+ si:th, he *as detained for seven 89: hours+ and se*enth,he *as eventually released for insufficiency of evidence! Section <, Rule 113 of the Revised Rules on &riminal Procedure provides5 Sec! <! Arrest wit$out warrant2 w$en law!ul. # ) peace officer or a private person may, *ithout a *arrant, arrest a person5 -a. Chen, in his presence, the person to be arrested has committed, is actually committin-, or is attemptin- to commit an offense! -:. Chen an offense has ,ust been committed and he has probable cause to believe based on personal /no*led-e of facts or circumstances that the person to be arrested has committed it+ and " " "! Neither of the t*o 82: e"ceptions mentioned above ,ustifies petitioner $avid3s *arrantless arrest! $urin- the inAuest for the char-es of i236<629 <o 45A6<6o2 and 76o8a<6o2 o> %P ))0, all that the arrestin- officers could invo/e *as their observation that some rallyists *ere *earin- t#shirts *ith the invective +Oust 4loria 5ow+ and their erroneous assumption that petitioner $avid *as the leader of the rally!1>? &onseAuently, the 'nAuest Prosecutor ordered his immediate release on the -round of insufficiency of evidence! 4e noted that petitioner $avid *as not *earin- the sub,ect t#shirt and even if he *as *earin- it, such fact is insufficient to char-e him *ith i236<629 <o 45A6<6o2! Further, he also stated that there is insufficient evidence for the char-e of 76o8a<6o2 o> %P ))0 as it *as not even /no*n *hether petitioner $avid *as the leader of the rally! 1>9 Dut *hat made it doubly *orse for petitioners $avid et al. is that not only *as their ri-ht a-ainst *arrantless arrest violated, but also their ri-ht to peaceably assemble! Section > of )rticle ''' -uarantees5 No la* shall be passed abrid-in- the freedom of speech, of e"pression, or of the press, or the ri-ht of the people peaceably to assemble and petition the -overnment for redress of -rievances!

6)ssembly6 means a ri-ht on the part of the citi0ens to meet peaceably for consultation in respect to public affairs! 't is a necessary conseAuence of our republican institution and complements the ri-ht of speech! )s in the case of freedom of e"pression, this ri-ht is not to be limited, much less denied, e"cept on a sho*in- of a 385a; a2A D;5452< Aa295; of a substantive evil that &on-ress has a ri-ht to prevent! 'n other *ords, li/e other ri-hts embraced in the freedom of e"pression, the ri-ht to assemble is not sub,ect to previous restraint or censorship! 't may not be conditioned upon the prior issuance of a permit or authori0ation from the -overnment authorities e"cept, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly reAuired! The rin-in- truth here is that petitioner $avid, et al! *ere arrested *hile they *ere e"ercisin- their ri-ht to peaceful assembly! They *ere not committin- any crime, neither *as there a sho*in- of a clear and present dan-er that *arranted the limitation of that ri-ht! )s can be -leaned from circumstances, the char-es of 6236<629 <o 45A6<6o2and 76o8a<6o2 o> %P ))0 *ere mere afterthou-ht! %ven the Solicitor ;eneral, durin- the oral ar-ument, failed to ,ustify the arrestin- officers3 conduct! 'n "e @onge *. Oregon,1>@ it *as held that peaceable assembly cannot be made a crime, thus5 Peaceable assembly for la*ful discussion cannot be made a crime! The holdin- of meetin-s for peaceable political action cannot be proscribed! Those *ho assist in the conduct of such meetin-s cannot be branded as criminals on that score! The Auestion, if the ri-hts of free speech and peaceful assembly are not to be preserved, is not as to the auspices under *hich the meetin- *as held but as to its purpose+ not as to the relations of the spea/ers, but *hether their utterances transcend the bounds of the freedom of speech *hich the &onstitution protects! 'f the persons assemblin- have committed crimes else*here, if they have formed or are en-a-ed in a conspiracy a-ainst the public peace and order, they may be prosecuted for their conspiracy or other violations of valid la*s!%@< 6< 64 a A6>>5;52< Ca<<5; B=52 <=5 S<a<5, 624<5aA o> D;o453@<629 <=5C >o; 4@3= o>>52454, 456E54 @Do2 C5;5 Da;<636Da<6o2 62 a D5a35a:85 a445C:8y a2A a 8aB>@8 D@:863 A643@446o2 a4 <=5 :a464 >o; a 3;6C62a8 3=a;95. (n the basis of the above principles, the &ourt li/e*ise considers the dispersal and arrest of the members of I E et al. 8;!R! No! 191>@3: un*arranted! )pparently, their dispersal *as done merely on the basis of alacaMan-3s directive cancelin- all permits previously issued by local -overnment units! This is arbitrary! The *holesale cancellation of all permits to rally is a blatant disre-ard of the principle that 6>;55AoC o> a445C:8y 64 2o< <o :5 86C6<5A, C@3= 8544 A5265A, 5G35D< o2 a 4=oB629 o> a clear and present danger o> a 4@:4<a2<675 5768 <=a< <=5 S<a<5 =a4 a ;69=< <o D;5752<!61>J Tolerance is the rule and limitation is the e"ception! (nly upon a sho*in- that an assembly presents a clear and present dan-er that the State may deny the citi0ens3 ri-ht to e"ercise it! 'ndeed, respondents failed to sho* or convince the &ourt that the rallyists committed acts amountin- to la*less violence, invasion or rebellion! Cith the blan/et revocation of permits, the distinction bet*een protected and unprotected assemblies *as eliminated! oreover, under DP @@0, the authority to re-ulate assemblies and rallies is lod-ed *ith the local -overnment units! They have the po*er to issue permits and to revo/e such permits a><5; A@5 2o<635 a2A =5a;629 on the determination of the presence of clear and present dan-er! 4ere, petitioners *ere not even notified and heard on the revocation of their permits! 1<0 The first time they learned of it *as at the time of the dispersal! Such absence of notice is a fatal defect! Chen a person3s ri-ht is restricted by -overnment action, it behooves a democratic -overnment to see to it that the restriction is fair, reasonable, and accordin- to procedure! G.R. No. 171(09, 8&acho#(livares, et al.: presents another facet of freedom of speech i!e!, the freedom of the press! Petitioners3 narration of facts, *hich the Solicitor ;eneral failed to refute, established the follo*in-5 first, the"aily .ribune!s offices *ere searched *ithout *arrant+second, the police operatives sei0ed several materials for publication+ third, the search *as conducted at about 1500 o3 cloc/ in the mornin- of February 2<, 200?+ fourth,the search *as conducted in the absence of any official of the "aily .ribune e"cept the security -uard of the buildin-+ and fifth, policemen stationed themselves at the vicinity of the "aily .ribune offices! Thereafter, a *ave of *arnin- came from -overnment officials! Presidential &hief of Staff ichael $efensor *as Auoted as sayin- that such raid *as KC5a2< <o 4=oB a M4<;o29 D;545235,H <o <588 C5A6a o@<85<4 2o< <o 3o22675 o; Ao a2y<=629 <=a< Bo@8A =58D <=5 ;5:584 62 :;629629 AoB2 <=64 9o75;2C52<.K $irector ;eneral 7omibao further stated that K6> <=5y Ao 2o< >o88oB <=5 4<a2Aa;A4 ,a2A <=5 4<a2Aa;A4 a;5 6> <=5y Bo@8A 3o2<;6:@<5 <o 624<a:686<y 62 <=5 9o75;2C52<, o; 6> <=5y Ao 2o<

4@:43;6:5 <o B=a< 64 62 G525;a8 O;A5; No. * a2A P;o3. No. 1017 , B5 B688 ;53oCC52A a N<aF5o75;!36 National Telecommunications &ommissioner Ronald Solis ur-ed television and radio net*or/s to +cooperate+ *ith the -overnment for the duration of the state of national emer-ency! !5 Ba;25A <=a< =64 a9523y B688 2o< =546<a<5 <o ;53oCC52A <=5 38o4@;5 o> a2y :;oaA3a4< o@<>6< <=a< 76o8a<54 ;@854 45< o@< >o; C5A6a 3o75;a95 A@;629 <6C54 B=52 <=5 2a<6o2a8 453@;6<y 64 <=;5a<525A .1<1 The search is ille-al! Rule 12? of The Revised Rules on &riminal Procedure lays do*n the steps in the conduct of search and sei0ure! S53<6o2 ( reAuires that a 45a;3= Ba;;a2< be issued upon probable cause in connection *ith one specific offence to be determined personally by the ,ud-e after e"amination under oath or affirmation of the complainant and the *itnesses he may produce! S53<6o2 ) mandates that the search of a house, room, or any other premise be made 62 <=5 D;545235 o> <=5 8aB>@8 o33@Da2< thereof or any member of his family or in the absence of the latter, in the presence of t*o 82: *itnesses of sufficient a-e and discretion residin- in the same locality! )nd S53<6o2 9 states that the *arrant must direct that it be served in the Aay<6C5, unless the property is on the person or in the place ordered to be searched, in *hich case a direction may be inserted that it be served at any time of the day or ni-ht! )ll these rules *ere violated by the &'$; operatives! Not only that, the search violated petitioners3 freedom of the press! The best -au-e of a free and democratic society rests in the de-ree of freedom en,oyed by its media! 'n the 9urgos *. Chief of ,taff1<2 this &ourt held that ## )s heretofore stated, the premises searched *ere the business and printin- offices of the 6 etropolitan ail6 and the 6Be $orum6 ne*spapers! )s a conseAuence of the search and sei0ure, <=545 D;5C6454 B5;5 DaA8o3F5A a2A 45a85A, B6<= <=5 >@;<=5; ;54@8< <=a< <=5 D;62<629 a2A D@:863a<6o2 o> 4a6A 25B4DaD5;4 B5;5 A643o2<62@5A ! S@3= 38o4@;5 64 62 <=5 2a<@;5 o> D;576o@4 ;54<;a62< o; 3524o;4=6D a:=o;;52< <o <=5 >;55AoC o> <=5 D;544 9@a;a2<55A @2A5; <=5 >@2AaC52<a8 8aB, a2A 3o24<6<@<54 a 76;<@a8 A526a8 o> D5<6<6o25;4P >;55AoC <o 5GD;544 <=5C458754 62 D;62<. T=64 4<a<5 o> :5629 64 Da<52<8y a2a<=5Ca<63 <o a A5Co3;a<63 >;aC5Bo;F B=5;5 a >;55, a85;< a2A 5752 C686<a2< D;544 64 54452<6a8 >o; <=5 Do86<63a8 52869=<52C52< a2A 9;oB<= o> <=5 36<6E52;y! Chile admittedly, the "aily .ribune *as not padloc/ed and sealed li/e the 6 etropolitan ail6 and 6Be $orum6 ne*spapers in the above case, yet it cannot be denied that the &'$; operatives e"ceeded their enforcement duties! The search and sei0ure of materials for publication, the stationin- of policemen in the vicinity of the .he "aily .ribune offices, and the arro-ant *arnin- of -overnment officials to media, are plain censorship! 't is that officious functionary of the repressive -overnment *ho tells the citi0en that he may spea/ only if allo*ed to do so, and no more and no less than *hat he is permitted to say on pain of punishment should he be so rash as to disobey!1<3 Endoubtedly, the .he "aily .ribune *as sub,ected to these arbitrary intrusions because of its anti#-overnment sentiments! This &ourt cannot tolerate the blatant disre-ard of a constitutional ri-ht even if it involves the most defiant of our citi0ens! Freedom to comment on public affairs is essential to the vitality of a representative democracy! 't is the duty of the courts to be *atchful for the constitutional ri-hts of the citi0en, and a-ainst any stealthy encroachments thereon! The motto should al*ays be obsta principiis!1<> 'ncidentally, durin- the oral ar-uments, the Solicitor ;eneral admitted that the search of the .ribune!s offices and the sei0ure of its materials for publication and other papers are ille-al+ and that the same are inadmissible 6for any purpose,6 thus5 1EST'&% &)77%1(5 Oou made Auite a mouthful of admission *hen you said that the policemen, *hen inspected the Tribune for the purpose of -atherin- evidence and you admitted that the policemen *ere able to -et the clippin-s! 's that not in admission of the admissibility of these clippin-s that *ere ta/en from the Tribune= S(7'&'T(R ;%N%R)7 D%N'P)O(5 Ender the la* they *ould seem to be, if they *ere ille-ally sei0ed, ' thin/ and ' /no*, Oour 4onor, and these are inadmissible for any purpose!1<<

""""""""" SR! )SS(! 1EST'&% PEN(5 These have been published in the past issues of the $aily Tribune+ all you have to do is to -et those past issues! So *hy do you have to -o there at 1 o3cloc/ in the mornin- and *ithout any search *arrant= $id they become suddenly part of the evidence of rebellion or incitin- to sedition or *hat= S(7;%N D%N'P)O(5 Cell, it *as the police that did that, Oour 4onor! Not upon my instructions! SR! )SS(! 1EST'&% PEN(5 )re you sayin- that the act of the policeman is ille-al, it is not based on any la*, and it is not based on Proclamation 1019! S(7;%N D%N'P)O(5 't is not based on Proclamation 1019, Oour 4onor, because there is nothin- in 1019 *hich says that the police could -o and inspect and -ather clippin-s from $aily Tribune or any other ne*spaper! SR! )SS(! 1EST'&% PEN(5 's it based on any la*= S(7;%N D%N'P)O(5 )s far as ' /no*, 2o, Oour 4onor, from the facts, 2o! SR! )SS(! 1EST'&% PEN(5 So, it has no basis, no le-al basis *hatsoever= S(7;%N D%N'P)O(5 aybe so, Oour 4onor! aybe so, that is *hy ' said, ' don3t /no* if it is premature to say this, B5 Ao 2o< 3o2Ao25 <=64! I> <=5 D5oD85 B=o =a75 :552 62?@;5A :y <=64 Bo@8A Ba2< <o 4@5 <=5C, <=5y 3a2 4@5 a2A <=5;5 a;5 ;5C5A654 >o; <=64 !1<? 7i/e*ise, the *arrantless arrests and sei0ures e"ecuted by the police *ere, accordin- to the Solicitor ;eneral, ille-al and cannot be condoned, thus5 &4'%F 1EST'&% P)N;)N'D)N5 There seems to be some confusions if not contradiction in your theory! S(7'&'T(R ;%N%R)7 D%N'P)O(5 ' don3t /no* *hether this *ill clarify! The acts, the supposed ille-al or unla*ful acts committed on the occasion of 1019, as ' said, 6< 3a22o< :5 3o2Ao25A! Oou cannot blame the President for, as you said, a misapplication of the la*! These are acts of

the police officers, that is their responsibility!1<9 The $issentin- (pinion states that PP 1019 and ;!(! No! < are constitutional in every aspect and 6should result in no constitutional or statutory breaches if applied accordin- to their letter!6 The &ourt has passed upon the constitutionality of these issuances! 'ts ratiocination has been e"haustively presented! )t this point, suffice it to reiterate that PP 1019 is limited to the callin- out by the President of the military to prevent or suppress la*less violence, invasion or rebellion! Chen in implementin- its provisions, pursuant to ;!(! No! <, the military and the police committed acts *hich violate the citi0ens3 ri-hts under the &onstitution, this &ourt has to declare such acts unconstitutional and ille-al! 'n this connection, &hief 1ustice )rtemio 2! Pan-aniban3s concurrin- opinion, attached hereto, is considered an inte-ral part of this ponencia! SUMMATION 'n sum, the liftin- of PP 1019 throu-h the issuance of PP 1021 . a supervenin- event . *ould have normally rendered this case moot and academic! 4o*ever, *hile PP 1019 *as still operative, ille-al acts *ere committed alle-edly in pursuance thereof! Desides, there is no -uarantee that PP 1019, or one similar to it, may not a-ain be issued! )lready, there have been media reports on )pril 30, 200? that alle-edly PP 1019 *ould be reimposed 6if the ay 1 rallies6 become 6unruly and violent!6 &onseAuently, the transcendental issues raised by the parties should not be 6evaded+6 they must no* be resolved to prevent future constitutional aberration! The &ourt finds and so holds that PP 1019 is constitutional insofar as it constitutes a call by the President for the )FP to prevent or suppress 8aB8544 76o85235. The proclamation is sustained by Section 1@, )rticle 2'' of the &onstitution and the relevant ,urisprudence discussed earlier! 4o*ever, PP 10193s e"traneous provisions -ivin- the President e"press or implied po*er 81: to issue decrees+ 82: to direct the )FP to enforce obedience to a88 8aB4even those not related to la*less violence as *ell as decrees promul-ated by the President+ and 83: to impose standards on media or any form of prior restraint on the press, are ultra *ires and @23o24<6<@<6o2a8! The &ourt also rules that under Section 19, )rticle B'' of the &onstitution, the President, in the absence of a le-islation, cannot ta/e over privately#o*ned public utility and private business affected *ith public interest! 'n the same vein, the &ourt finds ;!(! No! < valid! 't is an (rder issued by the President . actin- as &ommander#in#&hief . addressed to subalterns in the )FP to carry out the provisions of PP 1019! Si-nificantly, it also provides a valid standard . that the military and the police should ta/e only the 6253544a;y a2A aDD;oD;6a<5 a3<6o24 a2A C5a4@;54 <o 4@DD;544 a2A D;5752< a3<4 o> 8aB8544 76o85235!6Dut the *ords 6a3<4 o> <5;;o;64C6 found in ;!(! No! < have not been le-ally defined and made punishable by &on-ress and should thus be deemed deleted from the said ;!(! Chile 6terrorism6 has been denounced -enerally in media, no la* has been enacted to -uide the military, and eventually the courts, to determine the limits of the )FP3s authority in carryin- out this portion of ;!(! No! <! (n the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that 81: the *arrantless arrest of petitioners Randolf S! $avid and Ronald 7lamas+ 82: the dispersal of the rallies and *arrantless arrest of the I E and N)F7E# I E members+ 83: the imposition of standards on media or any prior restraint on the press+ and 8>: the *arrantless search of the .ribune offices and the *himsical sei0ures of some articles for publication and other materials, are not authori0ed by the &onstitution, the la* and ,urisprudence! Not even by the valid provisions of PP 1019 and ;!(! No! <! (ther than this declaration of invalidity, this &ourt cannot impose any civil, criminal or administrative sanctions on the individual police officers concerned! They have not been individually identified and -iven their day in court! The civil complaints or causes of action andGor relevant criminal 'nformations have not been presented before this &ourt! %lementary due process bars this &ourt from ma/in- any specific pronouncement of civil, criminal or administrative liabilities! 't is B588 <o ;5C5C:5; <=a< C686<a;y DoB5; 64 a C5a24 <o a2 52A a2A 4@:4<a2<675 36768 ;69=<4 a;5 52A4 62 <=5C458754. !oB

<o 9675 <=5 C686<a;y <=5 DoB5; 6< 255A4 <o D;o<53< <=5 R5D@:863 B6<=o@< @2253544a;68y <;aCD8629 62A676A@a8 ;69=<4 64 o25 o> <=5 5<5;2a8 :a8a23629 <a4F4 o> a A5Co3;a<63 4<a<5 !$urin- emer-ency, -overnmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our people3s liberty! Perhaps, the vital lesson that *e must learn from the theorists *ho studied the various competin- political philosophies is that, it is possible to -rant -overnment the authority to cope *ith crises *ithout surrenderin- the t*o vital principles of constitutionalism5 <=5 Ca62<52a235 o> 859a8 86C6<4 <o a;:6<;a;y DoB5;, and Do86<63a8 ;54Do246:686<y o> <=5 9o75;2C52< <o <=5 9o75;25A!1<@ /!EREFORE, the Petitions are partly -ranted! The &ourt rules that PP 1019 is CONSTITUTIONAL insofar as it constitutes a call by President ;loria acapa-al#)rroyo on the )FP <o D;5752< o; 4@DD;544 8aB8544 76o85235! 4o*ever, the provisions of PP 1019 commandin- the )FP to enforce la*s not related to la*less violence, as *ell as decrees promul-ated by the President, are declared UNCONSTITUTIONAL! 'n addition, the provision in PP 1019 declarin- national emer-ency under Section 19, )rticle 2'' of the &onstitution is CONSTITUTIONAL, but such declaration does not authori0e the President to ta/e over privately# o*ned public utility or business affected *ith public interest *ithout prior le-islation! ;!(! No! < is CONSTITUTIONAL since it provides a standard by *hich the )FP and the PNP should implement PP 1019, i!e! *hatever is 6253544a;y a2A aDD;oD;6a<5 a3<6o24 a2A C5a4@;54 <o 4@DD;544 a2A D;5752< a3<4 o> 8aB8544 76o85235.6 Considerin- that 6acts of terrorism6 have not yet been defined and made punishable by the 7e-islature, such portion of ;!(! No! < is declared UNCONSTITUTIONAL. The *arrantless arrest of Randolf S! $avid and Ronald 7lamas+ the dispersal and *arrantless arrest of the I E and N)F7E# I E members durin- their rallies, in the absence of proof that these petitioners *ere committin- acts constitutin- la*less violence, invasion or rebellion and violatin- DP @@0+ the imposition of standards on media or any form of prior restraint on the press, as *ell as the *arrantless search of the .ribune offices and *himsical sei0ure of its articles for publication and other materials, are declared UNCONSTITUTIONAL! No costs! SO ORDERED! ANGELINA SANDOVAL&GUTIERREZ )ssociate 1ustice C% &(N&ER5 ARTEMIO V. PANGANI%AN &hief 1ustice 8(n leave: RE"NATO S. PUNO )ssociate 1ustice CONSUELO "NARES&SANTIAGO )ssociate 1ustice MA. ALICIA AUSTRIA&MARTINEZ

LEONARDO A. #UISUM%ING )sscociate 1ustice ANTONIO T. CARPIO )sscociate 1ustice RENATO C. CORONA

)ssociate 1ustice CONC!ITA CARPIO MORALES )ssociate 1ustice ADOLFO S. AZCUNA )ssociate 1ustice MINITA V. C!ICO&NAZARIO )ssociate 1ustice PRES%ITERO $. VELASCO, $R. )ssociate 1ustice &%RT'F'&)T'(N

)sscociate 1ustice ROMEO $. CALLE$O, SR. )sscociate 1ustice DANTE O. TINGA )sscociate 1ustice CANCIO C. GARCIA )sscociate 1ustice

Pursuant to Section 13, )rticle 2''' of the &onstitution, it is hereby certified that the conclusions in the above $ecision *ere reached in consultation before the case *as assi-ned to the *riter of the opinion of the &ourt! ARTEMIO V. PANGANI%AN &hief 1ustice

Foo<2o<54
1

Law and "isorder, .he $ranklin

emorial Lectures, 1ustice Tom &! &lar/ . 7ecturer, 2olume B'B, 1J91, p! 2J!

&hief 1ustice )rtemio 2! Pan-aniban, Liberty and Prosperity, February 1<, 200?!

)rticulated in the *ritin-s of the ;ree/ philosopher, 4eraclitus of %phesus, <>0#>@0 D!&!, *ho propounded universal impermanence and that all thin-s, notably opposites are interrelated!
3 >

Respondents3 &omment dated Ibid. Ibid.

arch ?, 200?!

<

inutes of the 'ntelli-ence Report and Security ;roup, Philippine )rmy, )nne" 6'6 of Respondents3 &onsolidated &omment!
9 @

Respondents3 &onsolidated &omment! Ibid.

10

Ibid. Petition in ;!R! No! 1913J?, p! <!

11

Police action in various parts of etro anila and the reactions of the hu-e cro*ds bein- dispersed *ere broadcast as 6brea/in- ne*s6 by the ma,or television stations of this country!
12 13

Petition in ;!R! No! 191>00, p! 11! Ibid.

1>

The prime duty of the ;overnment is to serve and protect the people! The ;overnment may call upon the people to defend the State and, in the fulfillment thereof, all citi0ens may be reAuired, under conditions provided by la*, to render personal military or civil service!
1<

No person shall be deprived of life, liberty, or property *ithout due process of la*, nor shall any person be denied the eAual protection of the la*s!
1?

The ri-ht of the people to be secure in their persons, houses, papers, and effects a-ainst unreasonable searches and sei0ures of *hatever nature and for any purpose shall be inviolable, and no search *arrant or *arrant of arrest shall issue e"cept upon probable cause to be determined personally by the ,ud-e after e"amination under oath or affirmation of the complainant and the *itnesses he may produce, and particularly describin- the place to be searched and the persons or thin-s to be sei0ed!
19

No la* shall be passed abrid-in- the freedom of speech, of e"pression, or of the press, or the ri-ht of the people peaceably to assemble and petition the ;overnment for redress of -rievances!
1@

-1. The &on-ress, by a vote of t*o#thirds of both 4ouses in ,oint session assembled, votin- separately, shall have the sole po*er to declare the e"istence of a state of *ar!
1J

-2. 'n times of *ar or other national emer-ency, the &on-ress may, by la*, authori0e the President, for a limited period and sub,ect to such restrictions as it may prescribe, to e"ercise po*ers necessary and proper to carry out a declared national policy! Enless sooner *ithdra*n by resolution of the &on-ress, such po*ers shall cease upon the ne"t ad,ournment thereof! 'n times of national emer-ency, *hen the public interest so reAuires, the State may, durin- the emer-ency and under reasonable terms prescribed by it, temporarily ta/e over or direct the operation of any privately o*ned public utility or business affected *ith public interest!
20 21

1 &ranch 139 K1@03L!

4o*ard 7! acDain, 6,ome )spects of @udicial ;e*iew,+ 9acon Lectures on the Constitution of the 1nited ,tates 8Doston5 Doston Eniversity 4effernan Press, 1J3J:, pp! 39?#99!
22

The &ourt has no self#startin- capacity and must a*ait the action of some liti-ant so a--rieved as to have a ,usticiable case! 8Shapiro and Tresolini, )merican Constitutional Law, Si"th %dition, 1J@3, p! 9J:!
23 2>

&ru0, Philippine Political 7a*, 2002 %d!, p! 2<J!

2<

Ibid. Pro*ince of 9atangas *. ;omulo, ;!R! No! 1<299>, ay 29, 200>, >2J S&R) 93?!

2?

9anco $ilipino ,a*ings and ortgage 9ank *. .uaCon, @r., ;!R! No! 1329J<, arch 10, 200>, >2< S&R) 12J+ Ada. "e "abao *. Court of )ppeals, ;!R! No! 11?<, arch 23, 200>, >2? S&R) J1+ and Paloma *. Court of )ppeals, ;!R! No! 1><>31, November 11, 2003, >1< S&R) <J0!
29

;oyal Cargo Corporation *. Ci*il )eronautics 9oard, ;!R! Nos! 1030<<#<?, 1anuary 2?, 200>, >21 S&R) 21+ Ada. "e "abao *. Court of )ppeals, supra!
2@ 2J

Lacson *. PereC, ;!R! No! 1>99@0,

ay 10, 2001, 3<9 S&R) 9<?!

30

&ru0, Philippine Political 7a*, 2002, p! 2?@ citin- 5orton *. ,helby, 11@ E!S! >2<! Pro*ince of 9atangas *. ;omulo, supra! Lacson *. PereC, supra. Pro*ince of 9atangas *. ;omulo, supra.

31

32

33

)lbaEa *. Commission on Elections, ;!R! No! 1?3302, 1uly 23, 200>, >3< S&R) J@, )cop *. 4uingona, @r., ;!R! No! 13>@<<, 1uly 2, 2002, 3@3 S&R) <99, ,anlakas *. E:ecuti*e ,ecretary, ;!R! No! 1<J0@<, February 3, 200>, >21 S&R) ?<?!
3> 3<

,alonga *. CruC PaEo, et al., No! 7# <J<2>, February 1@, 1J@<, 13> S&R) >3@! ;!R! No! 1<J0@<, February 3, 200>, >21 S&R) ?<?! Dlac/3s 7a* $ictionary, ?th %d! 1JJ1, p! J>1! ,alonga *. Barner 9arnes J Co., @@ Phil! 12< 81J<1:! 29< Iy J1, 120 SC2d 9?< 81J3@:! 1J Cend! <? 81@39:! 232 N& >@, <J S%2d 3<J 81J<0:! 302 E!S! ?33! 31@ E!S! >>?! ?< Phil! <? 81J39:! ;!R! No! 119, November 9, 1J>< 8Enreported:!

3?

39

3@

3J

>0

>1

>2

>3

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><

>?

;!R! No! 2J>9, 1anuary 11, 1J<J 8Enreported:! 110 Phil! 331 81J?0:! 99 Phil! 1012 81J>9:!

>9

>@

@> Phil! 3?@ 81J>J: The &ourt held5 6)bove all, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushin- aside, if *e must, technicalities of procedure!6
>J <0

7#No! >000>, 1anuary 31, 1J9<, ?2 S&R) 29<!

.a3ada . .u era, ;!R! No! ?3J1<, )pril 2>, 1J@<, 13? S&R) 29, *here the &ourt held that *here the Auestion is one of public duty and the enforcement of a public ri-ht, the people are the real party in interest, and it is sufficient that the petitioner is a citi0en interested in the e"ecution of the la*+
<1

Legaspi . %i il Ser ice %ommission, ;!R! No! 9211J, ay 2J, 1J@9, 1<0 S&R) <30, *here the &ourt held that in cases involvin- an assertion of a public ri-ht, the reAuirement of personal interest is satisfied by the mere fact that the petitioner is a citi0en and part of the -eneral public *hich possesses the ri-ht! 4apatiran ng mga +agliling0od sa Pama$alaan ng Pilipinas1 Inc. . .an, 7! No! @1311, 1une 30, 1J@@, 1?3 S&R) 391, *here the &ourt held that ob,ections to ta"payers3 lac/ of personality to sue may be disre-arded in determinin- the validity of the 2)T la*+ Albano . Reyes, ;!R! No! @3<<1, 1uly 11, 1J@J, 19< S&R) 2?>, *here the &ourt held that *hile no e"penditure of public funds *as involved under the Auestioned contract, nonetheless considerin- its important role in the economic development of the country and the ma-nitude of the financial consideration involved, public interest *as definitely involved and this clothed petitioner *ith the le-al personality under the disclosure provision of the &onstitution to Auestion it! Association o! Small Landowners in t$e P$ilippines1 Inc. . Sec. o! Agrarian Re!orm1 ;!R! No! 9@9>2, 1uly 1>, 1J@J, 19< S&R) 3>3, *here the &ourt ruled that *hile petitioners are strictly spea/in-, not covered by the definition of a 6proper party,6 nonetheless, it has the discretion to *aive the reAuirement, in determinin- the validity of the implementation of the &)RP! )on5ales . Macaraig1 Jr., ;!R! No! @9?3?, November 1J, 1JJ0, 1J1 S&R) ><2, *here the &ourt held that it en,oys the open discretion to entertain ta"payer3s suit or not and that a member of the Senate has the reAuisite personality to brin- a suit *here a constitutional issue is raised! Maceda . Macaraig1 Jr., ;!R! No! @@2J1, ay 31, 1JJ1, 1J9 S&R) 991, *here the &ourt held that petitioner as a ta"payer, has the personality to file the instant petition, as the issues involved, pertains to ille-al e"penditure of public money+ *sme3a . %omelec, ;!R! No! 10031@, 10030@, 100>19,100>20, 1uly 30, 1JJ1, 1JJ S&R) 9<0, *here the &ourt held that *here serious constitutional Auestions are involved, the 6transcendental importance6 to the public of the cases involved demands that they be settled promptly and definitely, brushin- aside technicalities of procedures+ 6e )uia . %omelec, ;!R! No! 10>912, ay ?, 1JJ2, 20@ S&R) >20, *here the &ourt held that the importance of the issues involved concernin- as it does the political e"ercise of Aualified voters affected by the apportionment, necessitates the brushin- aside of the procedural reAuirement of locus standi!

<2

;!R! No! 1332<0, 1uly J, 2002, 3@> S&R) 1<2! ;!R! Nos! 13@<90, 13@<92, 13@<@9, 13@?@0, 13@?J@, (ctober 10, 2000, 3>2 S&R) >>J! ;!R! No! 1<1>><, )pril 11, 2002, 3@0 S&R) 93J! ,upra. ;!R! No! 11@J10, November 1?, 1JJ<, 2<0 S&R) 130! ;!R! No! 132J22, )pril 21, 1JJ@, 2@J S&R) 339! ;!R! No! 1>99@0, 1>99@1, 1>99JJ, 1>9@10, ay 10, 2001, 3<9 S&R) 9<?!

<3

<>

<<

<?

<9

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;!R! No! 1<J0@<, February 3, 200>, >21 S&R) ?<?! 23< S&R) <0? 81JJ>:! ,upra. ,upra. 1J9 S&R) <2, ?0 81JJ1:! ,upra. See 5))CP *. )labama, 3<9 E!S! >>J 81J<@:! ;!R! No! 1>12@>, )u-ust 1<, 2000, 33@ S&R) @1.

?0

?1

?2

?3

?>

?<

??

From the deliberations of the &onstitutional &ommission, the intent of the framers is clear that the immunity of the President from suit is concurrent only *ith his tenure and not his term! 8$e 7eon, Philippine Constitutional Law, 2ol! 2, 200> %d!, p! 302:!
?9

Section 1, )rticle B' of the &onstitution provides5 Public (ffice is a public trust! Public officers and employees must at all times be accountable to the people, serve them *ith utmost responsibility, inte-rity, loyalty and efficiency, act *ith patriotism and ,ustice, and lead modest lives!
?@ ?J

Ibid., Sec! 2! No! 2J0@, September 30, 200<, >91 S&R) @9! J1 Phil! @@2 81J<2:! No! 7#33J?>, $ecember 11, 1J91, >2 S&R) >>@!

90

91

92

93

No! 7#3<<>?, September 19, 1J9>, <J S&R) 1@3! No! 7#?13@@, )pril 20, 1J@3, 121 S&R) >92! .aEada *. Cuenco, 103 Phil! 10<1 81J<9:! Lansang *. 4arcia, supra, pp. >93 and >@1! ,upra.

9>

9<

9?

99

6Five 1ustices . )ntonio, a/asiar, %s-uerra, Fernande0, and )Auino . too/ the position that the proclamation of martial la* and the arrest and detention orders accompanyin- the proclamation posed a 6political Auestion6 beyond the ,urisdiction of the &ourt! 1ustice )ntonio, in a separate opinion concurred in by a/asiar, Fernande0, and )Auino, ar-ued that the &onstitution had deliberately set up a stron- presidency and had concentrated po*ers in times of emer-ency in the hands of the President and had -iven him broad authority and discretion *hich the &ourt *as bound to respect! 4e made reference to the decision in Lansang *. 4arcia but read it as in effect upholdin- the 6political Auestion6 position! Fernande0, in a separate opinion, also ar-ued Lansang, even understood as -ivin- a narro* scope of revie* authority to the &ourt, affirmed the impossible tas/ of Nchec/in-3 the action ta/en by the President! 4ence, he advocated a return to 9arcelon *. 9aker! Similarly, %s-uerra advocated the abandonment of Lansang and a return to 9arcelon! )nd, althou-h 1ustices &astro, Fernando, uMo0# Palma, and, implicitly, Teehan/ee, lined up on the side of ,usticiability as enunciated in Lansang, " " " Darredo, ho*ever, *anted to have the best of both *orlds and opted for the vie* that 6political Auestions are not per se beyond the &ourt3s ,urisdiction !!! but that as a matter of policy implicit in the &onstitution itself the &ourt should abstain from interferin- *ith the %"ecutive3s Proclamation!6 8Dernas, .he 7<=8 Constitution of the ;epublic of the PhilippinesK ) Commentary , 1JJ? %dition, p! 9J>!:
9@ 9J

See Separate (pinion of 1! Puno in Integrated 9ar of the Philippines *. Damora, supra. ,upra. CruC, Philippine Political 7a*, 2002 %d!, p! 2>9! ,antiago *. 4uingona, 1r!, ;!R! No! 13><99, November 1@, 1JJ@, 2J@ S&R) 9<?! ,upra, >@1#>@2! Smith and &otter, Powers of the President during Crises, 1J92, p! ?! Ibid. .he ,ocial Contract 8Ne* Oor/5 $utton, 1J<0:, pp! 123#12>! Smith and &otter, Powers of the President during Crises, 1J92, pp! ?#9! ;epresentati*e 4o*ernment , Ne* Oor/, $utton, 1J<0, pp! 29>, 299#9@! .he "iscourses, D/! 1, &h! BBB'2!

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Smith and &otter, Powers of the President "uring Crises, 1J92! p! @! Ibid. See .he Problem of Constitutional "ictatorship, p! 32@! Ibid., p! 3<3! Ibid., pp! 33@#3>1! Smith and &otter, Powers of the President "uring Crises, 1J92, p! J! Constitutional 4o*ernment and "emocracy, &h! BB2', rev! ed!, Doston5 ;inn T &o!, 1J>J, p! <@0! Ibid, pp! <9>#<@>! ,mith and Cotter, Po*ers of the President $urin- &rises, 1J92, p! 10! ;ossiter, &onstitutional $ictatorship, Princeton5 Princeton Eniversity Press, 1J>@, pp! 2J@#30?! ,mith and Cotter, Powers of the President "uring Crises, 1J92, p! 11! Smith and &otter, Powers of the President "uring Crises, 1J92, p! 12!

J1

J2

J3

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JJ

100

101

Ooun-sto*n Sheet and Tube &o! v! Sa*yer, 3>3 E!S! <9J+ 92 Sup! &t! @?3+ J? 7! %d! 11<3 81J<2:, See &oncurrin- (pinion 1! 1ac/son!
102

See &oncurrin- (pinion of 1ustice 2001, 3?J S&R) 3J3!

103 10>

endo0a in Estrada *. ,andiganbayan, ;!R! No! 1>@<?0, November 1J,

>@1 E!S! 93J, J< 7! %d! 2d ?J9 81J@9:! ,upra! See &oncurrin- (pinion of 1ustice endo0a in Estrada *. ,andiganbayan, supra.

10<

10?

109

9roadrick *. Oklahoma, >13 E!S! ?01 81J93:! Ibid.

10@

>01 E!S! 39, <2#<3, 29 7!%d!2d ??J, ?@0 81J91:, 1nited ,tates *. ;aines, 3?2 E!S! 19, > 7!%d!2d <2> 81J?0:+ 9oard of .rustees, ,tate 1ni*. of 5.F *. $o:, >J2 E!S! >?J, 10? 7!%d!2d 3@@ 81J@J:!
10J

Ermita# alate Hotel and 81J?9:!

110 111

otel Operators )ssociation *. City

ayor , No! 7#2>?J3, 1uly 31, 1J?9, 20 S&R) @>J

;!R! No! 1<J0@<, February 3, 200>, >21 S&R) ?<?, *herein this &ourt sustained President )rroyo3s declaration of a 6state of rebellion6 pursuant to her callin-#out po*er!

11@ 112

Section ,upra. ?, )rticle B2' of the &onstitution! See Republic )ct No! ?J9<!

11J

'ronically, even the 9th Chereas &lause of PP 1019 *hich states that 6)rticle %, ,ection & of our Constitution ma0es t$e de!ense and preser*ation o! the democratic institutions and the State the primary duty of 4o*ernment+ replicates more closely Section 2, )rticle 2 of the 1J93 &onstitution than Section >, )rticle 2 of the 1J@9 &onstitution *hich provides that, 6KtKhe prime duty of the ;overnment is to 45;75 a2A D;o<53< <=5 D5oD85!6
120

)-palo, ,tatutory Construction, $ourth Edition, 1JJ@, p! 1, citin- Legaspi *. inistry of $inance, 11< S&R) >1@ 81J@2:+ 4arcia#Padilla *. Ponce#Enrile, supra. )-uino *. Commission on Election, supra.
121

Section 19, )rticle B'2 of the 1J93 &onstitution reads5 6'n times of national emer-ency *hen the public interest so reAuires, the State may temporarily ta/e over or direct the operation of any privately o*ned public utility or business affected *ith public interest!6
122 123

)ntieau, &onstitutional &onstruction, 1J@2, p!21! &ru0, Philippine Political 7a*, 1JJ@, p! J>! 3>3 E!S! <9J+ 92 Sup! &t! @?3+ J? 7! %d! 11<3 81J<2:! Tresolini, )merican Constitutional Law, 1J<J, Po*er of the President, pp! 2<<#2<9! Smith and &otter, Powers of the President "uring Crises, 1J92, p! 1>

12>

12<

12?

129

The Federal Emergency ;elief )ct of 7<LL opened *ith a declaration that the 53o2oC63 A5D;5446o2created a serious emer-ency, due to *ide#spread unemployment and the inadeAuacy of State and local relief funds, ! ! ! ma/in- it imperative that the Federal ;overnment cooperate more effectively *ith the several States and Territories and the $istrict of &olumbia in furnishin- relief to their needy and distressed people! President Roosevelt in declarin- a ban/ holiday a fe* days after ta/in- office in 1J33 proclaimed that 6heavy and un*arranted *ithdra*als of -old and currency from P ban/in- institutions for the purpose of hoardin-+ !!! resultin- in 6sever drains on the Nation3s stoc/s of -old P have created a national emer-ency,6 reAuirin- his action! %nacted *ithin months after 1apan3s attac/ on Pearl 4arbor, the Emergency Price Control )ct of 7<&% *as desi-ned to prevent 53o2oC63 A648o3a<6o24 from endan-erin- the national defense and security and the effective prosecution of the *ar! 8Smith and &otter, Powers of the President "uring Crises, 1J92, p!1@:
12@

The Emergency )ppropriation )ct for $iscal 7<L6 appropriated fund to meet the emer-ency and necessity for relief in stric/en a-ricultural areas and in another section referred to 6 <=5 D;5452< A;o@9=< 5C5;9523y!6K12JL .he India Emergency $ood )id )ct of 7<67 provided for emer-ency shipments of food to 'ndia to meet famine conditions then rava-in- the -reat )sian sub#continent! The Communication )ct of 7<L& and its 1J<1 amendment -rant the President certain po*ers in time of 6public peril or disaster!6 The other statutes provide for e"istin- or anticipated emer-encies attributable to earthAua/e, flood, tornado, cyclone, hurricane, confla-ration an landslides!K12JL There is also a 1oint Resolution of )pril 1J39! 't made 6funds available for the control of incipient or emer-ency outbrea/s of insect pests or plant diseases, includin- -rasshoppers, ormon cric/ets, and chinch bu-s! 8?? Stat 31<, 1uly 1, 1J<2, Sec! 2 KaL: ,upra.
12J

National Security may be catalo-ed under the heads of -1. Neutrality, -2. $efense, -3. &ivil $efense, and -(. 4ostilities or Car! 8p! 22: .he $ederal Ci*il "efense )ct of 7<6' contemplated an attac/ or series of
130

attac/s by an enemy of the Enited States *hich conceivably *ould cause substantial dama-e or in,ury to civilian property or persons in the Enited States by any one of several means+ sabota-e, the use of bombs, shellfire, or atomic, radiolo-ical, chemical, bacteriolo-ical means or other *eapons or processes! Such an occurrence *ould cause a 6National %mer-ency for &ivil $efense Purposes,6 or 6a state of civil defense emer-ency,6 durin- the term *hich the &ivil $efense )dministrator *ould have recourse to e"traordinary po*ers outlined in the )ct! The 5ew Fork#5ew @ersey Ci*il "efense Compact supplies an illustration in this conte"t for emer-ency cooperation! 6%mer-ency6 as used in this compact shall mean and include 627a46o2, or other =o4<685 a3<6o2, A64a4<5;, 624@;;53<6o2 or 6CC6252< Aa295; thereof! 8 Id!, p!1<#1?:
131

CruC, Philippine Political 7a*, 1JJ@, p! J<! Record of the &onstitutional &ommission, 2ol! ''', pp! 2??#2?9! Record of the &onstitutional &onvention, pp! ?>@#?>J! @> Phil! 3?@ 81J>J:! 1ren * 9agley, 11@ (r 99, 2>< P 109>, >? )7R 1193! 3>?, 2@2 P 1, 90 )7R 12?1, cert den 2@0 ES ?10,

132

133

13>

13<

4utierreC *. iddle ;io 4rande Conser*ancy "ist., 3> N 9> 7 ed ?<3, <0 S &t 1<@!
13? 139

,anitation "ist. A. Campbell H0yI, 2>J SC 2d 9?9+ ;ochester *. 4utberlett, 211 NO 30J, 10< N% <>@! Hammond Packing Co. *. )rkansas, 212 ES 322, <3 7 ed <30, 2J S &t 390! $e 7eon and $e 7eon 1r!, )dministrative 7a*, Te"t and &ases, 2001 %d!, p! 11<! Ibid.

13@

13J

1>0

'n a 7ecture delivered on arch 12, 2002 as part of the Supreme &ourt &entenary 7ecture Series, 4ans Ioechler, Professor of Philosophy at the Eniversity of 'nnsbruc/ 8)ustria: and President of the 'nternational Pro-ress (r-ani0ation, spea/in- on 6The Enited Nations, The 'nternational Rule of 7a* and Terrorism6 cited in the $issentin- (pinion of 1ustice Iapunan in Lim *. E:ecuti*e ,ecretary, ;!R! No! 1<1>><, )pril 11, 2002, 3@0 S&R) 93J!
1>1 1>2

Section 2, )rticle ''' of the 1J@9 &onstitution! Dernas, .he 7<=8 Constitution of the ;epublic of the Philippines , ) Revie*er#Primer, p! <1! )nne" 6)6 of the emorandum in ;!R! No! 1913J?, pp! 291#293!

1>3

1>>

)n )ct %nsurin- the Free %"ercise by the People of their Ri-ht Peaceably to )ssemble and Petition the ;overnment for (ther Purposes!
1>< 1>?

)nne" 6)6 of the

emorandum in ;!R! No! 1913J?, pp! 291#293!

1>9

Ibid. 2JJ E!S! 3<3, <9 S! &t! 2<<, @1 7! %d! 29@! ;eyes *. 9agatsing, No! 7#?<3??, November J, 1J@3, 12< S&R) <<3! S53<6o2 *. )pplication re-uirements # )ll applications for a permit shall comply *ith the follo*in- -uidelines5 GGGGGG 8c: 'f the mayor is of the vie* that there is imminent and -rave dan-er of a substantive evil *arrantinthe A526a8 or CoA6>63a<6o2 of the permit, he shall immediately inform the applicant *ho must be heard on the matter!

1>@

1>J

1<0

1<1

Petition in ;!R! No! 191>00, p! 11! No! 7#?>1?1, $ecember 2?, 1J@>, 133 S&R) @1?!

1<2

$issentin- (pinion, 1! &ru0, 5ational Press Club *. Commission on Elections , ;!R! Nos! 102?<3, 102J2< T 102J@3, arch <, 1JJ2, 209 S&R) 1!
1<3 1<>

9oyd *. 1nited ,tates, 11? E!S! ?1? 81@@?:! Transcript of Steno-raphic Notes, (ral )r-uments, Ibid., pp! >32#>33! Ibid, pp! <09#<0@. Smith and &otter, Po*ers of the President $urin- &risis, 1J92, p! 1>?! arch 9, 200?, p! >90!

1<<

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)RO (F T4% 2(T'N; 'N T4% PP 1019 $%&'S'(N

Fourteen of the 1< S& ,ustices participated in the decision! Senior )ssociate 1ustice Reynato S! Puno *as on leave! 1ustice )n-elina Sandoval ;utierre03s 9@#pa-e ponencia *as concurred in by 10 1ustices5 &hief 1ustice )rtemio 2! Pan-aniban and 1ustices 7eonardo )! Huisumbin-, &onsuelo Onares Santia-o, )ntonio T! &arpio, a! )licia )ustria# artine0, &onchita &arpio orales, Romeo 1! &alle,o, Sr!, )dolfo S! )0cuna, inita 2! &hico#Na0ario, and &ancio &! ;arcia! Doth the &hief 1ustice and 1ustice Onares#Santia-o *rote separate concurrin- opinions! The &hief 1ustice3s concurrin- opinion *as ,oined by 1ustices &arpio, &arpio orales, and &alle,o, Sr! 1ustice $ante (! Tin-a3s dissentin- opinion *as ,oined by 1ustices Renato &! &orona and Presbitero 1! 2elasco, 1r! EN %ANC G.R. No. 171396 , DAVID 5< a8. . ARRO"O, 5<3., 5< a8. a2A ;58a<5A 3a454 -G.R. No4. 171(09, 171()3, 171()*, 171(00, 171(2( a2A 171()9.

P;oC@89a<5A o21 May 3, 2006 G &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& G CONCURRING OPINION %JI was hoping until the last moment of our deliberations on these consolidated cases that the Court would be unanimous in its "ecision. )fter all, during the last two weeks, it decided with one *oice two e-ually contentious and nationally significant contro*ersies in*ol*ing E:ecuti*e Order 5o. &(&7 and the so#called Calibrated Preempti*e ;esponse policy. % Howe*er, the distinguished r. @ustice "ante O. .inga!s "issenting Opinion has made that hope an impossibility. I now write, not only to e:press my full concurrence in the thorough and elegantly written ponencia of the esteemed me. @ustice )ngelina ,ando*al#4utierreC, but more urgently to e:press a little comment on @ustice .inga!s "issenting Opinion H"OI. .he "issent dismisses all the Petitions, grants no reliefs to petitioners, and finds nothing wrong with PP 7'78. It labels the PP a harmless pronouncement ## +an utter superfluity+ ## and denounces the ponencia as an +immodest show of brawn+ that +has imprudently placed the Court in the business of defanging paper tigers.+ 1nder this line of thinking, it would be perfectly legal for the President to reissue PP 7'78 under its present language and nuance. I respectfully disagree. Let us face it. E*en @ustice .inga concedes that under PP 7'78, the police ## +to some minds+ ## +may ha*e flirted with power.+ Bith due respect, this is a masterful understatement. PP 7'78 may be a paper tiger, but ## to borrow the colorful words of an erstwhile )sian leader ## it has nuclear teeth that must indeed be defanged. ,ome of those who drafted PP 7'78 may be testing the outer limits of presidential prerogati*es and the perse*erance of this Court in safeguarding the people!s constitutionally enshrined liberty. .hey are playing with fire, and unless prudently restrained, they may one day wittingly or unwittingly burn down the country. History will ne*er forget, much less forgi*e, this Court if it allows such misad*enture and refuses to strike down abuse at its inception. Borse, our people will surely condemn the misuse of legal hocus pocus to ?ustify this trifling with constitutional sanctities. )nd e*en for those who deeply care for the President, it is timely and wise for this Court to set down the parameters of power and to make known, politely but firmly, its dogged determination to perform its constitutional duty at all times and against all odds. Perhaps this country would ne*er ha*e had to e:perience the wrenching pain of dictatorship/ and a past President would not ha*e fallen into the precipice of authoritarianism, if the ,upreme Court then had the moral courage to remind him steadfastly of his mortality and the ine*itable historical damnation of despots and tyrants. Let not this Court fall into that same rut. AR.7MI* 8. PA+)A+I#A+ Chief @ustice

"ootnotes

,enate *. Ermita, 4; 5o. 7(<888, )pril %', %''(. 9ayan *. Ermita, 4; 5o. 7(<=L=, )pril %6, %''(.

E5 9)5C 4.;. 5o. 787L<( --- Pro!essor Randol! S. 6a id1 et al.1 Petitioners, ersus )loria Macapagal-Arroyo1 as President and %ommander-in-%$ie!1 et al1 ;espondents. 4.;. 5o. 787&'< --- +ine5 %ac$o-*li ares and .ribune Publis$ing %o.1 Inc.1 Petitioners1 ersus 9onorable Secretary 7duardo 7rmita and 9onorable 6irector )eneral Arturo %. Lomibao1 ;espondents. 4.;. 5o. 787&=6 --- "rancis Josep$ ). 7scudero1 et al. Petitioners1 ersus 7duardo R. 7rmita1 et al.1;espondents. 4.;. 5o. 787&=L --- 4ilusang Mayo :no1 represented by its %$airperson 7lmer %. Labog and Secretary )eneral Joel Maglunsod1 et al.1 Petitioners, ersus 9er 7;cellency President )loria Macapagal Arroyo1 et al.1 ;espondents. 4.;. 5o. 787&'' --- Alternati e Law )roups1 Inc.. (AL)<1 Petitioners, ersus 7;ecuti e Secretary1 7duardo 7rmita1 et al.1 ;espondents. 4.;. 5o. 787&=< = Jose Anselmo I. %adi51 et al.1 Petitioners, ersus 9on. 7;ecuti e Secretary 7duardo 7rmita1 et al.1 ;espondents. 4.;. 5o. 787&%& --- Loren #. Legarda1 Petitioner, ersus President )loria Macapagal-Arroyo1 in $er capacity as President and %ommander-in-%$ie!1 et al.1 ;espondents/ PromulgatedK ay L, %''( : ######################################################################################## : %*+%:RRI+) *PI+I*+ >+AR7S-SA+.IA)*1 J..he only real security for social well#being is the free e:ercise of men!s minds. #Harold @. Laski, Professor of 4o*ernment and H7<7<I. ember of the 9ritish Labor Party, in his book, )uthority in the odern ,tate

.he ideals of liberty and e-uality, the eminent 1.,. ,upreme Court @ustice 9en?amin CardoCo once wrote, are preser*ed against the assaults of opportunism, the e:pediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who ha*e no patience with general principles. 7 In an open and democratic society, freedom of thought and e:pression is the matri:, the indispensable condition, of nearly e*ery other form of freedom. % I share the *iew that Presidential Proclamation 5o. 7'78 HPP 7'78I under which President 4loria acapagal )rroyo declared a

state of national emergency, and 4eneral Order 5o. 6 H4O 5o. 6I, issued by the President pursuant to the same proclamation are both partly unconstitutional. I fully agree with the pronouncement that PP 7'78 is no more than the e:ercise by the President, as the Commander#in#Chief of all armed forces of the Philippines, of her power to call out such armed forces w$ene er it becomes necessary to pre*ent or suppress lawless iolence1 in asion or rebellion . .his is allowed under ,ection 7=, )rticle AII of the Constitution. Howe*er, such +calling out+ power does not authoriCe the President to direct the armed forces or the police to enforce laws not related to lawless *iolence, in*asion or rebellion. .he same does not allow the President to promulgate decrees with the force and effect similar or e-ual to laws as this power is *ested by the Constitution with the legislature. 5either is it a license to conduct searches and seiCures or arrests without warrant e:cept in cases pro*ided in the ;ules of Court. It is not a sanction to impose any form of prior restraint on the freedom of the press or e:pression or to curtail the freedom to peaceably assemble or frustrate fundamental constitutional rights. In the case of 9ayan *. ErmitaL this Court thru @ustice )dolfo ,. )Ccuna emphasiCed that the right to peaceably assemble and petition for redress of grie*ances is, together with freedom of speech, of e:pression, and of the press, a right that en?oys primacy in the realm of constitutional protection. .hese rights constitute the *ery basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. On the other hand, the direct reference to ,ection 78, )rticle MII of the Constitution as the constitutional basis for the declaration of a state of national emergency is misplaced. .his pro*ision can be found under the article on 5ational Economy and Patrimony which presupposes that +national emergency+ is of an economic, and not political, nature. oreo*er, the said pro*ision refers to the temporary takeo*er by the ,tate of any pri*ately#owned public utility or business affected with public interest in times of national emergency. In such a case, the takeo*er is authoriCed when the public interest so re-uires and sub?ect to +reasonable terms+ which the ,tate may prescribe. .he use of the word +,tate+ as well as the reference to +reasonable terms+ under ,ection 78, )rticle MII can only pertain to Congress. In other words, the said pro*ision is not self#e:ecuting as to be *alidly in*oked by the President without congressional authoriCation. .he pro*ision merely declares a state economic policy during times of national emergency. )s such, it cannot be taken to mean as authoriCing the President to e:ercise +takeo*er+ powers pursuant to a declaration of a state of national emergency. .he President, with all the powers *ested in her by )rticle AII, cannot arrogate unto herself the power to take o*er or direct the operation of any pri*ately owned public utility or business affected with public interest without Congressional authoriCation. .o do so would constitute an ultra *ires act on the part of the Chief E:ecuti*e, whose powers are limited to the powers *ested in her by )rticle AII, and cannot e:tend to )rticle MII without the appro*al of Congress. .hus, the President!s authority to act in times of national emergency is still sub?ect to the limitations e:pressly prescribed by Congress. .his is a featured component of the doctrine of separation of powers, specifically, the principle of checks and balances as applicable to the political branches of go*ernment, the e:ecuti*e and the legislature. Bith regard to 4O 5o. 6, I agree that it is unconstitutional insofar as it mandates the armed forces and the national police +to pre*ent and suppress acts of terrorism and lawless *iolence in the country.+ .here is presently no law enacted by Congress that defines terrorism, or classifies what acts are punishable as acts of terrorism. .he notion of terrorism, as well as acts constituti*e thereof, is at best fraught with ambiguity. It is therefore sub?ect to different interpretations by the law enforcement agencies. )s can be gleaned from the facts, the lack of a clear definition of what constitutes +terrorism+ ha*e led the law enforcement officers to necessarily guess at its meaning and differ as to its application gi*ing rise to unrestrained *iolations of the fundamental guarantees of freedom of peaceable assembly and freedom of the press.

In 0olender *. Lawson,& the 1nited ,tates ,upreme Court nullified a state statute re-uiring persons who loitered or wandered on streets to pro*ide +credible and reliable+ identification and to account for their presence when re-uested to do so by a police officer. Briting for the ma?ority, @ustice ,andra "ay O!Connor noted that the most important aspect of *agueness doctrine was the imposition of guidelines that prohibited arbitrary, selecti*e enforcement on constitutionally suspect basis by police officers. .his rationale for in*ocation of that doctrine was of special concern in this case because of the potential for arbitrary suppression of the fundamental liberties concerning freedom of speech and e:pression, as well as restriction on the freedom of mo*ement. .hus, while I recogniCe that the President may declare a state of national emergency as a statement of a factual conditionpursuant to our ruling in ,anlakas *. E:ecuti*e ,ecretary,6 I wish to emphasiCe that the same does not grant her any additional powers. Conse-uently, while PP 7'78 is *alid as a declaration of a factual condition, the pro*isions which purport to *est in the President additional powers not theretofore *ested in her must be struck down. .he pro*ision under 4O 5o. 6 ordering the armed forces to carry out measures to pre*ent or suppress +acts of terrorism+ must be declared unconstitutional as well. $inally, it cannot be gainsaid that go*ernment action to stifle constitutional liberties guaranteed under the 9ill of ;ights cannot be preempti*e in meeting any and all percei*ed or potential threats to the life of the nation. ,uch threats must be actual, or at least gra*ely imminent, to warrant go*ernment to take proper action. .o allow go*ernment to preempt the happening of any e*ent would be akin to +putting the cart before the horse,+ in a manner of speaking. ,tate action is proper only if there is a clear and present danger of a substanti*e e*il which the state has a right to pre*ent. Be should bear in mind that in a democracy, constitutional liberties must always be accorded supreme importance in the conduct of daily life. )t the heart of these liberties lies freedom of speech and thought 3 not merely in the propagation of ideas we lo*e, but more importantly, in the ad*ocacy of ideas we may oftentimes loathe. )s succinctly articulated by @ustice Louis ". 9randeisK $ear of serious in?ury cannot alone ?ustify suppression of free speech and assembly. : : : It is the function of speech to free men from the bondage of irrational fears. .o ?ustify suppression of free speech there must be reasonable ground to belie*e that the danger apprehended is imminent. .here must be reasonable ground to belie*e that the e*il to be pre*ented is a serious one. : : : 9ut e*en ad*ocacy of *iolation, howe*er reprehensible morally, is not a ?ustification for denying free speech where the ad*ocacy falls short of incitement and there is nothing to indicate that the ad*ocacy would be immediately acted on. .he wide difference between ad*ocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious *iolence was to be e:pected or was ad*ocated, or that the past conduct furnished reason to belie*e that such ad*ocacy was then contemplated.( I+ 8I7? *" .97 "*R7)*I+), I *ote to PAR.L> )RA+. the petitions. %*+S:7L* >+AR7S-SA+.IA)* )ssociate @ustice

"ootnotes
7

CardoCo, 9. 5ature of @udicial Process, 7<%7. Palko *. ,tate of Connecticut, L'% 1.,. L7< H7<L8I. 4.;. 5os. 7(<=L=, 7(<=&=, 7(<==7, )pril %6, %''(. &(7 1.,. L6% H7<=LI.

&

4.;. 5os. 76<'=6, 76<7'L, 76<7=6 J 76<7<(, $ebruary L, %''&, &%7 ,C;) (6(. 9randeis, @. , ?oined by Holmes, @., concurring in Bhitney *. California, %8& 1.,. L68 H7<%8I.

).R. +o. &(&@AB HProf. ;andolf ,. "a*id, LorenCo .aEada III, ;onald Llamas, H. Harry L. ;o-ue, @r., @oel ;uiC 9utuyan, ;oger ;. ;ayel, 4ary ,. allari, ;omel ;egalado 9agares, Christopher $.C. 9olastig, petitioners, *. 4loria acapagal#)rroyo, as President and Commander#in#Chief, E:ecuti*e ,ecretary Eduardo Ermita, Hon. )*elino CruC II, ,ecretary of 5ational "efense, 4eneral 4eneroso ,enga, Chief of ,taff, )rmed $orces of the Philippines, "irector 4eneral )rturo Lomibao, Chief, Philippine 5ational Police, respondents.I ).R. +o. &(&C'A H5iEeC Cacho#Oli*ares and .ribune Publishing Co., Inc., petitioner, *. Honorable ,ecretary Eduardo Ermita and Honorable "irector 4eneral )rturo Lomibao, respondents.I ).R. +o. &(&CD, H$rancis @oseph 4. Escudero, @oseph ). ,antiago, .eodoro ). Casino, )gapito ). )-uino, ario 4. )gu?a, ,atur C. Ocampo, u?i* ,. Hataman, @uan Edgardo )ngara, .eofisto "L. 4uingona III, Emmanuel @osel @. Aillanue*a, LiCa L. aCa, Imee ;. arcos, ;enato 9. agtubo, @ustin arc ,9. Chipeco, ;oilo 4oleC, "arlene )ntonio#Custudio, Loretta )nn P. ;osales, @osel 4. Airador, ;afael A. ariano, 4ilbert C. ;emulla, $lorencio 4. 5oel, )na .heresa Honti*eros#9ara-uel, Imelda C. 5icolas, ar*ic .A.$. Leonenen, 5eri @a*ier Colmenares, o*ement of Concerned CitiCens for Ci*il Liberties, represented by )mado 4at Inciong, petitioners, *. Eduardo ;. Ermita, E:ecuti*e ,ecretary, )*elino @. CruC, @r., ,ecretary, "5" ;onaldo A. Puno, ,ecretary, "IL4, 4eneroso ,enga, )$P Chief of ,taff, )rturo Lumibao, Chief P5P, respondents.I ).R. +o. &(&CD@ H0ilusang ayo 1no, represented by its Chairperson Elmer C. Labog and ,ecretary 4eneral @oel aglunsod, 5ational $ederation of Labor 1nions#0ilusang ayo 1no H5)$L1#0 1I, represented by its 5ational President, @oselito *. 1stareC, )ntonio C. Pascual, ,al*ador t. CarranCa, Emilia P. "apulang, artin Custodio, @r., and ;o-ue . .an, petitioners, *. Her E:cellency, President 4loria acapagal#)rroyo, .he Honorable E:ecuti*e ,ecretary, Eduardo Ermita, .he Chief of ,taff, )rmed $orces of the Philippines, 4eneroso ,enga, and the P5P "irector 4eneral, )rturo Lomibao, respondents.I ).R. +o. &(&C'' H)lternati*e Law 4roups, Inc. *. H)L4I, petitioner, *. E:ecuti*e ,ecretary Eduardo L. Ermita. Lt. 4en. 4eneroso ,enga, and "irector 4eneral )rturo Lomibao, respondents.I ).R. +o. &(&CDA H@ose )nselmo I. CadiC, $eliciano . 9autista, ;omulo ;. ;i*era, @ose )mor . )morado, )licia ). ;isos# Aidal, $elimon C. )belita III, anuel P. Legaspi, @.9., @o*y C. 9ernabe, 9ernard L. "agcuta, ;ogelio A. 4arcia and Integrated 9ar of the Philippines HI9PI, petitioners, *. Hon. E:ecuti*e ,ecretary Eduardo Ermita, 4eneral 4eneroso ,enga, in his capacity as )$P Chief of ,taff, and "irecotr 4eneral )rturo Lomibao, in his capacity as P5P Chief, respondents.I ).R. +o. &(&C2C HLoren 9. Legarda, petitioner, *. 4loria acapagal#)rroyo, in her capacity as President and Commander#in# Chief/ )rturo Lomibao, in his capacity as "irector#4eneral of the Philippine 5ational Police HP5PI/ 4eneroso ,enga, in his capacity as Chief of ,taff of the )rmed $orces of the Philippine H)$PI/ and Eduardo Ermita, in his capacity as E:ecuti*e ,ecretary, respondents.I :# # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # #: 6ISS7+.I+) *PI+I*+ .I+)A1 JI regret to say that the ma?ority, by its ruling today, has imprudently placed the Court in the business of defanging paper tigers. .he immodest show of brawn unfortunately comes at the e:pense of an e:hibition by the Court of a fundamental but sophisticated understanding of the e:tent and limits of e:ecuti*e powers and prerogati*es, as well as those assigned to the

?udicial branch. I agree with the ma?ority on some points, but I cannot ?oin the ma?ority opinion, as it proceeds to rule on non# ?usticiable issues based on fears that ha*e not materialiCed, departing as they do from the plain language of the challenged issuances to the e:tent of second#guessing the Chief E:ecuti*e. I respectfully dissent. .he key perspecti*e from which I *iew these present petitions is my own ponencia in ,anlakas *. E:ecuti*e ,ecretary,7 which centered on Presidential Proclamation 5o. &%8 HPP &%8I, declaring a +state of rebellion+ in %''L. .he Court therein concluded that while the declaration was constitutional, such declaration should be regarded as both regarded as +an utter superfluity+, which +only gi*es notice to the nation that such a state e:ists and that the armed forces may be called to pre*ent or suppress it+, and +de*oid of any legal significance+, and +cannot diminish or *iolate constitutionally protected rights.+ I submit that the same conclusions should be reached as to Proclamation 5o. 7'78 HPP 7'78I. $ollowing the cardinal precept that the acts of the e:ecuti*e are presumed constitutional is the e-ually important doctrine that to warrant unconstitutionality, there must be a clear and une-ui*ocal breach of the Constitution, not a doubtful and argumentati*e implication. % )lso well#settled as a rule of construction is that where thee are two possible constructions of law or e:ecuti*e issuance one of which is in harmony with the Constitution, that construction should be preferred. L .he concerns raised by the ma?ority relating to PP 7'78 and 4eneral Order 5os. 6 can be easily dis-uieted by applying this well#settled principle. I. PP 7'78Has 5o Legal 9inding Effect/ Creates 5o ;ights and Obligations/ and Cannot 9e Enforced or In*oked in a CourtN Of Law $irst, the fundamentals. .he President is the Chief of ,tate and $oreign ;elations, the chief of the E:ecuti*e 9ranch, & and the Commander#in#Chief of the )rmed $orces.6 .he Constitution *ests on the President the e:ecuti*e power. ( .he President deri*es these constitutional mandates from direct election from the people. .he President stands as the most recogniCable representati*e symbol of go*ernment and of the Philippine state, to the e:tent that foreign leaders who speak with the President do so with the understanding that they are speaking to the Philippine state. Fet no matter the powers and prestige of the presidency, there are significant limitations to the office of the President. .he President does not ha*e the power to make or legislate laws, 8 or disobey those laws passed by Congress.= 5either does the President ha*e to power to create rights and obligations with binding legal effect on the $ilipino citiCens, e:cept in the conte:t of entering into contractual or treaty obligations by *irtue of his>her position as the head of ,tate. .he Constitution likewise imposes limitations on certain powers of the President that are normally inherent in the office. $or e:ample, e*en though the President is the administrati*e head of the E:ecuti*e "epartment and maintains e:ecuti*e control thereof, < the President is precluded from arbitrarily terminating the *ast ma?ority of employees in the ci*il ser*ice whose right to security of tenure is guaranteed by the Constitution.7' .he President has inherent powers,77 powers e:pressly *ested by the Constitution, and powers e:pressly conferred by statutes. .he power of the President to make proclamations, while confirmed by statutory grant, is nonetheless rooted in an inherent power of the presidency and not e:pressly sub?ected to constitutional limitations. 9ut proclamations, as they are, are a species of issuances of e:tremely limited efficacy. )s defined in the )dministrati*e Code, proclamations are merely +acts of the President fi:ing a date or declaring a status or condition of public moment or interest upon the e:istence of which the operation of a specific law or regulation is made to depend+. 7% ) proclamation, on its own, cannot create or suspend any constitutional or statutory rights or obligations. .here would be need of a complementing law or regulation referred to in the proclamation should such act indeed put into operation any law or regulation by fi:ing a date or declaring a status or condition of a public moment or interest related to such law or regulation. )nd should the proclamation allow the operationaliCation of such law or regulation, all subse-uent resultant acts cannot e:ceed or supersede the law or regulation that was put into effect. 1nder ,ection 7=, )rticle AII of the Constitution, among the constitutional powers of the President, as Commander#in#Chief, is to +call out such armed forces to pre*ent or suppress lawless *iolence, in*asion or rebellion+. 7L .he e:istence of in*asion or rebellion could allow the President to either suspend the pri*ilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law, but there is a fairly elaborate constitutional procedure to be obser*ed in such a case, including

congressional affirmation or re*ocation of such suspension or declaration, as well as the a*ailability of ?udicial re*iew. Howe*er, the e:istence of lawless *iolence, in*asion or rebellion does not ipso facto cause the +calling out+ of the armed forces, the suspension of habeas corpus or the declaration of martial law O it remains within the discretion of the President to engage in any of these three acts should said conditions arise. ,anlakas in*ol*ed PP &%8, which declared the e:istence of a +state of rebellion.+ ,uch declaration could ostensibly predicate the suspension of the pri*ilege of the writ of habeas corpus or the declaration of martial law, but the President did not do so. Instead, PP &%8, and the accompanying 4eneral Order 5o. &, in*oked the +calling out+ of the )rmed $orces to pre*ent lawless *iolence, in*asion and rebellion. )ppreciably, a state of lawless *iolence, in*asion or rebellion could be *ariable in scope, magnitude and gra*ity/ and ,ection 7=, )rticle AII allows for the President to respond with the appropriate measured and proportional response. Indeed, the diminution of any constitutional rights through the suspension of the pri*ilege of the writ or the declaration of martial law is deemed as +strong medicine+ to be used sparingly and only as a last resort, and for as long as only truly necessary. .hus, the mere in*ocation of the +calling out+ power stands as a balanced means of enabling a heightened alertness in dealing with the armed threat, but without ha*ing to suspend any constitutional or statutory rights or cause the creation of any new obligations. $or the utiliCation of the +calling out+ power alone cannot *est unto the President any new constitutional or statutory powers, such as the enactment of new laws. )t most, it can only renew emphasis on the duty of the President to e:ecute already e:isting laws without e:tending a corresponding mandate to proceed e:tra#constitutionally or e:tra#legally. Indeed, the +calling out+ power does not authoriCe the President or the members of the )rmed $orces to break the law. .hese were the premises that ultimately informed the Court!s decision in ,anlakas, which affirmed the declaration of a +state of rebellion+ as within the +calling out+ power of the President, but which emphasiCed that for legal intents and purposes, it should be both regarded as +an utter superfluity+, which +only gi*es notice to the nation that such a state e:ists and that the armed forces may be called to pre*ent or suppress it,+ and +de*oid of any legal significance,+ as it could not +cannot diminish or *iolate constitutionally protected rights.+ .he same premises apply as to PP 7'78. ) comparati*e analysis of PP &%8 and PP 7'78, particularly their operati*e clauses, is in order. PP &%8 PP 7'78

N(C, T4%R%F(R%, ', ;7(R') )&)P);)7# )RR(O(, by virtue of the po*ers vested in me by la*, hereby confirm the e"istence of an actual and on#-oinrebellion, compellin- me to declare a state of rebellion! 'n vie* of the fore-oin-, ' am issuin- ;eneral (rder No! > in accordance *ith Section 1@, )rticle 2'' of the &onstitution, callin- out the )rmed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary actions and measures to suppress and Auell the rebellion *ith due re-ard to constitutional ri-hts!

N(C, T4%R%F(R%, ' ;loria acapa-al#)rroyo, President of the Republic of the Philippines and &ommander#in#&hief of the )rmed Forces of the Philippines, by virtue of the po*ers vested upon me by Section 1@, )rticle 9 of the Philippine &onstitution *hich states that5 6The President! ! ! *henever it becomes necessary, ! ! ! may call out 8the: armed forces to prevent or suppress! ! ! rebellion! ! !,6 and in my capacity as their &ommander#in#&hief, do hereby command the )rmed Forces of the Philippines, to maintain la* and order throu-hout the Philippines, prevent or suppress all forms of la*less violence as *ell any act of insurrection or rebellion and to enforce obedience to all the la*s and to all decrees, orders and re-ulations promul-ated by me personally or upon my direction+ and as provided in Section 19, )rticle 12 of the &onstitution do hereby declare a State of National %mer-ency!

Let us begin with the similarities. 9oth PP &%8 and PP 7'78 are characteriCed by two distinct phases. .he first is the declaration itself of a status or condition, a +state of rebellion+ in PP &L8, and a +state of national emergency+ under PP 7'78. 9oth +state of rebellion+ and +state of national emergency+ are terms within constitutional contemplation. 1nder ,ection 7=, )rticle AII, the e:istence of a +state of rebellion+ is sufficient premise for either the suspension of the pri*ilege of the writ of habeas corpus or the declaration of martial law, though in accordance with the strict guidelines under the same pro*ision. 1nder ,ection 78, )rticle MII, the e:istence of a state of national emergency is sufficient ground for the ,tate, during the emergency, under reasonable terms prescribed by it, and when the public interest so re-uires, to temporarily take o*er or direct the operation of any pri*ately#owned public utility or business affected with public interest. 1nder ,ection %LH%I, )rticle AI, the e:istence of a state of national emergency may also allow Congress to authoriCe the President, for a limited period and sub?ect to such restrictions as it may prescribe, to e:ercise powers necessary and proper to carry out a declared national policy. Certainly, the declaration could stand as the first step towards constitutional authoriCation for the e:ercise by the President, the Congress or the ,tate of e:traordinary powers and prerogati*es. Howe*er, the declaration alone cannot put into operation these e:traordinary powers and prerogati*es, as the declaration must be followed through with a separate act pro*iding for the actual utiliCation of such powers. In the case of the +state of rebellion,+ such act in*ol*es the suspension of the writ or declaration of martial law. In the case of the +state of national emergency,+ such act in*ol*es either an order for the takeo*er or actual takeo*er by the ,tate of public utilities or businesses imbued with public interest or the authoriCation by Congress for the President to e:ercise emergency powers. In PP &%8, the declaration of a +state of rebellion+ did not lead to the suspension of the writ or the declaration of martial law. In PP 7'78, the declaration of a +state of national emergency+ did not lead to an authoriCation for the takeo*er or actual takeo*er of any utility or business, or the grant by Congress to the President of emergency powers. Instead, both declarations led to the in*ocation of the calling out power of the President under ,ection 7=, )rticle AII, which the ma?ority correctly characteriCes as in*ol*ing only +ordinary police action.+ I agree with the ponencia!s holding that PP 7'78 in*ol*es the e:ercise by the President of the +calling out+ power under ,ection 7=, )rticle AII. In Integrated 9ar *. Damora,7& the Court was beseeched upon to re*iew an order of President Estrada commanding the deployment of the arines in patrols around etro anila, in *iew of an increase in crime. 76 .he Court, speaking through @ustice ,antiago 0apunan, affirmed the President!s order, asserting that +it is the unclouded intent of the Constitution to *est upon the President, as Commander#in#Chief of the )rmed $orces, full discretion to call forth the military when in his ?udgment it is necessary to do so in order to pre*ent or suppress lawless *iolence, in*asion or rebellion. 1nless the petitioner can show that the e:ercise of such discretion was gra*ely abused, the President!s e:ercise of ?udgment deser*es to be accorded respect from this Court.+7( .ellingly, the order of deployment by President Estrada was affirmed by the Court e*en though we held the *iew that the power then in*ol*ed was not the +calling out+ power, but +the power in*ol*ed may be no more than the maintenance of peace and order and promotion of the general welfare.+ 78 It was also maintained in Integrated 9ar that while ,ection 7=, )rticle AII mandated two conditions O actual rebellion or in*asion and the re-uirement of public safety O before the suspension of the pri*ilege of the writ ofhabeas corpus or the declaration of martial law could be declared, +these conditions are not re-uired in the case of the power to call out the armed forces. .he only criterion is that 2whene*er it becomes necessary!, the President may call the armed forces 2to suppress lawless *iolence, in*asion or rebellion.+7= .he Court concluded that the implication was +that the President is gi*en full discretion and wide latitude in the e:ercise of the power to call as compared to the two other powers.+ 7< .hese propositions were affirmed in ,anlakas, wherein the in*ocation of the calling out power was e:pressly made by President )rroyo. .he Court noted that for the purpose of e:ercising the calling out power, the Constitution did not re-uire the President to make a declaration of a state of rebellion.%' )t the same time, the Court in ,anlakas acknowledged that +the President!s authority to declare a state of rebellion springs in the main from her powers as chief e:ecuti*e and1 at t$e same time1 draws strengt$ !rom $er %ommander-in-%$ie! powers.+%7 $or still unclear reasons, the ma?ority attempts to draw a distinction between ,anlakas and the present petitions by that the statutory authority to declare a +state of rebellion+ emanates from the )dministrati*e Code of 7<=8, particularly the pro*ision

authoriCing the President to make proclamations. )s such, the declaration of a +state of rebellion,+ pursuant to statutory authority, +was merely an act declaring a status or condition of public moment or interest.+ .he ma?ority grossly misreads ,anlakas, which e:pressly roots the declaration of a state of rebellion from the wedded powers of the Chief E:ecuti*e, under ,ection 7, )rticle AII, and as Commander#in#Chief, under ,ection 7=, )rticle AII. Insofar as PP 7'78 is concerned, the calling out power is definitely in*ol*ed, in *iew of the directi*e to the )rmed $orces of the Philippines to +suppress all forms of lawless *iolence+. 9ut there are nuances to the calling out power in*oked in PP 7'78 which the ma?ority does not discuss. .he directi*e +to suppress all forms of lawless *iolence+ is addressed not only to the )rmed $orces but to the police as well. .he +calling out+ of the police does not deri*e from ,ection 78, )rticle AII, or the commander#in# chief clause, our national police being ci*ilian in character. Instead, the calling out of the police is sourced from the power of the President as Chief E:ecuti*e under ,ection 7, )rticle AII, and the power of e:ecuti*e control under ,ection 7=, )rticle AII. oreo*er, while the permissible scope of military action is limited to acts in furtherance of suppressing lawless *iolence, rebellion, in*asion, the police can be commanded by the President to e:ecute all laws without distinction in light of the presidential duty to e:ecute all laws.%% ,till, insofar as ,ection 78, )rticle AII is concerned, wide latitude is accorded to the discretion of the Chief E:ecuti*e in the e:ercise of the +calling out+ power due to a recognition that the said power is of limited import, directed only to the )rmed $orces of the Philippines, and incapable of imposing any binding legal effect on the citiCens and other branches of the Philippines. Indeed, PP 7'78 does not purport otherwise. 5othing in its operati*e pro*isions authoriCe the President, the )rmed $orces of the Philippines, or any officer of the law, to perform any e:tra#constitutional or e:tra#legal acts. PP 7'78 does not dictate the suspension of any of the people!s guarantees under the 9ill of ;ights. I! it cannot be made more clear1 neit$er t$e declaration o! a state o! emergency under PP &'&( nor t$e in ocation o! t$e calling out power t$erein aut$ori5es warrantless arrests1 searc$es or sei5ures2 t$e in!ringement o! t$e rig$t to !ree e;pression1 peaceable assembly and association and ot$er constitutional or statutory rig$ts. Any public o!!icer w$o nonet$eless engaged or is engaging in suc$ e;tra-constitutional or e;tra-legal acts in t$e name o! PP &'&( may be subEected to t$e appropriate ci il1 criminal or administrati e liability . .o pro*e this point, let us now compare PP 7'78 with a different presidential issuance, one that was intended to diminish constitutional and ci*il rights of the people. .he said issuance, Presidential Proclamation 5o. 7'=7, was issued by President arcos in 7<8% as the instrument of declaring martial law. .he operati*e pro*isions readK P". 7'=7 PP 7'78

No*, thereof, ', Ferdinand %! arcos, President (f the Philippines, by virtue of the po*ers vested upon me by article 2'', Section 10, Para-raph 82: of the &onstitution, do hereby place the entire Philippines as defined in the article ', Section 1, of the &onstitution under martial la*, and in my capacity as their commander#in#chief, do hereby command the arned forces of the Philippines, to maintain la* and order throu-hout the Philippines, prevent or suppress all forms of la*less violence as *ell as any act of insurrection or rebellion and to enforce obedience to all the la*s and decrees, orders and re-ulations promul-ated by me personally or upon my direction! 'n addition, ' do hereby order that all persons presently

N(C, T4%R%F(R%, ' ;loria acapa-al#)rroyo, President of the Republic of the Philippines and &ommander#in#&hief of the )rmed Forces of the Philippines, by virtue of the po*ers vested upon me by Section 1@, )rticle 9 of the Philippine &onstitution *hich states that5 6The President! ! ! *henever it becomes necessary, ! ! ! may call out 8the: armed forces to prevent or suppress! ! ! rebellion! ! !,6 and in my capacity as their &ommander#in#&hief, do hereby command the )rmed Forces of the Philippines, to maintain la* and order throu-hout the Philippines, prevent or suppress all forms of la*less violence as *ell any act of insurrection or rebellion and to enforce obedience to all the la*s and to all decrees, orders and re-ulations promul-ated by me

detained, as *ell as others *ho may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection there*ith, for crimes a-ainst national security and the la* of nations, crimes, a-ainst the fundamental la*s of the state, crimes a-ainst public order, crimes involvinusurpation of authority, ran/, title and improper use of names, uniforms and insi-nia, crimes committed by public officers, and for such other crimes as *ill be enumerated in (rders that ' shall subseAuently promul-ate, as *ell as crimes as a conseAuence of any violation of any decree, order or re-ulation promul-ated by me personally or promul-ated upon my direction shall be /ept under detention until other*ise ordered released by me or by my duly desi-nated representative! 8emphasis supplied:

personally or upon my direction+ and as provided in Section 19, )rticle 12 of the &onstitution do hereby declare a State of National %mer-ency!

Let us e:amine the differences between PP 5o. 7'=7 and PP 7'78. $irst, while PP 7'78 merely declared the e:istence of a state of rebellion, an act ultimately obser*ational in character, PP 7'=7 +placed the entire Philippines under martial law,+ an acti*e implement%L that, by itself, substituted ci*ilian go*ernmental authority with military authority. 1nlike in the 7<=( Constitution, which was appropriately crafted with an a*ersion to the e:cesses of arcosian martial rule, the 7<L6 Constitution under which PP 7'=7 was issued left no inter*ening safeguards that tempered or limited the declaration of martial law. E*en the contrast in the *erbs used, +place+ as opposed to +declare,+ betrays some significance. .o declare may be simply to acknowledge the e:istence of a particular condition, while to place ineluctably goes beyond mere acknowledgement, and signifies the imposition of the actual condition e*en if it did not e:ist before. 9oth PP 7'=7 and PP 7'78 e:pressly in*oke the calling out power. Howe*er, the conte:ts of such power are wildly distaff in light of PP 7'=7!s accompanying declaration of martial law. ,ince martial law in*ol*es the substitution of the military in the ci*ilian functions of go*ernment, the calling out power in*ol*ed in PP 7'=7 is significantly greater than the one in*ol*ed in PP 7'78, which could only contemplate the enforcement of e:isting laws in relation to the suppression of lawless *iolence, rebellion or in*asion and the maintenance of general peace and order. $urther proof that PP 7'=7 intended a wholesale suspension of ci*il liberties in the manner that PP 7'78 does not e*en ponder upon is the subse-uent paragraph cited, which authoriCes the detention and continued detention of persons for a plethora of crimes not only directly related to the rebellion or lawless *iolence, but of broader range such as those +against national security,+ or +public order.+ .he order of detention under PP 7'=7 arguably includes e*ery crime in the statute book. )nd most alarmingly, any person detained by *irtue of PP 7'=7 could remain in perpetual detention unless otherwise released upon order of President arcos or his duly authoriCed representati*e. )nother worthy point of contrast concerns how the ,upreme Court, during the martial law era, dealt with the challenges raised before it to martial law rule and its effects on ci*il liberties. Bhile martial law stood as a *alid presidential prerogati*e under the 7<L6 Constitution, a ruling committed to safeguard ci*il rights and liberties could ha*e stood ground against e*en the most fundamental of human rights abuses ostensibly protected under the 7<L6 and 7<8L constitutions and under international declarations and con*entions. Fet a perusal of )-uino *. Enrile, %& the case that decisi*ely affirmed the *alidity of martial law rule, shows that most of the @ustices then sitting e:hibited diffidence guised though as deference towards the declaration of martial law. 5ote these few e:cerpts from the se*eral opinions submitted in that case which stand as typical for those timesK .he present state of martial law in the Philippines is peculiarly $ilipino and fits into no traditional patterns or ?udicial precedents. ::: In the first place I am con*inced Has are the other @usticesI, without need of recei*ing e*idence as in an ordinary ad*ersary court proceeding, that a state of rebellion e:isted in the country when Proclamation 5o. 7'=7 was issued. It was a matter of

contemporary history within the cogniCance not only of the courts but of all obser*ant people residing here at that time. ::: .he state of rebellion continues up to the present. .he argument that while armed hostilities go on in se*eral pro*inces in indanao there are none in other regions e:cept in isolated pockets in LuCon, and that therefore there is no need to maintain martial law all o*er the country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between organiCed and identifiable groups on fields of their own choosing. It includes sub*ersion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. 1nderground propaganda, through printed newssheets or rumors disseminated in whispers/ recruiting of armed and ideological adherents, raising of funds, procurement of arms and materiel, fifth#column acti*ities including sabotage and intelligence O all these are part of the rebellion which by their nature are usually conducted far from the battle fronts. .hey cannot be counteracted effecti*ely unless recogniCed and dealt with in that conte:t.%6 ::: P.Qhe fact that courts are open cannot be accepted as proof that the rebellion and insurrection, which compellingly called for the declaration of martial law, no longer imperil the public safety. 5or are the many surface indicia ad*erted to by the petitioners Hthe increase in the number of tourists, the choice of anila as the site of international conferences and of an international beauty contestI to be regarded as e*idence that the threat to public safety has abated. .here is actual armed combat, attended by the somber panoply of war, raging in ,ulu and Cotabato, not to mention the 9icol region and Cagayan Aalley. I am hard put to say, therefore, that the 4o*ernment!s claim is baseless. I am not insensiti*e to the plea made here in the name of indi*idual liberty. 9ut to paraphrase E: parte oyer, if it were the liberty alone of the petitioner "iokno that is in issue we would probably resol*e the doubt in his fa*or and grant his application. 9ut the ,olicitor 4eneral, who must be deemed to represent the President and the E:ecuti*e "epartment in this case, has manifested that in the President!s ?udgment peace and tran-uility cannot be speedily restored in the country unless the petitioners and others like them meantime remain in military custody. $or, indeed, the central matter in*ol*ed is not merely the liberty of isolated indi*iduals, but the collecti*e peace, tran-uility and security of the entire nation. %( ::: It may be that the e:istence or non#e:istence or imminence of a rebellion of the magnitude that would ?ustify the imposition of martial law is an ob?ecti*e fact capable of ?udicial notice, for a rebellion that is not of general knowledge to the public cannot concei*ably be dangerous to public safety. 9ut precisely because it is capable of ?udicial notice, no in-uiry is needed to determine the propriety of the E:ecuti*e!s action. )gain, while the e:istence of a rebellion may be widely known, its real e:tent and the dangers it may actually pose to the public safety are not always easily perceptible to the unpracticed eye. In the present day practices of rebellion, its inseparable sub*ersion aspect has pro*en to be more effecti*e and important than +the rising Hof personsI publicly and taking arms against the 4o*ernment+ by which the ;e*ised Penal Code characteriCes rebellion as a crime under its sanction. ,ub*ersion is such a co*ert kind of anti#go*ernment acti*ity that it is *ery difficult e*en for army intelligence to determine its e:act area of influence and effect, not ot mention the details of its forces and resources. 9y sub*ersion, the rebels can e:tend their field of action unnoticed e*en up to the highest le*els of the go*ernment, where no one can always be certain of the political comple:ion of the man ne:t to him, and this does not e:clude the courts. )rms, ammunition and all kinds of war e-uipment tra*el and are transferred in deep secrecy to strategic locations, which can be one!s neighborhood without him ha*ing any idea of what is going on. .here are so many insidious ways in which sub*ersi*es act, in fact too many to enumerate, but the point that immediately suggests itself is that they are mostly incapable of being pro*en in court, so how are Be to make a ?udicial in-uiry about them that can satisfy our ?udicial conscience. .he Constitution definitely commits it to the E:ecuti*e to determine the factual bases and to forthwith act as promptly as possible to meet the emergencies of rebellion and in*asion which may be crucial to the life of the nation. He must do this with unwa*ering con*iction, or any hesitancy or indecision on his part will surely detract from the needed precision in his choice of the means he would employ to repel the aggression. .he apprehension that his decision might be held by the ,upreme Court to be a

transgression of the fundamental law he has sworn to 2defend and preser*e! would deter him from acting when precisely it is most urgent and critical that he should act, since the enemy is about to strike the mortal blow. %8 ::: .o start with, Congress was not unaware of the worsening conditions of peace and order and of, at least, e*ident insurgency, what with the numerous easily *erifiable reports of open rebellious acti*ities in different parts of the country and the series of rallies and demonstrations, often bloody, in anila itself and other centers of population, including those that reached not only the portals but e*en the session hall of the legislature, but the legislators seemed not to be sufficiently alarmed or they either were indifferent or did not know what to do under the circumstances. Instead of taking immediate measures to alle*iate the conditions denounced and decried by the rebels and the acti*ists, they debated and argued long on palliati*es without coming out with anything substantial much less satisfactory in the eyes of those who were seditiously shouting for reforms. In any e*ent, in the face of the inability of Congress to meet the situation, and prompted by his appraisal of a critical situation that urgently called for immediate action, the only alternati*e open to the President was to resort to the other constitutional source of e:traordinary powers, the Constitution itself.%= ::: Proclamation 7'=7 is in no sense any more constitutionally offensi*e. In fact, in ordering detention of persons, the Proclamation pointedly limits arrests and detention only to those +presently detained, as well as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offences committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes, against the fundamental laws of the state, crimes against public order, crimes in*ol*ing usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in Orders that I shall subse-uently promulgate, as well as crimes as a conse-uence of any *iolation of any decree, order or regulation promulgated by me personally or promulgated upon my direction.+ Indeed, e*en in the affected areas, the Constitution has not been really suspended much less discarded. )s contemplated in the fundamental law itself, it is merely in a state of anaesthesia, to the end that the much needed ma?or surgery to sa*e the nation!s life may be successfully undertaken. %< ::: .he -uoted lines of reasoning can no longer be sustained, on many le*els, in these more enlightened times. $or one, as a direct reaction to the philosophy of ?udicial inhibition so fre-uently e:hibited during the arcos dictatorship, our present Constitution has e:plicitly mandated ?udicial re*iew of the acts of go*ernment as part of the ?udicial function. )s if to rebuff )-uino, the 7<=8 Constitution e:pressly allows the ,upreme Court to re*iew the sufficiency of the factual basis of the proclamation of martial law and decide the same within L' days from the filing of the appropriate case. L' .he Constitution also emphasiCes that a state of martial law did not suspend the operation of the Constitution or supplant the functioning of the ?udicial and legislati*e branches.L7 .he e:pediency of hiding behind the political -uestion doctrine can no longer be resorted to. $or another, the renewed emphasis within domestic and international society on the rights of people, as can be seen in worldwide democratic mo*ements beginning with our own in 7<=(, makes it more difficult for a go*ernment established and go*erned under a democratic constitution, to engage in official acts that run contrary to the basic tenets of democracy and ci*il rights. If a go*ernment insists on proceeding otherwise, the courts will stand in defense of the basic constitutional rights of the people. ,till, the restoration of rule under law, the establishment of national go*ernmental instrumentalities, and the principle of republicanism all ensure that the constitutional go*ernment retains significant powers and prerogati*es, for it is through such measures that it can e:ercise so*ereign will in behalf of the people. Concession to those presidential pri*ileges and prerogati*es should be made if due. .he abuses of past e:ecuti*e go*ernments should not detract from these basic go*ernmental powers, e*en as they may warrant a greater degree of wariness from those institutions that balance power and the people themsel*es. )nd the rule of law should pre*ail abo*e all. .he damage done by martial rule was not merely personal but institutional, and the

proper rebuke to the caprices and whims of the ini-uitous past is to respect the confines of the restored rule of law. L% 5othing in PP 7'78, or any issuance by any President since )-uino, comes e*en close to matching PP 7'=7. It is a ran0 insult to t$ose o! us w$o su!!ered or stood by t$ose oppressed under PP &'D& to e en suggest t$at t$e innocuous PP &'&( is o! eFui alent import. PP 7'78 "oes 5ot Purport or Pretend that the President Has .he Power to Issue "ecrees .here is one seeming similarity though in the language of PP 7'78 and PP 7'=7, harped upon by some of the petitioners and alluded to by the ma?ority. PP 7'78 contains a command to the )rmed $orces +to enforce obedience to all the laws and to all decrees, orders and regulations by Pthe PresidentQ+. ) similar command was made under PP 7'=7. .hat in itself should not be a cause of surprise, since both PP 7'78 and PP 7'=7 e:pressly in*oked the +calling out+ power, albeit in different conte:ts. .he ma?ority howe*er considers that since the President does not ha*e the power to issue decrees, PP 7'78 is unconstitutional insofar as it enforces obedience +to all decrees.+ $or one, it should be made clear that the President currently has no power to issue decrees, and PP 7'78 by no measure seeks to restore such power to the President. Certainly, not e*en a single decree was issued by President )rroyo during the se*eral days PP 7'78 was in effect, or during her term thus far for that matter. )t the same time, such power did once belong to the President during the arcos era and was e:tensi*ely utiliCed by President arcos. It has to be remembered that chafed as we may ha*e under some of the arcos decrees, per the 7<=8 Constitution they still remain as part of the law of the land unless particularly stricken down or repealed by subse-uent enactments. Indeed, when the President calls upon the )rmed $orces to enforce the laws, those subsisting presidential decrees issued by President arcos in the e:ercise of his legislati*e powers are included in the e-uation. .his *iew is supported by the rules of statutory construction. .he particular passage in PP 7'78 reads ++to enforce obedience to all the laws and to all decrees, orders and regulations,+ with the phrases +all the laws and to all decrees+ separated by a comma from +orders and regulations promulgated by me.+ Inherently, laws and those decrees issued by President arcos in the e:ercise of his legislati*e powers, and e*en those e:ecuti*e issuances of President )-uino in the e:ercise of her legislati*e powers, belong to the same class, superior in the hierarchy of laws than +orders and regulations.+ .he use of the con?unction +and+ denotes a ?oinder or union, +relating the one to the other.+ LL .he use of +and+ establishes an association between laws and decrees distinct from orders and regulations, thus permitting the application of the doctrine of noscitur a sociis to construe +decrees+ as those decrees which at present ha*e the force of law. .he di*iding comma further signifies the segregation of concepts between +laws and decrees+ on one hand, and +orders and regulations+ on the other. $urther proof that +laws and decrees+ stand as a class distinct from +orders and regulations+ is the -ualifying phrase +promulgated by me,+ which necessarily refers only to orders and regulations. Otherwise, PP 7'78 would be ridiculous in the sense that the obedience to be enforced only relates to laws promulgated by President )rroyo since she assumed office in %''7. +Laws and decrees+ do not relate only to those promulgated by President )rroyo, but other laws enacted by past so*ereigns, whether they be in the form of the arcos presidential decrees, or acts enacted by the )merican 4o*ernor#4eneral such as the ;e*ised Penal Code. Certainly then, such a -ualification sufficiently addresses the fears of the ma?ority that PP 7'78 somehow empowers or recogniCes the ability of the current President to promulgate decrees. Instead, the ma?ority pushes an interpretation that, if pursued to its logical end, suggests that the President by *irtue of PP 7'78 is also arrogating unto herself, the power to promulgate laws, which are in the mold of enactments from Congress. )gain, in this respect, the grouping of +laws+ and +decrees+ separately from +orders+ and +regulations+ signifies that the President has not arrogated unto herself the power to issue decrees in the mold of the infamous arcos decrees. oreo*er, e*en assuming that PP 7'78 was intended to apply to decrees which the current President could not *ery well issue, such intention is of no conse-uence, since the proclamation does not intend or pretend to grant the President such power in the first place. 9y no measure of contemplation could PP 7'78 be interpreted as reinstating to the President the power to issue

decrees. I cannot see how the phrase +enforce obedience to decrees+ can be the source of constitutional mischief, since the implementation of PP 7'78 will not *est on the President the power to issue such decrees. If the Court truly feels the need to clarify this point, it can do so with the e:pediency of one sentence or e*en a footnote. ) solemn declaration that the phrase is unconstitutional would be like killing a flea with dynamite when insect powder would do. PP 7'78 ) Aalid E:ercise of Prerogati*es Inherent and .raditional in the Office of .he Presidency .hus far, I ha*e dwelt on the legal effects of PP 7'78, non#e:istent as they may be in relation to the citiCenry, the courts or on Congress. ,till, there is another purpose and dimension behind PP 7'78 that fall within the *alid prerogati*es of the President. .he President, as head of state, is cast in a uni-ue role in our polity matched by no other indi*idual or institution. )part from the constitutional powers *ested on the President lie those powers rooted in the symbolic functions of the office. .here is the common e:pectation that the President should stand as the political, moral and social leader of the nation, an e:pectation not referred to in of the oath of office, but e:pected as a matter of tradition. In fact, a President may be cast in crisis e*en if the Chief E:ecuti*e has broken no law, and faithfully e:ecuted those laws that e:ist, simply because the President has failed to win o*er the hearts and minds of the citiCens. )s a Princeton academic, Boodrow Bilson once obser*ed that with the People, the President is e*erything, and without them nothing, and the sad decline of his own e*entual presidency is no better proof of the ma:im. ,uch are among the *agaries of the political office, and generally beyond ?udicial relief or remedy. @ustice ;obert @ackson!s astute obser*ation in Foungstown ,heet J .ube Co. *. ,awyerL& on the uni-ue nature of the presidency, has been widely -uotedK E:ecuti*e power has the ad*antage of concentration in a single head in whose choice the whole 5ation has a part, making him the focus of public hopes and e:pectations. In drama, magnitude, and finality, his decisions so far o*ershadow any others that almost alone he fills the public eye and ear. 5o other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. 9y his prestige as head of state and his influence upon public opinion he e:erts a le*erage upon those who are supposed to check and balance his power which often cancels their effecti*eness. L6 Correspondingly, the uni-ue nature of the office affords the President the opportunity to profoundly influence the public discourse, not necessarily through the enactment or enforcement of laws, but specially by the mere e:pediency of taking a stand on the issues of the day. Indeed, the President is e:pected to e:ercise leadership not merely through the proposal and enactment of laws, but by making such *ital stands. 1.,. President .heodore ;oose*elt populariCed the notion of the presidency as a +bully pulpit+, in line with his belief that the President was the steward of the people limited only by the specific restrictions and prohibitions appearing in the Constitution, or impleaded by Congress under its constitutional powers. any times, the President e:ercises such prerogati*e as a responsi*e measure, as after a mass tragedy or calamity. Indeed, when the President issues a declaration or proclamation of a state of national mourning after a disaster with massi*e casualties, while perhaps de rigeur, is not the formalistic e:ercise of tradition, but a statement that the President, as the representati*e of the $ilipino people, grie*es o*er the loss of life and e:tends condolences in behalf of the people to the berea*ed. .his is leadership at its most solemn. Fet the President is not precluded, in the e:ercise of such role, to be merely responsi*e. .he popular e:pectation in fact is of a pro#acti*e, dynamic chief e:ecuti*e with an ability to identify problems or concerns at their incipience and to respond to them with all legal means at the earliest possible time. .he President, as head of state, *ery well has the capacity to use the office to garner support for those great national -uests that define a ci*iliCation, as President 0ennedy did when by a mere congressional address, he put )merica on track to the goal of placing a man on the moon. .hose memorable presidential speeches memoriCed

by schoolchildren may ha*e not, by themsel*es, made operati*e any law, but they ser*ed not only merely symbolic functions, but help profoundly influence towards the right direction, the public opinion in the discourse of the times. Perhaps there was no more dramatic e:ample of the use of the +bully pulpit+ for such noble purposes than in 7<(&, when an )merican President from .e:as stood before a Congress populated by many powerful bigots, and fully committed himself as no other President before to the cause of ci*il rights with his intonation of those lines from the ci*il rights anthem, +we shall o*ercome.+ $rom an earlier era in )merican history, Lincoln!s Emancipation Proclamation stands out as a presidential declaration which clearly staked )merican polity on the side of the democratic ideal, e*en though the proclamation itself was of dubitable legal *alue. .he proclamation, in short form, +freed the sla*es+, but was not itself free of legal -uestions. $or one, the notion that the President could, by himself, alter the ci*il and legal status of an entire class of persons was dubious then and now, although President Lincoln did ?ustify his action as in the e:ercise of his powers as commander#in#chief during wartime, +as a fit and necessary war measure for suppressing PtheQ rebellion.+ oreo*er, it has been pointed out that the Proclamation only freed those sla*es in those states which were then in rebellion, and it e*entually took the enactment of the .hirteenth )mendment of the 1.,. Constitution to legally abolish in*oluntary ser*itude. L( 5otwithstanding the legal haCe surrounding it, the Emancipation Proclamation still stands as a defining e:ample not only of the Lincoln Presidency, but of )merican democratic principles. It may be remembered to this day not e:actly as an operational means by which sla*es were actually freed, but as a clear rhetorical statement that sla*ery could no longer thenceforth stand. .he President as Chief 4o*ernment ,pokesperson of the democratic ideals is entrusted with a heady but comfortable pursuit. 9ut no less *ital, if somewhat gra*er, is the role of the President as the Chief "efender of the democratic way of life. .he +calling out+ power assures the President such capability to a great e:tent, yet it will not fully suffice as a defense of democracy. .here is a need for the President to rally the people to defend the Constitution which guarantees the democratic way of life, through means other than coerci*e. I assert that the declaration of a state of emergency, on premises of a looming armed threat which ha*e hardly been disputed, falls within such proper functions of the President as the defender of the Constitution. It was designed to inform the people of the e:istence of such a threat, with the e:pectation that the citiCenry would not aid or abet those who would o*erturn through force the democratic go*ernment. )t the same time, the Proclamation itself does not *iolate the Constitution as it does not call for or put into operation the suspension or withdrawal of any constitutional rights, or e*en create or diminish any substanti*e rights. I submit that it would be proper for the Court to recogniCe that PP 7'78 strikes a commendable balance between the Constitution, the +calling out+ power, and the inherent function of the Presidency as defender of the democratic constitution. PP 7'78 keeps within the scope and limitations of these three standards. It asserts the primacy of the democratic order, ci*ilian control o*er the armed forces, yet respects constitutional and statutory guarantees of the people. II. ,ection 78, )rticle MII of the Constitution In ;elation to PP 7'78 y ne:t issue with the ma?ority pertains to the assertion that the President does not ha*e the power to take o*er public utilities or businesses impressed with public interest under ,ection 78, )rticle MII of the Constitution without prior congressional authoriCation. I agree that the power of the ,tate to take o*er such utilities and businesses is highly limited, and should be *iewed with suspicion if actually enforced. Fet -ualifications are in order with regard to how ,ection 78, )rticle MII actually relates of PP 7'78. I agree with the ma?ority that a distinction should be asserted as between the power of the President to declare a state of emergency, and the e:ercise of emergency powers under ,ection 78, )rticle MII. .he President would ha*e the power to declare a state of emergency e*en without ,ection 78, )rticle MII. )t the same time, it should be recogniCed that PP 7'78, on its face and as applied, did not in*ol*e the actual takeo*er of any

public utility or business impressed with public interest. .o some minds, the police action in relation to the "aily .ribune may ha*e flirted with such power, yet ultimately the newspaper was able to independently publish without police interference or court in?unction. It may be so that since PP 7'78 did make e:press reference to ,ection 78, )rticle MII, but it should be remembered that the constitutional pro*ision refers to a two#fold power of the ,tate to declare a national emergency and to take o*er such utilities and enterprises. .he first power under ,ection 78, )rticle MII is not distinct from the power of the President, deri*ed from other constitutional sources, to declare a state of national emergency. ;eference to ,ection 78, )rticle MII in relation to the power to declare a state of national emergency is ultimately superfluous. ) different situation would obtain though if PP 7'78 were in*oked in the actual takeo*er of a utility or business, and in such case, full consideration of the import of ,ection 78, )rticle MII would be warranted. 9ut no such situation obtains in this case, and any discussion relating to the power of the ,tate to take o*er a utility or business under ,ection 78, )rticle MII would ultimately be obiter dictum. I respectfully submit that the Court, in these petitions, need not ha*e engaged this potentially contentious issue, especially as it e:tends to whether under constitutional contemplation, the President may act in behalf of the ,tate in e:ercising the powers under ,ection 78, )rticle MII. 5onetheless, considering that the ma?ority has chosen to speak out anyway, I will e:press agreement that as a general rule, the President may e:ercise such powers under ,ection 78, )rticle MII only under the grant of congressional appro*al. Certainly, the notion that congressional authority is re-uired under ,ection 78, )rticle MII is not e*ident from the pro*ision. E*en $r. 9ernas notes that ,ection 78 does not re-uire, as does )rticle AI, ,ection %LH%I, that the authoriCation be +by law+, thus lea*ing the impression that the authoriCation can come from the President. L8 )fter the 7<=< coup d!etat, President )-uino issued issued Proclamation 5o. 6'L on ( "ecember 7<=<, declaring a state of national emergency, and referring therein to ,ection 78, )rticle MII by citing the entire pro*ision. .he declaration was subse-uently reaffirmed by Congress when two weeks after, it enacted ;epublic )ct 5o. (=%(. 5otably, ,ection LHLI of the law authoriCed the President +to temporarily takeo*er or direct the operation of any pri*ately#owned public utility or business affected with public interest that *iolates the herein declared national policy+. .ellingly, howe*er, such authority was granted by Congress e:pressly +pursuant to )rticle AI, ,ection %LH%I of the Constitution+, and not the take#o*er pro*ision in ,ection 78, )rticle MII. E*idently, the *iew that ,ection 78, )rticle MII re-uires prior congressional authority has some no*elty to it. ,till, I concede that it is fundamentally sound to construe ,ection 78 as re-uiring congressional authority or appro*al before the takeo*er under the pro*ision may be effected. )fter all, the taking o*er of a pri*ately owned public utility or business affected with public interest would in*ol*e an infringement on the right of pri*ate enterprise to profit/ or perhaps e*en e:propriation for a limited period. Constitutionally, the taking of property can only be accomplished with due process of law, L= and the enactment of appropriate legislation prescribing the terms and conditions under which the President may e:ercise the powers of the ,tate under ,ection 78 stands as the best assurance that due process of law would be obser*ed. .he fact that ,ection 78 is purposely ambi*alent as to whether the President may e:ercise the power therein with or without congressional appro*al leads me to conclude that it is constitutionally permissible to recogniCe e:ceptions, such as in e:treme situations wherein obtention of congressional authority is impossible or ine:pedient considering the emergency. I thus dissent to any proposition that such re-uirement is absolute under all circumstances. I maintain that in such e:treme situations, the President may e:ercise such authority sub?ect to ?udicial re*iew. It should be admitted that some emergencies are gra*er and more imminent than others. It is not within the realm of impossibility that by reason of a particularly sudden and gra*e emergency, Congress may not be able to con*ene to grant the necessary congressional authority to the President. Certainly, if bombs from a foreign in*ader are falling o*er anila skies, it may be difficult, not to mention unnecessarily onerous, to re-uire con*ening Congress before the President may e:ercise the functions under ,ection 78, )rticle MII. .he proposition of the ma?ority may be desirable as the general rule, but the correct rule that should be adopted by the Court should not be so absolute so as to preclude the e:ercise by the President of such power under e:treme situations. In response to this argument, the ma?ority cites portions of )raneta *. "inglasan,L< most pertinent of which readsK +.he point is, under this framework of go*ernment, legislation is preser*ed for Congress all the time, not e:cepting periods of crisis no matter

how serious.+ $or one, )raneta did not in*ol*e a situation wherein the President attempted to e:ercise emergency powers without congressional authority/ concerning as it did the e:ercise by President Ruirino of those emergency powers conferred se*eral years earlier by Congress to President RueCon at the onset of the Pacific phase of Borld Bar II. .he Court therein ruled that the emergency that ?ustified then the e:traordinary grant of powers had since e:pired, and that there no longer e:isted any authority on the part of the President to e:ercise such powers, notwithstanding that the law, Commonwealth )ct 5o. (87, +did not in term fi: the duration of its effecti*eness+. Clearly, the conte:t in which the Court made that obser*ation in )raneta is not the same conte:t within which my own obser*ations oscillate. y own submission is premised on the e:treme situation wherein Congress may be physically unable to con*ene, an e:ceptional circumstance which the hard#line stance of the ma?ority makes no concessions for. Indeed, e*en the factual milieu recounted in )raneta conceded that such e:treme circumstance could occur, when it noted President RueCon!s claim that he was impelled to call for a special session of the 5ational )ssembly after foreseeing that +it was most unlikely that the Philippine Legislature would hold its ne:t regular session which was to open on @anuary 7, 7<&%.+ &' .hat the 5ational )ssembly then was able to con*ene and pass Commonwealth )ct 5o. (87 was fortunate, but somewhat a lu:ury nonetheless. Indeed, it is not beyond the realm of possibility that the emergency contemplated would be so gra*e that a sufficient number of members of Congress would be physically unable to con*ene and meet the -uorum re-uirement. 1ltimately though, considering that the authoriCed or actual takeo*er under ,ection 78, )rticle MII, is not presented as a properly ?usticiable issue. 5onetheless, and consistent with the general tenor, the ma?ority has undertaken to decide this non#?usticiable issue, and to e*en place their *iew in the dispositi*e portion in a bid to enshrine it as doctrine. In truth, the Court!s pronouncement on this point is actually obiter. It is hoped that should the issue become ripe for ad?udication before this Court, the obiter is not adopted as a precedent without the -ualification that in e:treme situations wherein congressional appro*al is impossible or highly impractical to obtain, the powers under ,ection 78, )rticle MII may be authoriCed by the President. III. O*erbreadth and +Aoid for Aagueness+ "octrines )pplicable 5ot Only .o $ree ,peech Cases .he ma?ority states that +the o*erbreadth doctrine is an analytical tool de*eloped for testing 2on their faces! statutes in free speech cases+&7, and may thus be entertained +in cases in*ol*ing statutes which, by their terms, seek to regulate only 2spoken words!, and not conduct. ) similar characteriCation is made as to the +*oid for *agueness+ doctrine, which according to the ma?ority, is +sub?ect to the same principles go*erning o*erbreadth doctrine S also an analytical tool for testing 2on their faces! statutes in free speech cases.+&% )s I noted in my ,eparate Opinion in ;omualdeC *. ,andiganbayan, &L citing @ustice 0apunan, there is a *iable distinction between +*oid for *agueness+ and +o*erbreadth+ which the ma?ority sadly ignores. ) *iew has been proferred that +*agueness and o*erbreadth doctrines are not applicable to penal laws.+ .hese two concepts, while related, are distinct from each other. *n one $and1 t$e doctrine o! o erbreadt$ applies generally to statutes t$at in!ringe upon !reedom o! speec$. *n t$e ot$er $and1 t$e / oid-!or- agueness/ doctrine applies to criminal laws1 not merely t$ose t$at regulate speec$ or ot$er !undamental constitutional rig$t. (not merely t$ose t$at regulate speec$ or ot$er !undamental constitutional rig$ts.I .he fact that a particular criminal statute does not infringe upon free speech does not mean that a facial challenge to the statute on *agueness grounds cannot succeed. && .he distinction may pro*e especially crucial since there has been a long line of cases in )merican ,upreme Court ?urisprudence wherein penal statutes ha*e been in*alidated on the ground that they were +*oid for *agueness.+ )s I cited in ;omualdeC *. ,andiganbayan,&6 these cases are Connally *. 4eneral Construction Co,.&( LanCetta *. ,tate of 5ew @ersey,&8 9ouie *. City of

Columbia,&= Papachristou *. City of @ackson*ille,&< 0olender *. Lawson,6'and City of Chicago *.

orales.67

4ranting that perhaps as a general rule, o*erbreadth may find application only in +free speech+ 6% cases, it is on the other hand *ery settled doctrine that a penal statute regulating conduct, not speech, may be in*alidated on the ground of +*oid for *agueness+. In ;omualdeC, I decried the ele*ation of the suspect and radical new doctrine that the +*oid for *agueness+ challenge cannot apply other than in free speech cases. y *iew on this point has not changed, and insofar as the ponencia would hold otherwise, I thus dissent. oreo*er, e*en though the argument that an o*erbreadth challenge can be maintained only in free speech cases has more ?urisprudential moorings, the re?ection of the challenge on that basis alone may pro*e unnecessarily simplistic. I maintain that there is an e*en stronger ground on which the o*erbreadth and +*oid for *agueness+ arguments can be refuted O that Presidential Proclamation 7'78 HPP 7'78I neither creates nor diminishes any rights or obligations whatsoe*er. In fact, I submit again that this proposition is the key perspecti*e from which the petitions should be e:amined. IA. 4eneral Order 5o. 6 ,uffers 5o Constitutional Infirmity .he ma?ority correctly concludes that 4eneral Order 5o. 6 is generally constitutional. Howe*er, they make an unnecessary distinction with regard to +acts of terrorism+, pointing out that Congress has not yet passed a law defining and punishing terrorism or acts of terrorism. .hat may be the case, but does the ma?ority seriously suggest that the President or the ,tate is powerless to suppress acts of terrorism until the word +terrorism+ is defined by lawG .errorism has a widely accepted meaning that encompasses many acts already punishable by our general penal laws. .here are se*eral 1nited 5ations and multilateral con*entions on terrorism 6L, as well as declarations made by the 1nited 5ations 4eneral )ssembly denouncing and seeking to combat terrorism. 6& .here is a general sense in international law as to what constitutes terrorism, e*en if no precise definition has been adopted as binding on all nations. E*en without an operati*e law specifically defining terrorism, the ,tate already has the power to suppress and punish such acts of terrorism, insofar as such acts are already punishable, as they almost always are, in our e:tant general penal laws. .he President, tasked with the e:ecution of all e:isting laws, already has a sufficient mandate to order the )rmed $orces to combat those acts of terrorism that are already punishable in our ;e*ised Penal Code, such as rebellion, coup d!etat, murder, homicide, arson, physical in?uries, gra*e threats, and the like. Indeed, those acts which under normal contemplation would constitute terrorism are associated anyway with or subsumed under lawless *iolence, which is a term found in the Constitution itself. .hus long ago, the ,tate has already seen it fit to punish such acts. oreo*er, 4eneral Order 5o. 6 cannot redefine statutory crimes or create new penal acts, since such power belongs to the legislati*e alone. $ortunately, 4eneral Order 5o. 6 does not assume to make such redefinitions. It may ha*e been a different matter had 4eneral Order 5o. 6 attempted to define +acts of terrorism+ in a manner that would include such acts that are not punished under our statute books, but the order is not comported in such a way. .he proper course of action should be to construe +terrorism+ not in any legally defined sense, but in its general sense. ,o long as it is understood that +acts of terrorism+ encompasses only those acts which are already punishable under our laws, the reference is not constitutionally infirm. .he ma?ority cites a theoretical e:ample wherein a group of persons engaged in a drinking spree may be arrested by the military or police in the belief that they were committing acts of terrorism pursuant to 4eneral Order 5o. 6. 1nder the same logical framework that group of persons engaged in a drinking spree could *ery well be arrested by the military or police in the belief that they are committing acts of lawless *iolence pursuant to 4eneral Order 5o. 6, instead of acts of terrorism. Ob*iously such act would be +abuse and oppression+ on the part of the military and the police, whether ?ustified under +lawless *iolence+ or +acts of

terrorism+. Fet following the logic of the ma?ority, the directi*e to pre*ent acts of +lawless *iolence+ should be nullified as well. If the point of the ma?ority is that there are no ?usticiable standards on what constitutes acts of terrorism, it should be pointed out that only the following scenarios could ensue. $or one, a person would actually be arrested and charged with +acts of terrorism+, and such arrest or charge would be thrown out of the courts, since our statute books do not criminaliCe the specific crime of terrorism. ore probably, a person will be arrested and charged for acts that may under the layperson!s contemplation constitutes acts of terrorism, but would be categoriCed in the information and charge sheet as actual crimes under our ;e*ised Penal Code. I simply cannot see how 4eneral Order 5o. 6 could *alidate arrests and con*ictions for non#e:istent crimes. Interestingly, the ma?ority, by taking issue with the lack of definition and possible broad conte:t of +acts of terrorism+, seems to be positi*ely applying the arguments of +o*erbreadth+ or +*oid for *agueness+, arguments which they earlier re?ected as applicable only in the conte:t of free e:pression cases. .he inconsistency is breath#taking. Bhile I disagree with the ma?ority#imposed limitations on the applicability of the +o*erbreadth+ or +*oid for *agueness+ doctrines, I likewise cannot accede to the application of those doctrines in the conte:t of 4eneral Order 5o. 6, for the same reason that they should not apply to PP 7'78. 5either 4eneral Order 5o. 6 nor PP 7'78 is a penal statute, or ha*e an operati*e legal effect of infringing upon liberty, e:pression or property. )s such, neither 4eneral Order 5o. 6 nor PP 7'78 can cause the depri*ation of life, liberty or property, thus di*orcing those issuances from the conte:t of the due process clause. .he same absence of any binding legal effect of these two issuances correspondingly disassociates them from the constitutional infringement of free e:pression or association. 5either +*oid for *agueness+ nor +o*erbreadth+ therefore lie. )nother point. .he ma?ority concludes from 4eneral Order 5o. 6 that the military or police is limited in authority to perform those acts that are +necessary and appropriate actions and measures to suppress and pre*ent acts of terrorism and lawless *iolence,+ and such acts committed beyond such authority are considered illegal. I do not dispute such conclusion, but it must be emphasiCed that +necessary and appropriate actions and measures+ precisely do not authoriCe the military or police to commit unlawful and unconstitutional acts themsel*es, e*en if they be geared towards suppressing acts of terrorism or lawless *iolence. Indeed1 wit$ t$e emp$asis t$at PP &'&( does not create new rig$ts or obligations1 or diminis$ e;isting ones1 it necessarily !ollows t$at )eneral *rder +o. ,1 e en i! premised on a state o! emergency1 cannot aut$ori5e t$e military or police to ignore or iolate constitutional or statutory rig$ts1 or en!orce laws completely alien to t$e suppression o! lawless iolence. )gain, following the cardinal principle of legal hermeneutics earlier ad*erted to, 4eneral Order 5o. 6 should be *iewed in harmony with the Constitution, and only if it the Order irreconcilably de*iates from the fundamental law should it be struck down. A. Court ,hould ;efrain aking )ny $urther "eclaration, $or 5ow, ;elating to the Indi*idual 4rie*ances ;aised by the Petitioners in ;elation .o PP 7'78 I respectfully disagree with the manner by which the ma?ority would treat the +*oid as applied+ argument presented by the petitioners. .he ma?ority adopts the tack of citing three particular in?uries alleged by the petitioners as inflicted with the implementation of PP 7'78. .he ma?ority analyCes the alleged in?uries, correlates them to particular *iolations of the 9ill of ;ights, and ultimately concludes that such *iolations were illegal. .he problem with this approach is that it would fore*er deem the Court as a trier or re*iewer at first instance o*er -uestions in*ol*ing the *alidity of warrantless arrests, searches, seiCures and the dispersal of rallies, all of which entail a substantial le*el of factual determination. I agree that PP 7'78 does not e:pand the grounds for warrantless arrests, searches and seiCures or dispersal of rallies, and that the proclamation cannot be in*oked before any court to assert the *alidity of such unauthoriCed actions. Fet the problem with directly ad?udicating that the in?uries inflicted on "a*id, et al., as illegal, would be that such would ha*e been done with undue haste, through an improper legal a*enue, without the appropriate trial of facts, and without e*en impleading the particular officers who effected the arrests>searches>seiCures. I understand that the in?urious acts complained of by the petitioners upon the implementation of PP 7'78 are a source of gra*e

concern. Indubitably, any person whose statutory or constitutional rights were *iolated in the name of PP 7'78 or 4eneral Order 5o. 6 deser*es redress in the appropriate ci*il or criminal proceeding, and e*en the minority wishes to makes this point as emphatically clear, if not moreso, as the ma?ority. >et a ruling !rom t$is %ourt1 wit$out t$e proper !actual basis or prayer !or remuneration !or t$e inEury sustained1 would ultimately be merely symbolic. ?$ile t$e %ourt will not be $armed by a symbolic rea!!irmation o! commitment to t$e principles in t$e #ill o! Rig$ts1 it will be $armed by a ruling t$at unduly and inappropriately e;pands t$e ery limited !unction o! t$e %ourt as a trier o! !acts on !irst instance. In my dissent in .e*es *. ,andiganbayan,66 I alluded to the fact that our legal system may run counter#intuiti*e in the sense that the seemingly or ob*iously guilty may still, after trial, be properly ac-uitted or e:onerated/ to the e:tent that e*en an accused who murders another person in front of li*e tele*ision cameras broadcast to millions of sets is not yet necessarily guilty of the crime of murder or homicide.6( Hence, the necessity of a proper trial so as to allow the entire factual milieu to be presented, tested and e*aluated before the court. In my theoretical e:ample, the said accused should nonetheless be ac-uitted if the presence of e:empting circumstances is established. .he same principle applies in these cases. Certainly, we in the Court can all agree that PP 7'78 cannot be in*oked to ?ustify acts by the police or military officers that go beyond the Constitution and the laws. 9ut the course of prudence dictates that the pronouncement of such a doctrine, while enforceable in a court of law, should not yet e:tend itself to specific e:amples that ha*e not yet been properly litigated. .$e !unction o! t$is %ourt is to ma0e legal pronouncements not based on /ob ious/ !acts1 but on pro en !acts. ) haphaCard declaration by the Court that the arrests or seiCures were +illegal+ would likewise preclude any meaningful re*iew or ree*aluation of pertinent legal doctrines that otherwise could ha*e been ree:amined had these acts been properly challenged in regular order. $or e:ample, the matter of the warrantless arrests in these cases could ha*e most certainly compelled the Court to again consider the doctrine laid down in 1mil *. ;amos on warrantless arrests and rebellion as a continuing crime, a doctrine that may merit renewed e*aluation. Fet any healthy ree:amination of 1mil, or other precedents for that matter, re-uire the presentation and trial of the proper factual predicates, a course which the ma?ority unfortunately +short#cuts+ in this present decision. Of course, despite the grandilo-uent pronouncement by the ma?ority that the acts complained of by the petitioners and implemented pursuant to 4eneral Order 5o. 6 are illegal, it could nonetheless impose ci*il, criminal or administrati*e sanctions on the indi*idual police officers concerned, as these officers had not been +indi*idually identified and gi*en their day in court+. Of course, the Court would be left with pie on its face if these persons, once +gi*en their day in court+, would be able to indubitably establish that their acts were actually ?ustified under law. Perhaps worse, the pronouncement of the ma?ority would ha*e had the effect of pre?udging these cases, if e*er lodged, e*en before trial on the merits. Certainly, a declaration by the ma?ority that PP 7'78 or 4eneral Order 5o. 6 cannot ?ustify *iolation of statutory or constitutional rights Ha declaration which the minority would ha*e no -ualms assenting toI would sufficiently arm those petitioners and other persons whose rights may ha*e been in?ured in the implementation of PP 7'78, with an impeccable cause of action which they could pursue against the *iolators before the appropriate courts. )t the same time, if the officers or officials concerned ha*e basis to contend that no such rights were *iolated, for ?ustifications independent of PP 7'78 or 4eneral Order 5o. 6, such claims could recei*e due consideration before the courts. ,uch a declaration would s-uarely entrench the Court as a defender of the 9ill of ;ights, foster enforceable means by which the in?ured could seek actual redress for the in?ury sustained, and preser*e the integrity and order of our procedural law. AI. Conclusion .he country#wide attention that the instant petitions ha*e drawn should not make the Court lose focus on its principal mission, which is to settle the law of the case. On the contrary, the highly political nature of these petitions should ser*e as forewarning for the Court to proceed e: abundante cautelam, lest the institution be unduly dragged into the partisan mud. .he credibility of the Court is ensured by making decisions in accordance with the Constitution without regard to the indi*idual personalities in*ol*ed/

with sights set on posterity, obli*ious of the popular fla*or of the day. 9y deciding non#?usticiable issues and pre?udging cases and contro*ersies without a proper trial on the merits, the ma?ority has diminished the potency of this Court!s constitutional power in fa*or of rhetorical statements that afford no -uantifiable relief. It is for the poet and the politician to pen beautiful paeans to the people!s rights and liberties, it is for the Court to pro*ide for *iable legal means to enforce and safeguard these rights and liberties. Bhen the passions of these times die down, and sober retrospect accedes, the decision of this Court in these cases will be looked upon as an e:tended ad*isory opinion. Fes, PP 7'78 and 4eneral Order 5o. 6 warrant circumspect scrutiny from those interested and tasked with preser*ing our ci*il liberties. .hey may e*en stand, in the appropriate conte:ts, as *iable partisan political issues. 9ut the plain fact remains that, under legal contemplation, these issuances are *alid on their face, and should result in no constitutional or statutory breaches if applied according to their letter. I *ote to "I, I,, all the petitions. 6A+.7 *. .I+)A )ssociate @ustice

"ootnotes
7

4.;. 5os. 76<'=6, 76<7'L, 76<7=6, 76<7<(, L $ebruary %''&, &%7 ,C;) (6(. ;. )gpalo, ,tatutory Construction, Lrd.ed. H7<<6I, at %7.

+Bhen a statute is reasonably susceptible of two constructions, one constitutional and the other unconstitutional, that construction in fa*or of its constitutionality shall be adopted and the construction that will render it in*alid re?ected.+ ,ee ;. )gpalo, id., at %((/ citing utuc *. CO ELEC, 4.;. 5o. L%878, 5o*. %(, 7<8', L( ,C;) %%=/ @. . .uason J Co., Inc. *. Land .enure )dm., 4.;. 5o. %7'(&, $eb. 7=, 7<8', L7 ,C;) &7L/ )merican 9ible ,ociety *. City of anila, 7'7 Phil. L=( H7<68I/ )lba *. E*angelista, 7'' Phil. (=L H7<68I/ addumba *. OCaeta, =% Phil. L&6 H7<&=I/ 9enguet E:ploration, Inc. *. "epartment of )griculture and 5atural ;esources, 4.;. 5o. %<6L&, $e. %=, 7<88, 86 ,C;) %=6 H7<88I/ "e la CruC *. Paras, 4.;. 5o. &%6<7, @uly %6, 7<=L, 7%L ,C;) 6(<.
L &

,ee Constitution, ,ection 78, )rticle AII. ,ee Constitution, ,ection 7=, )rticle AII. ,ee Constitution, ,ection 7, )rticle AII. .he plenary legislati*e power being *ested in Congress. ,ee Constitution, ,ection 7, )rticle AI. +P.he PresidentQ shall ensure that the laws be faithfully e:ecuted.+ ,ee Constitution, ,ection 78, )rticle AII. ,upra note &. +5o officer or employee of the ci*il ser*ice shall be remo*ed or suspended e:cept for cause pro*ided by law.+

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7'

,ee Constitution, ,ection %HLI, )rticle IM#9.

77

,ee, e.g.,

arcos *.

anglapus, 4.;. 5o. ==%77, %8 October 7<=<, 78= ,C;) 8(', 8(L.

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,ee )dministrati*e Code, ,ection &, Chapter %, 9ook III. ,ee ,ection 7=, )rticle AII, Constitution. L<% Phil. (7= H%'''I Id. at (%8. Id. at (&&. Id. at (L(. Id. at (&L. Id. ,anlakas *. E:ecuti*e ,ecretary, supra note 7, at ((=. Id. at (88. ,upra note =.

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76

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78

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.he declaration of martial law then within the President to make under authority of ,ection 7'H%I, )rticle AII of the 7<L6 Constitution.
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5o. L#L66&(, 78 ,eptember 7<8&, 6< ,C;) 7=L. )-uino, @r. *. Enrile, id. at %&'#%&7. )-uino, @r. *. Enrile, id. at %(%#%(L, Castro, @., ,eparate Opinion. Id. at L<=#L<<, 9arredo, @., concurring. Id. at &'6#&'(, 9arredo, @., concurring. Id. at &%L, 9arredo, @., concurring. Constitution, ,ection 7=, )rticle AII. Constitution, ,ection 7=, )rticle AII. ,ee i?ares *. Hon. ;anada, 4.;. 5o. 7L<L%6, 7% )pril %''6.

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,ee ;. )gpalo, ,tatutory Construction, p. %'(. L&L 1.,. 68<, (6L#(6&, @. @ackson, concurring. Ibid. ,ee 4eorge $ort ilton, .he 1se of Presidential PowerK 78=<#7<&L, 7<=' ed., at 77<#7%'.

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,ee @. 9ernas, ,.@., .he 7<=8 Constitution of the ;epublic of the PhilippinesK ) Commentary, %''L ed., at 77=L.
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,ee ,ection 7, )rticle III, Constitution. =& Phil. L(= H7<&<I. Id. at L8<. "ecision, infra. Id. 4.;. 5o. 76%%6<, %< @uly %''&, &L6 ,C;) L87, L<6#&'(. Id., at L<=, citing Estrada *. ,andiganbayan, &%7 Phil. %<', @. 0apunan, dissenting, at pp. L=%#L=&. Id., at L<=#&'7. %(< 1.,. L=6, L<L H7<%(I. L'( 1.,. &67 H7<L<I. L8= 1.,. L&8 H7<(&I. &'6 1.,. 76( H7<8%I. &(7 1.,. L6% H7<=LI. Case 5o. <8#77%7, 7' @une 7<<<.

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67

9ut see 1nited ,tates *. ;obel, L=< 1.,. %6= H7<(8I, wherein the 1.,. ,upreme Court in*alidated a portion of the ,ub*ersi*e Control )cti*ities )ct on the ground of o*erbreadth as it sought to proscribe the e:ercise the right of free association, also within the $irst )mendment of the 1nited ,tates Constitution but a distinct right altogether from free e:pression.
6%

.o name a few, the Con*ention on the Pre*ention and Punishment of Crimes against Internationally Protected Persons, including "iplomatic )gents H7<8LI/ International Con*ention for the ,uppression of .errorist 9ombings H7<<8I/ International Con*ention for the ,uppression of the $inancing of .errorism H7<<<I/ the International Con*ention for the ,uppression of )cts of 5uclear .errorism H%''6I. ,ee +1nited 5ations .reaty Collection 3
6L

Con*entions on .errorism+, httpK>>untreaty.un.org>English>.errorism.asp Hlast *isited, L' )pril %''(I.

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,ee, e.g., ;esolution 5o. &<>(', )dopted by the 1nited 5ations 4eneral )ssembly on 78 $ebruary 7<<6. 4.;. 5o. 76&7=%, 78 "ecember %''&, &&8 ,C;) L'<, LL6#L&=. @. .inga, dissenting. Id. at L&6.

66

6(

.he Lawphil Pro?ect # )rellano Law $oundation